Military Justice: Courts-Martial, an Overview
Released: 2013-08-12T00:00:00

Introduction

Recent high-profile military-related cases involving sexual assaults by U.S. servicemembers have resulted in increased public and congressional interest in military discipline and the military justice system. Questions have been raised regarding how allegations of sexual assault are addressed by the chain of command, the authority and process to convene a court-martial, and the ability of the convening authority to provide clemency to a servicemember convicted of an offense. Additionally, some military-related cases, including those of Major Nidal Hasan, the alleged shooter at Fort Hood, and Private first class Bradley Manning, the alleged source of leaked classified material through the organization WikiLeaks, have raised questions regarding the mental capacity of the accused and how the military justice system addresses this concern.

The U.S. Constitution imposes on the government a system of restraints to provide that no unfair law is enforced and that no law is enforced unfairly. What is fundamentally fair in a given situation depends in part on the objectives of a given system of law weighed alongside the possible infringement of individual liberties that the system might impose. In the criminal law system, some basic objectives are to discover the truth, punish the guilty proportionately with their crimes, acquit the innocent without unnecessary delay or expense, and prevent and deter further crime, thereby providing for the public order. Military justice shares these objectives in part, but also serves to enhance discipline throughout the Armed Forces, serving the overall objective of providing an effective national defense.

The Fifth Amendment to the Constitution provides that "no person shall be ... deprived of life, liberty, or property, without due process of law." Due process includes the opportunity to be heard whenever the government places any of these fundamental liberties at stake. The Constitution contains other explicit rights applicable to various stages of a criminal prosecution. Criminal proceedings provide both the opportunity to contest guilt and to challenge the government's conduct that may have violated the rights of the accused. The system of procedural rules used to conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional rights that take place outside the courtroom.

Military Courts-Martial

The Constitution, in order to provide for the common defense, gives Congress the power to raise, support, and regulate the Armed Forces, but makes the President Commander-in-Chief of the Armed Forces. Article III, which governs the federal judiciary, does not give it any explicit role in the military, and the Supreme Court has taken the view that Congress's power "To make Rules for the Government and Regulation of the land and naval Forces" is entirely separate from Article III. Therefore, courts-martial are not considered to be Article III courts and are not subject to all of the rules that apply in federal courts.

Members of the Armed Forces are subjected to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. As such, it might be said that discipline is as important as liberty interests in the military justice system. The Constitution specifically exempts military members accused of a crime from the Fifth Amendment right to a grand jury indictment, from which the Supreme Court has inferred there is no right to a civil jury in courts-martial. However, in part because of the different standards provided in courts-martial, their jurisdiction is limited to those persons and offenses the military has a legitimate interest in regulating. Courts-martial jurisdiction extends mainly to servicemembers on active duty, prisoners of war, and persons accompanying the Armed Forces in time of declared war, as well as certain violators of the law of war.

Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support armies; provide and maintain a navy; and provide for organizing and disciplining them. Under this authority, Congress has enacted the Uniform Code of Military Justice (UCMJ), which is the code of military criminal laws applicable to all U.S. military members worldwide. The President implemented the UCMJ through the Manual for Courts-Martial (MCM), which was initially prescribed by Executive Order 12473 (April 13, 1984). The MCM contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the UCMJ. The MCM covers almost all aspects of military law. Military courts are not considered Article III courts but instead are established pursuant to Article I of the Constitution, and as a result are of limited jurisdiction.

Jurisdiction

The UCMJ gives courts-martial jurisdiction over servicemembers as well as several other categories of individuals, including retired members of a regular component of the Armed Forces entitled to pay; retired members of a reserve component who are hospitalized in a military hospital; persons in custody of the military serving a sentence imposed by a court-martial; members of the National Oceanic and Atmospheric Administration and Public Health Service and other organizations, when assigned to serve with the military; enemy prisoners of war in custody of the military; and persons with or accompanying the military in the field during "times of war," limited to declared wars. Jurisdiction of a court-martial does not depend on where the offense was committed; it depends solely on the status of the accused.

Types of Offenses

Courts-martial try "military offenses," which are listed in the punitive articles of the UCMJ and are codified in 10 U.S.C. 877 et seq. Some "military offenses" have a civilian analog, but some are exclusive to the military. The President is authorized to prescribe the punishments which a court-martial may impose within the limits established by Congress. In addition, a servicemember may be tried at a court-martial for offenses not specifically covered through the use of the General Article—UCMJ Article 134, which states that all "crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court martial, according to the nature and degree of the offense." The Armed Forces have used Article 134 to assimilate state and federal offenses for which there is no analogous crime in the UCMJ in order to impose court-martial jurisdiction. The potential punishments for violations generally match those applicable to the corresponding civilian offense.

Investigation

When a servicemember has reportedly committed an offense, the accused's immediate commander will conduct an inquiry. This inquiry may range from an examination of the charges and an investigative report or summary of expected evidence to a more extensive investigation, depending on the offense(s) alleged and the complexity of the case. The investigation may be conducted by members of the command or, in more complex cases, military and civilian law enforcement officials. Once evidence has been gathered and the inquiry is complete, the commander can choose to dispose of the charges by (1) taking no action, (2) initiating administrative action, (3) imposing non-judicial punishment, (4) preferring charges, or (5) forwarding to a higher authority for preferral of charges. The first formal step in a court-martial, preferral of charges, consists of drafting a charge sheet containing the charges and specifications against the accused. The charge sheet must be signed by the accuser under oath before a commissioned officer authorized to administer oaths. Once charges have been preferred they may be referred to one of three types of courts-martial: summary, special, or general. The seriousness of the offenses alleged generally determines the type of court-martial. The court-martial must be convened by an officer with sufficient legal authority, that is, the "convening authority," who will generally be the commander of the unit to which the accused is assigned.

Many recent military justice cases have raised the question of the mental capacity of the accused. An individual may not be tried by court-martial if he is suffering from a mental disease or defect such that he is unable to understand the nature of the proceedings or is unable to conduct or cooperate intelligently in the defense. In the event the mental capacity or mental responsibility, or both, of the accused is questioned, an examination may be ordered by the convening authority and/or the military judge. The examination, often referred to as an RCM 706 board, must answer the following four questions: (1) at the time of the alleged criminal conduct, did the accused have a severe mental disease or defect; (2) what is the clinical psychiatric diagnosis; (3) was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature or wrongfulness of his conduct; and (4) is the accused presently suffering from a mental disease or defect to the point that he is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense?

The report of the RCM 706 board may lead to the case being suspended, charges being dismissed by the convening authority, administrative separation of the accused from military service, or the charges being tried by court-martial. Although an accused may be found competent to be tried by court-martial, that determination does not prohibit the accused from claiming the defense of lack of mental responsibility. In order to prevail on a defense of lack of mental responsibility, the accused must prove by clear and convincing evidence that at the time of the commission of the acts constituting the offense, as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or wrongfulness of his acts. Regardless of an initial competency determination, additional examinations may be ordered at any stage of the proceedings if the accused's mental capacity is questioned.

Types of Courts-Martial

The federal judiciary is established by Article III of the Constitution and consists of the Supreme Court and "inferior tribunals" established by Congress. It is a separate and co-equal branch of the federal government, independent of the executive and legislative branches, designed to be insulated from the public passions. Its function is not to make law but to interpret law and decide disputes arising under it. Federal criminal law and procedures are enacted by Congress and housed primarily in Title 18 of the U.S. Code . The Supreme Court promulgates procedural rules for criminal trials at the federal district courts, subject to Congress's approval. These rules, namely the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of Evidence (Fed. R. Evid.), incorporate procedural rights that the Constitution and various statutes demand.

Unlike with the federal courts, the Supreme Court does not promulgate procedural rules for military courts-martial. As discussed above, Congress regulates the Armed Forces largely through Title 10 of the U.S. Code . The military courts-martial system is specifically addressed in the Uniform Code of Military Justice (UCMJ), Chapter 47 of Title 10. Article 36 of the UCMJ authorizes the President to prescribe rules for "pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial." Such rules are to "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts" insofar as the President "considers practicable" but that "may not be contrary to or inconsistent" with the UCMJ. Pursuant to that delegation, the President created the Rules for Courts-Martial (RCM) and the Military Rules of Evidence (MRE).

Congress, in creating the military justice system, established three types of courts-martial: (1) summary court-martial, (2) special court-martial, and (3) general court-martial. While the promulgated RCM and the MRE are applicable to all courts-martial, the jurisdiction and authorized punishments vary among the different courts-martial types. The function of the summary court-martial is to "promptly adjudicate minor offenses under a simple procedure" and "thoroughly and impartially inquire into both sides of the matter" ensuring that the "interests of both the Government and the accused are safeguarded and that justice is done." However, special and general courts-martial function to adjudicate more serious offenses with more severe punishments and thus the procedures are more complex.

Although a discussion of the RCM and MRE is beyond the scope of this report, the procedures employed in courts-martial are intended to afford servicemembers basic constitutional rights. Appended as Table 1 is an excerpt from CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts , by [author name scrubbed], which compares selected constitutionally based trial procedures in federal courts and general courts-martial.

Summary Courts-Martial

The summary court-martial can adjudicate minor offenses allegedly committed by enlisted servicemembers. It can adjudge maximum punishments of 30 days' confinement; hard labor without confinement for 45 days; restriction to specified limits for 45 days; forfeiture of two-thirds' pay per month for one month; and reduction to the lowest pay grade. In the case of enlisted members above pay grade E-4, the summary court-martial may not adjudge confinement or hard labor without confinement and can only reduce them to the next lower pay grade. Summary courts-martial are composed of one commissioned officer who need not be a lawyer. The accused must consent to the proceedings and normally is not entitled to a lawyer. If an accused refuses to consent to a trial by summary court-martial, a trial may be ordered by special or general court-martial as may be appropriate, at the discretion of the convening authority.

Special Courts-Martial

The special court-martial can try any servicemember for any noncapital offense or, under presidential regulation, capital offenses. Special courts-martial generally try offenses that are considered misdemeanors. A special court-martial can be composed of a military judge alone, not less than three members, or a military judge and not less than three members. Contrary to civilian criminal trials, the agreement of only two-thirds of the members of a court-martial is needed to find the accused guilty. Otherwise, the accused is acquitted. There are no "hung juries" in courts-martial. Regardless of the offenses tried, the maximum punishment allowed at a special court-martial is confinement for one year; hard labor without confinement for up to three months; forfeiture of two-thirds' pay per month for up to one year; reduction in pay grade; and a bad-conduct discharge. The accused is entitled to an appointed military attorney, a military counsel of his or her selection, or he or she can hire a civilian counsel at no expense to the government.

General Courts-Martial

A general court-martial is the highest trial level in military law and is usually used for the most serious offenses. It is composed of a military judge sitting alone, or not less than five members and a military judge. It can adjudge, within the limits prescribed for each offense, a wide range of punishments to include confinement; reprimand; forfeitures of up to all pay and allowances; reduction to the lowest enlisted pay grade; punitive discharge (bad conduct discharge, dishonorable discharge, or dismissal); restriction; fines; and, for certain offenses, death. The accused is entitled to an appointed military attorney or a military counsel of his or her selection, or the accused can hire civilian counsel at no expense to the government.

Prior to convening a general court-martial, a pretrial investigation must be conducted. This investigation, known as an Article 32 hearing, is meant to ensure that there is a basis for prosecution. An investigating officer, who must be a commissioned officer, presides, and the accused has the same entitlements to counsel as in special courts-martial. However, unlike in a civilian grand jury investigation, where the accused has no access to the proceedings, the accused is afforded the opportunity to examine the evidence presented against him, cross-examine witnesses, and present his own arguments. If the investigation uncovers evidence that the accused has committed an offense not charged, the investigating officer can recommend that new charges be added. Likewise, if the investigating officer believes that evidence is insufficient to support a charge, he can recommend that it be dismissed. Once the Article 32 investigation is complete, the investigating officer makes recommendations to the convening authority (CA) via the CA's legal advisor. The legal advisor, in turn, provides the CA with a formal written recommendation, known as the Article 34, UCMJ advice, as to the disposition of the charges. The CA then determines whether to convene a court-martial or dismiss the charges.

Post-Trial Review

Convictions at a general or special court-martial that include a punitive (bad conduct or dishonorable) discharge are subject to an automatic post-trial review by the CA. The process starts with a review of the trial record by the staff judge advocate (SJA), who makes a recommendation to the CA as to what action to take. This review is recognized as the accused's best hope for relief, as the CA has broad powers to act on the case. Upon review of the record of trial and the SJA's recommendation, the CA may, among other remedies, suspend all or part of the sentence, disapprove a finding or conviction, or lower the sentence. The CA may not increase the sentence. Once the CA takes action on the case, the conviction is ripe for an appeal.

However, a recent Air Force case has attracted considerable congressional focus on the CA's ability to grant clemency. In the specific case, the CA dismissed the conviction of an Air Force officer who had been tried, convicted, and sentenced to prison at a court-martial for the sexual assault of a civilian. The authority of the CA to modify the findings and sentence of the court-martial is a matter of command prerogative involving the sole discretion of the convening authority. Additionally, action by the CA to disapprove, commute, or suspend a sentence, or to set aside a finding of guilty, is not appealable by the United States. As a matter of command prerogative, the decision by the CA is final upon issuance.

All court-martial convictions not reviewable by the service appellate courts are reviewed by a judge advocate to determine if the findings and sentence, as approved by the CA, are correct in law and fact. If those criteria are met, the conviction is final. If not, the judge advocate forwards the case to the officer exercising general court-martial convening authority at the time the court-martial was convened for corrective action. If the CA declines to take corrective action, the case is referred to the Judge Advocate General for review.

Appellate Review

Convictions by a special or general court-martial are subject to an automatic appeal to a service Court of Criminal Appeals if the sentence includes confinement for one year or more, a bad-conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer, cadet, or midshipman. Appeal is mandatory and cannot be waived when the sentence includes death. If the conviction is affirmed by the service court, the appellant may request review by the Court of Appeals for the Armed Forces (CAAF) and ultimately the U.S. Supreme Court. Review by these courts is discretionary.

Supreme Court review by writ of certiorari is limited to cases where the CAAF has conducted a review, whether mandatory or discretionary, or has granted a petition for extraordinary relief. The Court does not have jurisdiction to review a denial of discretionary review by the CAAF, nor does it have jurisdiction to consider denials of petitions for extraordinary relief. Servicemembers whose petitions for review or for extraordinary relief are denied by the CAAF may seek additional review only through collateral means, for example, petitioning for habeas corpus to an Article III court, which could provide an alternate avenue for Supreme Court review.

Selected Procedural Safeguards

The following table cites relevant federal rules and/or court decisions, as well as provisions of the UCMJ and applicable rules, but makes no effort to provide an exhaustive list of all procedural authorities.