Military Criminal Justice System & Legal Rights of Service Members
Members of the U.S. military are subject to a specific set of laws known as the Uniform Code of Military Justice. The UCMJ outlines the definitions and penalties for crimes, as well as procedural rights. It covers the same types of crimes that civilian criminal laws cover, in addition to certain crimes that arise only in the military context. The Manual for Courts-Martial complements the UCMJ by providing the system through which its rules are enforced.
Service members who are accused of a crime have certain rights that echo the rights of civilian suspects. They have a right to a fair trial, a right to a free military defense attorney in special and general courts-martial, and a right to remain silent when their attorney is not present. Authorities cannot conduct searches and seizures without probable cause in most situations, which parallels the Fourth Amendment rights of civilians.
Article 15 provides the most common means for addressing violations of the UCMJ. This tends to be a better outcome for a service member because it results in non-judicial penalties that do not lead to a criminal record and may not even appear on the service member’s military record. Penalties cannot be imposed in the Army and the Air Force without a finding of guilt beyond a reasonable doubt, while penalties can be imposed in the Navy and the Marines with a finding of guilt by clear and convincing evidence. (This difference may not have a real impact, since military commanders may not be familiar with the meaning of these subjective standards.)
You have a right to refuse the informal proceeding under Article 15 and ask for a formal court-martial instead. While this may give you a fuller opportunity to argue for your innocence or for reduced penalties, it may result in more severe penalties and a criminal record if you are found guilty. You can discuss this choice with a military defense attorney.
You can submit evidence supporting your innocence to your commander during an Article 15 procedure. If you are found guilty, you can argue for lenient penalties by presenting testimony from character witnesses. You also can appeal the finding to the next highest level of command and then to the Board of Correction for Military Records.
The vast majority of courts-martial (about 90 percent) result in convictions, but a service member often can seek reduced penalties during the extenuation and mitigation phase of the proceedings. Courts-martial are the military equivalent of criminal trials in civilian courts. Proceedings for Article 15 violations are known as summary courts-martial. Special courts-martial cover offenses similar to misdemeanors under civilian laws, while general courts-martial cover the military equivalent of felonies. A conviction at a special court-martial can result in up to one year in a military prison, a full reduction in grade, or a bad conduct (not dishonorable) discharge from the armed forces. A conviction at a general court-martial can result in a dishonorable discharge, as well as a longer term of imprisonment (up to life) or even the death penalty in extreme cases. Whereas a judge issues the sentence in a civilian criminal court, jurors will issue the sentence at a court-martial.
The person who appointed the judge and the jury for the court-martial, known as the convening authority, will automatically review the outcome of a special or general court-martial. They can receive advice from a military lawyer, known as a Judge Advocate. The convening authority cannot increase the penalties, but they can reduce the penalties or reverse the guilty finding and dismiss the case. Moreover, the Court of Criminal Appeals for the relevant branch of the service automatically reviews any case that results in a negative discharge or at least one year of confinement. A service member can appeal a decision by the Court of Criminal Appeals to the U.S. Court of Appeal for the Armed Forces, but this court generally has discretion to choose which cases to review. Military service members who receive lesser penalties can seek discretionary review by a military court of appeal or submit an appeal to the Judge Advocate General.
Redress of Grievances
If you have been subjected to harassment or other forms of misconduct by your commander, you can file a complaint against them under Article 138 of the UCMJ. You should try to resolve the issue informally before taking this step. An Article 138 complaint must clearly outline the details of the allegations. It will be submitted to the officer who has the authority to conduct a general court-martial of your commander.
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