About Military Courts

How to Navigate Military Courts and How are Consequences Determined

Article I, Section 8 of the United States Constitution gave Congress the power to “make rules for the Government and Regulation of the land and naval Forces.” This power allows for military courts to be established.

Why Do We Need Military Courts?

The purpose behind a separate military court system is to ensure:

  • Streamlined procedures were essential to promote military discipline and order; and
  • Some criminal offenses are unique to the military.

Desertion, insubordination, being absent without leave —these offenses have no application in the civilian world.


What are the levels of military court?

There are three tiers of military courts:

  • court-martial,
  • Court of Criminal Appeals, and
  • the United States Court of Appeals for the Armed Services
Each military service has its own court of criminal appeals. Both the accused and the government have the right to file a Writ of Certiorari, or a request to review the case, to the U.S. Supreme Court from a decision by the Court of Appeals for the Armed Services. However, it is very rare for the Supreme Court to accept review.

What is the Uniform Code of Military Justice?

The military uses the Uniform Code of Military Justice and applies it to each tier of military court. The UCMJ describes and defines the military justice system and how it works. The UCMJ deals with criminal offenses and violations of the Code of Military Conduct. It lists out the offenses covered; these rules are called the Manual for Courts-Martial. They set out the court procedures and list the maximum punishment for each offense.

What Kinds of Legal Issues Does the UCMJ Cover?

The Uniform Code of Military Justice deals with criminal charges and violations. Civil and family law matters are not handled in military courts. The cases litigated are the 3 types of courts-martial. The Federal Rules of Evidence apply in military court.

Do only Military Lawyers Practice in Military Courts?

Cases are heard by judges or panels, depending on the type of procedure and level of offense. Each military service has a Judge Advocate General Corps (JAG) staffed by military officers who are also lawyers. JAG officers act as prosecutors, and in cases with serious offenses, JAG officers are appointed as defense counsel. In some cases, an accused can hire civilian counsel to represent them. The details of the judges and lawyers in each type of proceeding will be discussed in the next section.

What is the role of the commanding officer in a military court case?

The role of the commanding officer in military justice is unique; in all but the most serious cases, they decide if someone will be prosecuted. Commanders usually turn such crimes over to a criminal investigative agency like the Army’s CID or the Navy’s NCIS. Rape and sexual assault cases automatically are handled by the criminal investigative agency of that military branch.

Less serious offenses are handled by the commander of the base or military installation.

The commander has multiple options:
They may decide the accused is innocent and take no action
They may take administrative action (examples: mandatory counseling, a formal reprimand, involuntary separation from the military);
They may choose a non-judicial punishment (NJP), where the commander holds the hearing and rules of evidence do not apply. The accused may speak or call witnesses. If the commander rules against they, the accused may appeal to a more senior commander.
They may send the case to courts-martial, where one of the three types of courts-martial (summary, special, or general) would be chosen. However, only very senior commanders can send a case for a general court-martial.
What is a non-judicial punishment?

Non-Judicial Punishment (NJP) is used for less serious criminal offenses and breaches of military regulations. The Navy refers to NJP as a “captain’s mast.” The Army and Air Force use the term “Article 15” for an NJP. The Marines call it “Office hours.” There is no judicial hearing with an NJP. The commander hears the evidence and decides the punishment.

What is the Appeals Process?

Convictions are appealed to the Courts of Criminal Appeals. There are four Courts of Criminal Appeals (CCA), one for each of the four military service branches. Appeals to the CCA from a conviction are mandatory when the sentence is death, dishonorable discharge, dismissal of an officer, or imprisonment for more than one year.
Looking closely at document
The next level of appeal is to the U.S. Court of Appeals for the Armed Forces. It is exclusively a criminal appeals court. The court is comprised of 3 civilian judges who are appointed by the President to serve 15-year terms. The Court reviews only questions of law. It does not evaluate the evidence on questions of fact.
The appeals courts generally have a three-judge panel that reviews and rules on cases. Judges serve at the pleasure of the Judge Advocate General and do not have fixed terms.
The final possible level of appeal is the U.S. Supreme Court by a petition for certiorari. Few military cases are accepted. Those that are accepted impact the rules of the military justice system. For example: in Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supreme Court held that the USCAAF did not have the authority to issue an injunction preventing the Air Force from dropping a convicted officer from its ranks.

This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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