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 An Introduction to the
U.S. Military Justice System
I By Hon. Roger A. Dr

Military law includes jurisdiction exercised by courts-martial and the

jurisdiction exercised by commanders with respect to nonjudicial
punishment. The purpose of military law is to promote justice, to
assist in maintaining good order and discipline in the armed forces,
to promote efficiency and effectiveness in the military establishment,
and thereby to strengthen the national security of the United States.

-Preamble to the Manual for Courts-Martial, United States

the members of their command, the regarding the offense of which he is

he military
parallels thejustice
tice system but
system
federal
has many
closely
criminal jus-
unique
features that enable it to function
wherever U.S. military members hap-
pen to be stationed-ashore or afloat,
in the United States or around the
world. To maintain good order and dis-
cipline in the nation's armed forces,'
the military criminal code-the Uni-
form Code of Military Justice
(UCMJ)2-- governs all servicemem-
bers, regardless of their location. The
UCMJ applies to offenses committed
by servicemembers on active duty
even if the offense occurred while off
duty or outside a military installation.
The UCMJ is a comprehensive crimi-
nal code encompassing most offenses
found in civilian criminal codes (such
as murder,3 rape,4 larceny,5 and
assault6) and uniquely military offens-
es (such as desertion, 7 disrespect to-
ward a superior,' violation of orders,9
and misbehavior before the enemy'l).
Due to the significant authority
that military commanders have over
military justice system has evolved to accused or suspected and that any
provide enhanced rights to an accused statement made by him may be used
as evidence against him in a trial by
servicemember to help balance the
scales once disciplinary action is con- court-martial.
templated. These rights are generally
far greater than those available to a
typical civilian criminal defendant.
They begin at the investigatory stage
and continue through the post-trial
and appellate process.
The Military Right against
Self-Incrimination
Article 31 of the UCMJ states:
Hon. Rodger A. Drew, Jr., is the
(a) No person subject to this chap-
deputy judge advocate of the United
ter may compel any person to Nations Command and United States
incriminate himself or to answer
Forces-Korea and the staff judge advo-
any question the answer to which cate of the Air Force Element, United
may tend to incriminate him.
States Forces-Korea, Yongsan Garrison,
(b) No person subject to this chapter South Korea. He has served as a mili-
may interrogate, or request any state- tary judge for five years, the Air Force
ment from, an accused or a person deputy chief trial judge, a staff judge
suspected of an offense without first advocate three times, a circuit defense
informing him of the nature of the counsel, and a trial counsel. He also is
accusation and advising him that he the editor of the military judges'
does not have to make any statement Electronic Benchbook.

-Judges' Journal ' Summer 2006

 Article 31 predates the landmark
Miranda" decision by sixteen years.' 2
Under it, whenever a servicemember
is questioned by military authorities
about an offense of which he is sus-
pected, the questioner must advise the
suspect of the nature of the accusa-
tion, of the right to remain silent, and tice system goes to great lengths to
that any statement he makes may be
used against him.' 3 The questioner
need not be a law enforcement offi-
cial. In recognition of the potentially
coercive nature of such questioning in
the military environment, even a mili-
tary supervisor would generally be
required to advise a suspect of his
Article 31 rights. Furthermore, be-
cause under normal circumstances a
servicemember would not feel at lib-
erty to simply disregard a superior's
questions, Article 31 does not require
a custodial interrogation. Any ques-
tioning of a suspect by a member of
military law enforcement or the sus-
pect's chain of command will trigger
Article 31.
The Military Right to Counsel
The right to counsel is similar to that
under the federal system but is enhanced
in favor of the military accused. The
Miranda right to counsel during cus-
todial interrogations applies equally to his military counsel, at his option.
military suspects. However, a military
suspect is entitled to military legal
counsel free of charge, regardless of the tigative resources and to include
ability to pay for a civilian counsel.'4 expert assistance in appropriate cases,
A military legal counsel is a mili-
tary attorney who has been designated
by the service judge advocate general
as a judge advocate. While each mili-
tary service has its own regulations
regarding the appointment of defense
counsel, in the Air Force the judge
advocate general personally appoints
defense counsel. An Air Force judge
advocate is considered for appoint-
ment to a defense counsel position
only after gaining experience as a
military prosecutor (a trial counsel)
and only upon recommendation from
his supervising judge advocate (a staff denial with the military judge.
judge advocate).
Although the military defense coun-
sel is generally from the same service
as the accused and often assigned to
the same military installation, the
defense counsel's chain of command
is separate and distinct from the local
military authorities. The military jus-
ensure not only the reality but also
the perception of independence of
military defense counsel, including
the production of "commercials" on
the Armed Forces Radio and
Television Service touting the inde-
pendence of defense counsel.
In addition to the right to be repre-
sented by the military defense coun-
sel assigned to his case, the accused
has the right to be represented, again
free of charge, by a different military
counsel of his own choosing if that
counsel is reasonably available. 5
While the accused has the right to only
one military counsel, if he desires he
may request that his originally
assigned counsel remain on the case
16
as associate counsel.
If the accused chooses to do so, he
may hire a civilian lawyer at his own
expense. 7 If he does hire a civilian
lawyer, he may continue to be repre-
sented by his military counsel to assist
his civilian lawyer or he can release
The military right to counsel also
includes the right to necessary inves-
at government expense. 8 The UCMJ
guarantees that the defense has equal
opportunity with the government to
obtain witnesses and other evidence.' 9
However, because military defense
counsel are not generally provided
their own funds to hire experts and
outside investigators, they must
request funding from the government.
This procedure requires the defense
counsel to establish good cause for
the request.'0 If the government
denies the request for expert assis-
tance, the defense can challenge the
If the accused is ultimately con-
victed at a court-martial and his case is
appealed, a military appellate defense
counsel-once again, free of charge-
is assigned to represent him on
appeal.." The accused's appellate
defense counsel is not the same coun-
sel that represented him at trial, to
ensure that the appellate counsel is free
to review the trial independently and
raise any meritorious issues, including
the ineffectiveness of trial defense
counsel. As at the trial level, the
accused has the right to hire a civilian
appellate defense counsel at his own
expense, in addition to or in lieu of his
military appellate defense counsel.
The Categories of Military
Disciplinary Action
The military justice system consists
of five major categories of discipli-
nary action: administrative action;
commanding officer's nonjudicial
punishment under Article 15 of the
UCMJ; summary court-martial under
Article 20 of the UCMJ; special
court-martial under Article 19 of the
UCMJ; and general court-martial
under Article 18 of the UCMJ. The
latter four categories are punitive
actions in which the servicemember
can be punished with various sanc-
tions, including extra duties, reduction
in rank, forfeiture of pay, confinement,
and, in the case of the general court-
martial, the death penalty.
Administrative actions. Any
supervisor can issue an administrative
counseling, admonition, or reprimand.
The servicemember has limited rights,
due to the very limited nature of the
action itself. These consist primarily of
an opportunity to make a rebuttal that
would be filed with the action.
Involuntary discharge from the
service is also an administrative action.
However, it may only be initiated by
the servicemember's commander and
may only be ultimately approved by a
higher level commander. While the
procedures are governed by service
regulation, the respondent is entitled,
at a minimum, to administrative due
-Judges'Journal • Summer 2006
 process. Depending on the basis for
the discharge,22 the level of discharge
characterization sought,23 the rank of
the respondent,' and the length of the
respondent's service in the military,
the respondent's rights can range
from the right to receive written
notice of the basis for the proposed
discharge and evidence supporting the
The defense counsel's chain
of command is separate and
distinct from the local
military authorities.
discharge, along with an opportunity
to respond in writing, to the right to
present his case before an administra-
tive discharge board. An administra-
tive discharge board hearing is very
similar to a civil court trial, with a right
to call and cross-examine witnesses.
Nonjudicial punishments. Non-
judicial punishment may be imposed
for minor offenses by a servicemem-
ber's commander or officer in charge.
The available punishments depend on
the rank of the commander and the
rank of the servicemember being pun-
ished. The maximum punishment is
reduction in rank, correctional cus-
tody for thirty days, and forfeiture of
one-half pay for two months.
The servicemember is guaranteed
basic due process and has the right to
be informed of the charges; to be
informed of the evidence to be consid-
ered; to make a personal appearance; to
26
be accompanied by a spokesperson;
to present matters in defense, extenua-
tion, and mitigation; to present favor-
able witnesses and to confront adverse
'-Judges' Journal • Summer 2006
witnesses if they are reasonably avail-
able; and to have the proceedings
open to the public.27 The rules of evi-
dence, other than with respect to priv-
ileges, do not apply to nonjudicial
punishment proceedings. No particu-
lar standard of proof applies. 28 Rather,
the commander must conclude that
the servicemember either committed
- MNE
the alleged offense or did not. How-
ever, with the exception of service-
members in the sea services while
attached to or embarked on a vessel,
the servicemember has the right to
"turn down" nonjudicial punishment
and demand trial by court-martial,
where he would enjoy the full array
of rights.
Summary courts-martial. A sum-
mary court-martial is the lowest level
of court-martial and is analogous to a
justice of the peace or municipal
court proceeding. It is a simplified
procedure designed to promptly adju-
dicate minor offenses. It is presided
over by an officer who need not be a
judge advocate or attorney. The maxi-
mum punishment at a summary court-
martial is reduction in rank, confine-
ment for thirty days, and forfeiture of
two-thirds pay for one month. 29
While the UCMJ does not provide
a right to counsel at a summary court-
martial, some service regulations,
such as Air Force Instruction 51-201,
do provide for military defense coun-
sel, free of charge.3" If the accused
hires civilian counsel at his own
expense, the counsel may represent
the accused at a summary court-mar-
tial if it will not unreasonably delay
the proceedings and if military exi-
gencies do not preclude it.31
Like nonjudicial punishment pro-
ceedings, and in recognition of the
more limited rights available in this
forum, an accused must consent to be
subject to a summary court-martial.32
If the accused objects, his case will be
referred to a special court-martial,
where he will enjoy the full range of
rights afforded to most civilian crimi-
nal defendants. However, depending
on the offense(s) involved, he will
usually face a much broader range of
punishment, including confinement
for up to one year and the possibility
of a bad conduct discharge.
A finding of guilty by a summary
court-martial is not considered to be a
conviction in most, if not all, jurisdictions.
Special and general courts-mar-
tial. A special court-martial is the mili-
tary equivalent of a civilian misde-
meanor court. The maximum punish-
ment available is reduction to the low-
est enlisted rank, confinement for one
year, forfeiture of two-thirds pay for
twelve months, and a bad conduct dis-
charge.33 A general court-martial is the
military equivalent of a civilian felony
court. The maximum punishment avail-
able is that authorized by the UCMJ for
the particular offense, which may
include a bad conduct or dishonorable
discharge, confinement for life-with
or without the possibility of parole-
or the death penalty.34 A finding of
guilty by either a special or general
court-martial is considered to be a fed-
eral conviction by most jurisdictions.
Both special and general courts-
martial are presided over by a military
judge who is a judge advocate spe-
cially certified to be qualified for that
duty by the service judge advocate
general.3 5 Military judges are experi-
enced judge advocates, usually in the
senior field grades.36 All military
judges attend the military judge
course taught by the Army at the
Judge Advocate General's School of
the U.S. Army, adjacent to the
University of Virginia Law School in
Charlottesville, Virginia. In addition,
many military judges attend supple-
mental courses at the National
Judicial College in Reno, Nevada.
Convening Courts-Martial
The process of convening a court-
martial involves "preferring" charges,
forwarding the charges, and "refer-
ring" the charges to a court-martial.
The preferral process consists of
the "accuser"--often the accused's
immediate commander-signing an
oath on the charge sheet that he has
personal knowledge of or has investi-
gated the allegations and that they are
true to the best of his knowledge and
belief.37 The accuser then forwards
the charges to the summary court-
martial convening authority, that is,
the commander who has summary
court-martial jurisdiction over the
accused. That summary court-martial
convening authority may either dis-
miss the charges, refer the charges to
a summary court-martial, or forward
the charges to the special court-mar-
tial convening authority, a superior
commander who has special court-
martial jurisdiction over the accused.38
The special court-martial convening
authority may, in turn, dismiss the
charges, refer the charges to either a
summary or special court-martial, or
direct a pretrial investigation to deter-
mine whether the charges should be
forwarded to the general court-martial
convening authority for disposition.39
Article 32 Hearings
Unless waived by the accused, no
charges may be referred to a general
court-martial unless a thorough and
impartial investigation is conducted
pursuant to Article 32 of the UCMJ. 4
An Article 32 hearing is similar to a
combination of a civilian grand jury
hearing and a preliminary hearing. It
serves as both an investigative process,
ensuring that no charges are brought
before a general court-martial unless
they are sufficiently serious and sup-
ported by adequate evidence, and a
discovery process, providing the
defense an opportunity to examine the
government's evidence and to cross-
examine the government's witnesses.
Unlike a typical civilian grand jury
hearing, the accused is present
throughout the hearing with counsel,
whether military or civilian (or
both).41 In addition to the right to
examine the government's evidence
and witnesses, the accused may pres-
ent anything he desires on his own
behalf, either in defense or in mitiga-
tion, and the investigating officer
must examine all available witnesses
requested by the accused.42
An Article 32 investigating officer
is generally an experienced judge
advocate who may have no involve-
ment, either before or after the hear-
ing, in prosecuting or defending the
case.43 Ordinarily, an Article 32 hear-
ing is open to spectators and may
only be closed for good cause." With
the exception of the rules regarding
self-incrimination and privileges, the
rules of evidence do not apply to an
Article 32 hearing."5
After a hearing, the investigating
officer compiles a report summarizing
the evidence considered, addressing
any mental responsibility issues, iden-
tifying whether essential witnesses
will be available for trial, and recom-
mending any changes to the form of
the charges. The investigating officer
then makes a conclusion whether rea-
sonable grounds exist to believe that
the accused committed the alleged
offenses and also makes a recommen-
dation regarding the disposition of the
charges-that is, dismissal, amend-
ment, or preferral of additional charges;
referral to a general court-martial; or
referral to a lesser court-martial. 46
After considering the Article 32
hearing report and the written pretrial
advice of his staff judge advocate, the
general court-martial convening
authority may dismiss the charges,
refer them to either a summary or
special court-martial, direct a further
pretrial investigation, or refer them to
a general court-martial.47
Guilty Plea Proceedings
A military judge may not accept an
accused's guilty plea without first
conducting a providency inquiry
regarding the plea. This so-called
Care inquiry' is a probing discussion
with the accused under oath. It must
include a discussion of the accused's
rights at a court-martial, including
those that he would waive by virtue
of a guilty plea; the elements of the
offenses to which the accused is
offering to plead guilty; and the
underlying facts supporting the plea.
As to the last item, the accused must
describe what he did that makes him
believe that he is actually guilty of the
offense(s). He must convince the mili-
tary judge that he is making a know-
ing and voluntary plea. An accused
may not plead guilty in exchange for
a lighter sentence or for any other rea-
son unless he also believes and accepts
that he is in fact guilty.
The military justice system permits
a form of plea bargain known as a
pretrial agreement. In exchange for a
promise by the accused to plead
guilty, the convening authority may
agree to refer the charges to a particu-
lar level of court-martial, to refer a
capital case as noncapital, to with-
draw one or more allegations, to
direct the prosecution to present no
evidence as to one or more allega-
tions, and/or to place a limit on the
possible sentence. 49 The last action
is the most common provision of a
pretrial agreement.
Unlike most civilian plea bargains,
a pretrial agreement is not an agreed-
upon sentence. Rather, it is merely a
new ceiling on the maximum punish-
ment that can be imposed. However,
neither the judge nor the court mem-
bers-the military jury-are informed
of the reduced ceiling. If the judge or
court members adjudge a sentence
below the pretrial agreement limit, the
-Judges'Journal • Summer 2006
accused receives the lower adjudged equivalent of a civilian bench trial. then at least one-third of the panel,
sentence. If the sentence adjudged is Unless the accused selects the latter, after all challenges have been granted,
greater than that in the pretrial agree- the court members will determine both must be enlisted.59
ment, the convening authority will the court's findings and its sentence. The venire is selected by the con-
reduce it. A special court-martial panel must vening authority. It is composed of
contain at least three members. A persons who, in his opinion, are best
The Military Rules of Evidence noncapital general court-martial panel qualified for court member duty by
must contain at least five members. reason of age, education, training,
All courts-martial, including summa-
A capital general court-martial panel experience, length of service, and
ry courts-martial, are governed by the
usually must contain at least twelve judicial temperament.' Members of a
Military Rules of Evidence, which are
members. 7 Note that the numbers typical military venire are very expe-
based on the Federal Rules of
above reflect the minimum number rienced and highly educated. With
Evidence.5" Amendments to the
required, not an absolute number. If, very rare exceptions, all commis-
Federal Rules of Evidence will auto-
matically apply to the Military Rules
of Evidence eighteen months after the
effective date of those amendments
unless specific action is taken to the
contrary by the5 president of the
United States. '
Like other U.S. criminal courts, a
military accused is presumed to be
innocent until the accused's guilt is
established by legal and competent evi-
dence beyond a reasonable doubt. The
burden of proof to establish the guilt of
the accused is upon the government.52
A court-martial is a bifurcated pro-
ceeding. If there are findings of
guilty, then a sentencing hearing pro-
ceeds, usually immediately thereafter.
In addition to the evidence introduced
during findings, additional informa-
tion is introduced about the accused,
including prior convictions and reha-
bilitative potential, along with any mat-
ters in aggravation, including victim
impact, and any matters in extenuation
after voir dire, seven members remain sioned officers are required to have a
or mitigation.53 While the rules of evi-
in a noncapital general court-martial, bachelor's degree before commission-
dence apply during the sentencing
the panel will consist of seven mem- ing. A large percentage of officers
hearing, the defense may request the
bers rather than five. have a master's or other advanced
rules be relaxed to permit the consider-
All members of the court must out- degree. Most enlisted persons have at
ation of various hearsay statements 4
5 rank the accused unless, because of least an associate's degree.
regarding extenuation and mitigation.
the accused's rank, it is unavoidable. When selected for court duty, it
By default, all court members are becomes the member's primary duty.
Military Juries officers. Typically they are commis- Thus, unless released from that duty
The military jury is referred to as the sioned officers, but in those military before trial, 100 percent of those
"court members." As discussed above, services that have warrant officers, selected for a military jury appear.
a summary court-martial does not warrant officers may serve as court Each side has only one peremptory
have any court members. At the members unless the accused is a com- challenge to exercise against the
accused's option, a special court-mar- missioned officer. However, if the panel.6' Generally, no reason for the
tial or a general court-martial can accused is enlisted, he may request peremptory challenge must be given
either have court members or consist enlisted members be detailed to the unless the opposing side raises a
of a military judge alone, the military court. If he makes such a request, Batson62 challenge, in which case the

-Judges' Journal • Summer 2006

 proponent of the challenge must pro-
vide a race- and gender-neutral basis
for the challenge. In the military,
Batson is triggered automatically
when the prosecutor challenges a
member of a minority accused's
racial group.63 There is no require-
ment for the defense, unlike in most
civilian courts, to make a prima facie
showing of discrimination.
Due to the limited number of
peremptory challenges, military
judges are required to grant chal-
lenges for cause liberally. The majori-
ty of the challenges for cause are for
bias, either actual or implied. The lat-
ter is reviewed on an objective stan-
dard through the eyes of the public:
Would a reasonable member of the
public, knowing the relevant facts
concerning a potential court member,
have substantial doubt as to the legal-
ity, fairness, and impartiality of the
court-martial if that court member
was allowed to sit?' The other major
challenge for cause is for having an
inelastic opinion concerning an
appropriate sentence.
Military court members have a
more active role than most civilian
juries. They are permitted to take
notes during the proceedings. Note,
however, that they may only use them
to refresh their own individual memo-
ries. They may not show or read them
to other members of the panel.
Court members may propose ques-
tions for witnesses. 65 Their questions
are submitted to the military judge in
writing and are then shown to the
counsel from each side. Counsel have
an opportunity to object on the same
basis as any other questions. The mil-
itary judge may reword the question,
if necessary, to put it in a nonobjec-
tionable form. If the military judge
permits the question, the military
judge asks the member's question of
the witness.
Court members may ask the mili-
tary judge to call a witness that nei-
ther side has produced.66 They may
ask for a particular person whose
name has been mentioned by other
witnesses or they may ask for a wit-
ness to testify about a particular sub-
ject matter. Ultimately, after consider-
ing the positions of both the prosecu-
tion and the defense, the military
judge will either call the witness or
explain to the court members that the
witness is unavailable or why the wit-
ness cannot otherwise be called.
Deliberations must include a full
and free discussion of the merits of
the case. Although the senior ranking
member serves as the court's presi-
dent, the role is strictly administra-
tive, being responsible for counting
the votes and announcing the court's
Court members may ask the
military judge to call a witness
neither side has produced.
findings and sentence. Superiority in
rank may not be used by any member
to inhibit the ability of any other
member to express his opinion. In the
deliberation room, every court mem-
ber has the same vote and right to
express an opinion. Following the
discussions, the findings (and in a
later stage, sentence, if there are any
findings of guilty) are determined by
secret written ballot. All members
must vote. 67
One of the more controversial
aspects of the court-martial process is
the number of votes required for a
finding of guilty. With the exception
of capital cases,68 a finding of guilty
requires only a two-thirds vote in
favor. However, the members only
vote once on a given specification.69
When they vote, if two-thirds or more
of the members vote for guilty, then
the court has returned a guilty find-
ing. If less than two-thirds vote for
guilty, then the court has returned a
not guilty finding, even if a majority
have voted in favor of guilty. They do
not continue to vote until a full two-
thirds vote in one direction or another
is attained. As a result, it is almost
impossible to have a hung jury in a
court-martial.
A typical example will illustrate.
In a general court-martial with eight
members on the panel, six votes in
favor of guilty would be required for
a conviction. If, during their single
vote, five vote in favor of guilty and
three vote in favor of not guilty, their
ballot has resulted in a not guilty ver-
dict. The prosecution does not have
an opportunity to retry the accused,
as would be the case for a civilian
hung jury. In my opinion, based on
my experience as a military defense
counsel and military judge, the court-
martial voting procedure tends to
work to the advantage of the accused,
resulting in more acquittals than
would otherwise be the case.
Post-trial and Appellate Rights
Upon a finding of guilty and the
imposition of a sentence, the record
of trial is returned to the convening
authority for action. If a pretrial
agreement exists, the convening
authority may not approve a sentence
any greater than that in the pretrial
agreement. Otherwise, the action to
be taken on the findings and sentence
is within the sole discretion of the
convening authority.7' The convening
'-Judges' Journal • Summer 2006
 authority may approve the court's
findings and sentence as adjudged or
he may change any finding of guilty
to a finding of not guilty or of guilty
to a lesser offense, and/or approve a
lesser sentence.
Cases in which the approved sen-
tence includes death, confinement for
a year or more, a bad conduct dis-
charge, a dishonorable discharge, or
(for officers) a dismissal are automati-
cally reviewed by a court of criminal
appeals (CCA).71 Each of the CCA
courts consists of panels of appellate
military judges from their respective
services. The CCA courts review mat-
ters both of law and fact, conducting
de novo reviews of the trial proceed-
ings, involving "a fresh, impartial
look at the evidence, giving no defer-
ence to the decision of the trial court
on factual sufficiency beyond the
admonition in Article 66(c), UCMJ, to
take into account the fact that the trial
court saw and heard the witnesses" 72
The U.S. Court of Appeals for the
Armed Forces (CAAF) consists of
five appellate judges appointed by the
president of the United States "from
civilian life" for a term of fifteen
years. None of the CAAF judges may
have served on active duty in the
armed forces for twenty or more
years.73 The CAAF reviews all cases
reviewed by a CCA court in which the
CCA approves a sentence to death, a
service judge advocate general sends
the case for review by the CAAF, or
the CAAF grants an accused's petition
for review. Unlike the CCA courts,
the CAAF's review is limited to mat-
ters of law.74
Decisions by the CAAF are subject
to review by the Supreme Court by
writ of certiorari.75
Conclusion
The military justice system is a
mature criminal justice system with
worldwide application. Its laws and
procedures closely parallel the U.S.
civilian criminal court systems. In
'-Judges'Journal • Summer 2006
many respects, it is more comprehen- orable conditions. If the discharge action seeks
sive than most civilian criminal sys- the later characterization, the respondent is enti-
tled to a discharge board regardless of the other
tems because it includes all manner of factors. See, e.g., AFI 36-3208, 6.2.2.3.
disciplinary tools available to military 24. If the respondent is a noncommissioned
commanders. Recognizing the signifi- officer, warrant officer, or a commissioned offi-
cant authority of military command- cer, he is entitled to a discharge board regard-
ers, however, the military justice sys- less of the other factors. See, e.g., AFI 36-3208,
6.2.2.1 (noncommissioned officers).
tem contains many safeguards and 25. If the respondent has six years or more
enhanced rights for military accuseds total active and inactive military service at the
that would either be unnecessary or time the discharge processing starts, he is enti-
too expensive to implement for the tled to a discharge board regardless of the other
civilian population. 0 factors. See, e.g., AFI 36-3208, 6.2.2.2.
26. Under the UCMJ and the Manual for
Courts-Martial, the servicemember does not
Endnotes have a right to have a defense attorney act as
1. The Uniform Code of Military Justice
the spokesperson. However, by regulation the
Air Force, for instance, has guaranteed its
applies to all military services: the U.S. Army,
members the assistance of a judge advocate in
U.S. Navy, U.S. Marine Corps, U.S. Air Force,
preparing for and presenting their responses to
and U.S. Coast Guard.
Article 15 actions.
2. 10 U.S.C. §§ 801-946.
27. Under some circumstances, the personal
3. UNIF. CODE OF MILTARY JUST. art. 118.
4. Id. art. 120.
appearance could be before a person other than
the commander imposing the punishment, who
5. Id. art. 121.
would summarize it and forward it to the com-
6. Id. art. 128.
mander for decision. In addition, the service-
7. Id. art. 85.
member's request to have the proceedings open
8. Id. arts. 88, 89, and 91.
9. Id. arts. 90 and 92.
to the public could be denied, if there exists
10. Id. art. 99.
good cause, such as security interests.
28. Commanders are advised, however,
11. Miranda v. Arizona, 384 U.S. 436
before initiating nonjudicial punishment pro-
(1966).
ceedings, to bear in mind that the servicemem-
12. Article 31 was originally codified at 50
ber has the right (in most instances) to demand
U.S.C. § 581 (1950).
13. All military services have both male and
trial by court-martial, where the standard of
proof would be beyond a reasonable doubt.
female members. All servicemembers, both
Commanders generally will not initiate nonju-
male and female, enjoy the same rights and
dicial punishment proceedings if they do not
privileges in the military justice system. Solely
believe that the available evidence would not
for ease of readability, I have chosen to use the
male pronoun throughout this article.
withstand scrutiny at a court-martial.
14. MANUAL FOR COURTS-MARTIAL, UNITED
29. R.C.M. 1301(d).
30. U.S. DEP'T OF AIR FORCE, INSTR. 51-201,
STATES, R.C.M. 506(a) (2005). For readers
ADMIN. OF MILITARY JUST. (Nov. 26, 2003)1
unfamiliar with military court citation forms,
5.2.2.5.
R.C.M. stands for the Rules for Courts-Martial.
31. R.C.M. 1301(e).
15. R.C.M. 506(b).
16. Id. 506(b)(3).
32. Id. 1303.
33. Id. 201(f)(2)(B).
17. Id. 506(a).
34. The vast majority of offenses do not
18. United States v. Garries, 22 M.J. 288,
authorize confinement for life or the death
291 (C.M.A. 1986).
penalty. For officers, the only punitive dis-
19. UNIF. CODE OF MILITARY JUST. art. 46.
charge available is a dismissal, which is the
20. United States v. Gunkle, 55 M.J. 26,
equivalent of a dishonorable discharge.
31-32 (C.A.A.F. 2001).
35. The UCMJ allows for special courts-mar-
21. R.C.M. 1202(b)(2).
tial without a military judge. See UNIF. CODE OF
22. For example, if the basis for the dis-
MILITARY JUST. art. 26(a). However, service reg-
charge is homosexual conduct, the respondent
ulations place significant restrictions on the
is entitled to a discharge board regardless of the
practice. I am not aware of any instances in
other factors. See, e.g., U.S. DEP'T OF AIR
recent memory in which a military judge was not
FORCE, INsTR. 36-3208, ADMIN. OF MILITARY
detailed to preside over a special court-martial.
JUST. (July 9, 2004) 6.2.2.4 [hereinafter AFI
36. The senior field grades are 0-5 (lieu-
36-32081.
23. An administrative discharge can be char-
tenant colonel in the Army, Marine Corps, and
acterized as either honorable; general, under
honorable conditions; or under other than hon- continued on page 46
 49. R.C.M. 705(b)(2).
Intro to U.S. Military 50. MitrARY. R. EvID. 101.
51. Id. 1102(a).
Justice System 52. R.C.M. 920(e)(5).
continued from page 13 53. Id. 1001(a)(1).
54. Id. 1001(c)(3).
55. Id. 501(a)(2).
56. Id. 501(a)(1)(A).
Air Force, and commander in the Navy and 57. Id. 501(a)(1)(B). The rule indicates that
Coast Guard) and 0-6 (colonel in the Army, less than twelve members, but in no case less
Marine Corps, and Air Force, and captain in than five, could be used in a capital case if the
the Navy and Coast Guard). A limited number convening authority determines, based on
of particularly experienced O-4s (majors or "physical conditions or military exigencies"
lieutenant commanders) have been selected to that twelve members are not reasonably avail-
serve as military judges. able. However, it is highly unlikely that this
37. R.C.M. 307(b). exception would ever be employed, given the
38. Id. 403. rarity of capital court-martials and the signifi-
39. Id. 404. cant amount of resources made available when
40. UNw. CODE OF MnIARY JUST. art. 32(a). they are referred to trial.
41. Id. art. 32(b). 58. Id. 912(f)(1)(K).
42. Id. 59. Id. 503(a)(2).
43. R.C.M. 405(d)(1). 60. UNIF. CODE OF MILITARY JUST. art.
44. Id. 405(h)(3). 25(d)(2).
45. Id. 405(i). 61. R.C.M 912(g)(1). If additional panel
46. Id. 4050). members are detailed after voir dire begins-
47. Id. 407. typically because the panel falls below the min-
48. United States v. Care, 18 C.M.A. 535, 40 imum number required due to the exercise of
C.M.R. 247 (1969). challenges-each side may be provided one
additional peremptory challenge to be executed
against the newly detailed members only.
62. Batson v. Kentucky, 476 U.S. 79 (1986).
63. United States v. Moore, 28 M.J. 366
(C.M.A. 1989).
64. United States v. Minyard, 46 M.J. 229,
231 (C.A.A.F. 1997).
65. MLITARY. R. Evil. 614(b).
66. Id. 614(a).
67. R.C.M. 921.
68. Capital cases require a unanimous find-
ing of guilty for the death penalty to be author-
ized. A two-thirds vote for guilty would still
result in a guilty finding, but the death penalty
would no longer be an authorized punishment.
The one exception is for Article 106 (spying),
which carries a mandatory death penalty. A less
than unanimous vote for guilty results in a not
guilty finding for spying. R.C.M. 921(c)(2)(A).
69. There are provisions for reconsidering a
finding before it has been announced in open
court, but the court members must ask the mili-
tary judge for supplemental instructions on how
to conduct a reconsideration. It is rarely done.
A finding of not guilty may be reconsidered if
a majority of the members vote for reconsidera-
tion. A finding of guilty may be reconsidered if
more than one-third of the members vote for
reconsideration. R.C.M. 924.
70. R.C.M. 1107(b)(1).
71. UNIF. CODE OF MILITARY JUST. art. 66.
The courts consist of the Army Court of
Criminal Appeals, the Navy-Marine Corps
Court of Criminal Appeals, the Air Force Court
of Criminal Appeals, and the Coast Guard
Court of Criminal Appeals.
72. United States v. Washington, 57 M.J.
394, 399 (C.A.A.F. 2002).
73. UNiw. CODE OF MiTARY JUST. art. 142.
74. Id. art. 67(c).
75. Id. art. 67a.

Sav th Dat
u6CI[IurtHl[~~1suvI,
LL
ABA Judicial Division
Traffic Court Seminar
October 10-13, 2006
Charleston, South Carolina

For more information, see

www.abanet.orgljd/pdf/
traffic_court seminar.pdf

-judges'Journal -Summer 2006