Matters of military criminal justice are governed by federal law. The Uniform Code of Military Justice can be thought of as the "criminal statute" for the United States Armed Forces (Army, Navy, Marine Corps, Air Force and Coast Guard). With some exceptions, criminal offenses committed by active duty service members are prosecuted before the Courts-Martial of the United States. On the other hand, it is not unusual for an active duty service member accused of committing a crime in a civilian jurisdiction, to be prosecuted for that crime before local (state) courts.
The UCMJ lists criminal offenses while also making criminal certain conduct which would not necessarily be criminal in the civilian community. For example, under Article 86 of the UCMJ, an active duty service member can be prosecuted for absence without leave (AWOL) also known as unauthorized absence. Under Article 85, a member of the armed forces can be prosecuted for desertion. In the civilian community, if an individual simply leaves or walks away from his job, he is not subject to criminal prosecution. Because of the unique nature of the armed forces, absence and desertion are treated as criminal offenses. Likewise, "disrespect toward a superior commissioned officer" and "insubordinate conduct toward a warrant officer, non-commissioned officer or petty officer" are also treated as military criminal offenses under Article 89 and Article 91 of the Uniform Code of Military Justice.
Relatively minor offenses are typically disposed of pursuant to Article 15 of the UCMJ, that being non-judicial punishment. This is a procedure wherein the accused service member is called before his or her commanding officer for an informal hearing regarding pending charges. Non-judicial punishment is not a trial. The "accused" is not entitled to legal counsel, nor is he entitled to a trial by jury. It is important to note that, "except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces (under Article 15) if the member has, before the imposition of such punishment, demanded trial by Court-Martial in lieu of such punishment." In other words, if charged with an offense under the UCMJ, a service member may be demand that the offense be tried by Court-Martial. If such a demand is made, the member's commanding officer will not have the opportunity to dispose of pending charges via Article 15 punishment. Of course, a demand for Court-Martial should not be considered lightly, as Court-Martial punishments are much more severe than potential punishments under Article 15. Lastly, it must be remembered that service members "attached to or embarked in a vessel" may not demand trial by Court-Martial in lieu of Article 15 punishment. Generally, sailors and/or marines attached to underway commands may not demand Court-Martial. It should also be kept in mind that service members attached to ships in port or undergoing repair are considered to be "attached to a vessel" and as such, may not demand trial by Court-Martial for charged offenses.
Typically, more serious offenses are referred to Court-Martial. A Summary Court-Martial consists of one commissioned officer. Potential maximum punishment includes thirty (30) days confinement. No service member "may be brought to trial before a summary Court-Martial if he objects thereto" (see Article 20, UCMJ).
Special and General Courts-Martial resemble civilian criminal trials. Typically, the most serious offenses are tried before General Courts-Martial. These offenses would include, but would not be limited to, murder, manslaughter, rape, sodomy and other serious felony offenses. It is not unusual for absence offenses such as desertion to be prosecuted before General Courts-Martial.
Typically, less serious criminal offenses are tried before Special Courts-Martial. The potential maximum punishment before a Special Court-Martial is less severe than potential punishments at General Courts-Martial. While the description is imperfect, General Courts-Martial are similar to civilian criminal felony trials while Special Courts-Martial are similar to civilian criminal misdemeanor trials. A military judge will be assigned to each and every General or Special Court-Martial. The prosecuting attorney known as the "Trial Counsel" is typically an active-duty military lawyer. Military defense counsel are assigned to members appearing before General or Special Courts-Martial. The defendant is known as the "accused" at Court-Martial. The accused elects to proceed either before a jury (known as "Members" in military law) or before a judge sitting alone (the equivalent of a civilian bench trial). If the accused proceeds before "Members" and is found guilty of the charged offense, the Members will impose sentence. Generally, this procedure differs from typical civilian practice wherein the judge more often than not imposes sentence after a jury verdict of guilty.
An additional difference between military and civilian criminal practice is the size and composition of the jury. In military courts, a Special Court-Martial will consist of three or more (jury) members while a General Court-Martial will be comprised of five or more members. Military juries vote only once as to a verdict. A two-thirds majority of jury members voting guilty will result in a verdict of guilty. In other words, a military accused will be convicted of an offense via a two-thirds vote of the jury. In civilian practice, jury guilty verdicts must be unanimous. Further, a typical civilian criminal jury is made up of twelve individuals drawn from the community. Military Court-Martial Members are typically commissioned officers. At the election of the accused, a military jury will include a number of enlisted personnel.
The Military Rules of Evidence apply to trial by Court-Martial. These rules are similar to the Federal Rules of Evidence. Before proceeding to a Court-Martial, an accused is entitled to a hearing pursuant to Article 32 of the UCMJ. Unlike civilian criminal practice, the accused and his attorney are present for the Article 32 hearing and are given the opportunity to examine and/or cross examine potential witnesses. This provides the defense with a most important means of pretrial discovery.
Members found guilty at Court-Martial have the opportunity to appeal their cases first on a local basis and later via Military Courts of Appeal.
DISCLAIMER: The information contained on this website is for informational purposes only. Individuals with questions or problems in any area of the law should consult a qualified attorney licensed to practice in the individual's jurisdiction.