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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.” From this military courts were established.

Why Do We Need Military Courts?

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

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:

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 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:

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 a summary court martial?

In a summary court-martial, a single commissioned officer serves as judge and jury. Summary courts-martial are used for enlisted personnel only. Only less serious offenses are tried. The accused is permitted to cross-examine witnesses and present evidence, but they are not represented by a free military attorney. The accused is free to hire a private attorney.

The maximum sentences imposed under summary court-martial are one month in confinement, hard labor for no more than 45 days, restrictions on movements beyond the base for not more than 2 months, and forfeiture of not more than two-thirds of one month’s pay. The accused has the right to reject a summary court-martial and request a general or special court-martial instead. 

What is a special court martial?

In a special court-martial, the accused is tried by a military judge and at least three members of the armed services. The service members who serve on a special court-martial are chosen by their age, education, length in service, and other like criteria. In some situations, the service members alone may try the case. The accused has the option of requesting trial by judge alone. They may also request that one third of the jury panel be enlisted personnel. A military attorney is appointed to represent the accused. Special Courts-Martial have jurisdiction over most types of military offenses.

They may impose a variety of sentences, including:

What is a general court martial?

The general courts-martial are used for serious crimes like felonies. This is the highest level of military trial court. There is a military judge and a panel of not less than five members of the service. The maximum penalty that can be imposed depends on the nature of the crime. A general court-martial can order any punishment that is not prohibited by the UCMJ, even the death penalty in capital cases. A military lawyer will be appointed for the accused.

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. 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 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 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.

Resources

https://law.jrank.org/pages/8564/Military-Law-Military-Criminal-Justice-System.html 

https://www.fjc.gov/history/courts/military-courts 

https://vwac.defense.gov/military.aspx 

https://www.lawfareblog.com/are-military-courts-really-just-civilian-criminal-courts