Military Law

What's a Court Martial?

Many of us a vague idea of what a court martial is. We've seen them in television drama and even major motion pictures. But there's a lot more to them than what we see on TV or at the movies.

What They Are and Where They Came From

Article I, section 8 of the US Constitution gives the US Congress many powers over the US military. Under this power, Congress wrote the Uniform Code of Military Justice (UCMJ). It contains the US military criminal laws.

The UCMJ is put into action through the Manual for Courts-Martial (MCM). It covers practically everything in US military law. In the UCMJ and MCM, a military criminal trial court is called a "court-martial."

Who and What's Covered

The UCMJ covers members of the US armed forces across the globe. People who may be court-martialed include active military personnel, as well as certain other people, such as:

  • Students or "cadets" in the US military academies
  • Paid military retirees
  • Military retirees hospitalized in military facilities
  • Military personnel serving criminal sentences after being court-martialed
  • Enemy prisoners of war in custody of the US military

Military crimes or "offenses" are listed in the UCMJ. Some of them are a lot like civilian (non-military) criminal laws, such as murder and rape. Others are strictly military crimes, like insubordinate conduct (disobeying orders).

Courts-Martial Types

Unlike civilian courts, courts-martial aren't always "in session." Rather, they're created or "convened" each time a crime is committed. Generally, the accused's commanding officer investigates the matter. If there's enough evidence of the crime, she convenes a court-martial.

There are three courts-martial types:

Summary Court-Martial

This is for minor offenses. It's made up of one commissioned officer, and the accused typically isn't given a military attorney. He may, however, hire a civilian attorney at his own expense. If convicted, his sentence or punishment may include 30 days' imprisonment, loss of 30 days' pay, or restrictions on where and when he may travel.

The accused must agree to being tried by a summary court-martial. If he doesn't, the matter usually is turned over to a special or general court-martial.

Special Court-Martial

This court-martial prosecutes crimes similar to civilian misdemeanors, such as petty theft. It's made up of military judge, three service members, or both. The accused has the right to an appointed military attorney, she may choose her own military attorney, or she may hire a civilian attorney at her own expense.

The maximum punishment allowed is imprisonment for one year, hard labor for three months with no imprisonment, forfeiture of two-thirds' pay per month for up to one year, a reduction in pay grade, or a bad-conduct discharge.

General Court-Martial

This is the highest military criminal court. It's typically used only for the most serious offenses, akin to civilian felonies, like rape and murder. It's also for serious military offenses, like mutiny. It's made up of a military judge alone, or five service members and a military judge. The accused has the right to an appointed military attorney, she may choose her own military attorney, or she may hire a civilian attorney at her own expense.

Like in civilian criminal courts, service members charged with crimes have certain basic due process rights. These include the right to face and question her accusers, the right to fair and speedy trial, and the right to testify (or not) on her own behalf.

Civilian Courts

Just because you're in the military doesn't necessarily mean you can't face charges in state or federal court, too. For example, a soldier who gets arrested for DUI/DWI off the military base may be court-martialed.

Similarly, even if a crime happened on a military base doesn't mean federal officials can't take over the case in civilian court. For instance, after US Army Major Hasan shot and killed 13 people on a military base, he could've been charged in civilian court for an act of terrorism under the federal Antiterrorism and Effective Death Penalty Act of 1996. Instead, he's being tried by general court-martial.

Military Tribunal?

Don't confuse courts-martial with military tribunals or "commissions." Military tribunals are for members of enemy military forces at war with the US. Some of the key differences between courts-martial and tribunals include:

  • The rules of evidence in tribunals are more relaxed than in courts-martial. It's much easier to use evidence against you in tribunals
  • The accused in a tribunal has less access to evidence against her than in courts-martial
  • Unlike with courts-martial, a person convicted by a tribunal generally has no appeal rights 
  • In general courts-martial, unless the case is heard by a military judge alone, a conviction requires a vote of three-fourths of the members hearing the case. In military tribunals, however, only a two-thirds vote is needed

Special rules for 9/11 tribunals. Public debate over the harshness of military tribunals suggested for suspected 9/11 and other terrorists at Guantanamo Bay, Cuba led to enhanced rules for those tribunals. These include:

  • The unanimous vote of the judges hearing a case is required for the death penalty
  • Anyone convicted by a tribunal may appeal to a panel of military officers appointed by the US Secretary of Defense 
  • Guilt has to be proven "beyond a reasonable doubt" just like in civilian criminal trials

Questions for Your Attorney

  • Is it ever a good idea to refuse a summary court-martial?
  • If my pay is reduced and I can't afford to make child-support payments, can I be taken to court by my ex-wife in civilian court?
  • Will a court-martial conviction show up on a criminal background check after I leave the service?
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