Court Martial Introduction
A court martial, a military tribunal used to try military members for crimes that fall under the Uniform Code of Military Justice (UCMJ), is an essential part of military law. The United States Armed Forces recognizes the need for a disciplinary system that is fast and flexible enough to handle the complex challenges presented by service in the military. In many cases, for example, a service member deployed away from home cannot always wait for conventional civilian trials to work through their busy dockets. For this reason, courts martial play such an important role in supporting the chain of command. Indeed, courts martial have been an integral part of the U.S. military since 1775.
With so much riding on the well-established and periodic use of courts martial, it is essential for anyone considering a court martial defense to have a clear understanding of the three types of courts martial: summary, special, and general . While each type of court martial serves a fundamentally similar purpose, they differ in terms of process and outcome.
The summary court martial is intended for minor offenses. In some cases, a summary court could also be an option when the accused is a junior service member. The special court martial is also reserved for less serious offenses, but has the distinction of being able to impose longer terms of confinement and administrative discharge. Military members facing the possibility of a general court martial are up against the most serious offenses and potential sanctions. Furthermore, a general court martial requires the trial of a panel, or jury, of selection and the appointments of a judge advocate as the law member presiding over the proceedings.
Summary Court Martial
The Summary Court Martial is convened by a Commanding Officer (CO) and is typically made up of a single officer. The next step in the process is the appointment of a Judge Advocate to oversee the proceedings and ensure it complies with relevant procedures set out in the Manual of the Navy Discipline Instructions (MNDI), Chapter 39, an important point as its lack of compliance could make any decisions made by the court illegal.
A CO can appoint any officer or officer of the rank of Lieutenant Commander or higher to preside over a Summary Court Martial. A merchant navy captain or chief engineer may be appointed if a military officer is not available. When a case is referred to a Summary Court Martial the CO will appoint a member of the Royal Navy as Judge Advocate, if possible, or for a specialist Navy Judge Advocate to be brought down from the UK.
A Summary Court Martial is typically conducted in situations where:
It is not designed to replace normal proceedings, but with respect to minor offences, the punishments currently available to Commanding Officers often do not provide sufficient flexibility. For example, a Commanding Officer often cannot hand out confinement longer than four months, and to impose a sentence longer than this would require a trial by Court Martial which would be disproportionate with the nature of the offence.
The rights of a person subject to naval law under a Summary Court Martial are protected by a Seventh and Eighth Assistant Judge Advocate who attends all proceedings if a case is transferred from the Summary Hearing. One of these officers is tasked with protecting the procedural rights of the member of the Service, while the other is to protect the interests of the Service.
If a workforce has committed a number of minor indiscretions it is often more efficient to group all offences and hold one hearing. In these cases, it is referred to as a ‘summary hearing’. As a summary hearing can still be held in the presence of a Judge Advocate, it may appear that the proceedings should be the same as that of a Summary Court Martial, but in many ways they are significantly different.
When a Summary Court Martial is convened there are almost always strict time limits applied to the administrative process, whereas with a summary hearing there are none. It is a much less "formal" process, but the Member still has the right to have the case presented to the Judge Advocate and to have legal advice.
Special Court Martial Proceedings
A special court martial is convened to adjudicate offenses which carry with them the potentially of more punishment than a summary court martial can address, but which do not warrant the officer-only adjudication of a general court martial. The special court martial therefore has, in essence, the same jurisdiction as the general court martial, except that enlisted personnel have the right to have at least one-third of the panel composed of enlisted personnel (there may be other professionals on the panel) whereas in a general court martial, the panel members are officers only. The offenses that fall within the purview of the special court martial are many and varied. They include, among others: • Absent Without Leave. (AWOL) • Failure to Obey Order or Regulation • Assault • Making a False Official Statement • Violation of a Non Commissioned Officer Order (NCO) • Possession or Distribution of Controlled Substances, including Marijuana, • Disorderly Conduct or Drums. The special court martial procedures are essentially the same as the general court martial except that enlisted members will comprise at least one-third of the panel, and the accused cannot demand the personal appearance of witnesses. If the accused requests a personal appearance the military judge may exercise discretion to allow it if it can be accomplished "within a reasonable time and at no expense to the United States." The sentence that can be imposed at a special court martial is also the same as a general court martial, except that confinement is limited to twelve months instead of confinement for life, and discharge from the service (other than honorable discharge) is forfeiture of two-thirds base pay for a period of up to 12 months instead of up to 18 months.
General Court Martial Proceedings
The General Court Martial is the highest level of court martial. This type of court martial can hear and determine serious cases. In fact, the General Court Martial can hear any military offense for which a non-military court could impose a maximum sentence of death or confinement for life without parole. The General Court Martial consists of a military judge and a panel of at least five, but not more than twelve officers. There are special courts-martial on limited inquiry authority that do not require a presiding officer and may be composed of as few as three officers. A General Court Martial may be convened to hear any offense covered by the Uniform Code of Military Justice (UCMJ) and may impose a maximum sentence which includes death, dismissal from office and pay, dishonorable discharge, confinement for life without parole or life without confinement at hard labor, 5 and 10 years imprisonment; forfeiture of pay and allowances, extra duty, reduction of rank and a reprimand.
The procedures in a General Court Martial are much more rigorous than those of the Summary Court Martial or Special Court Martial. General Court Martial Judges are required to undergo training continuing education and meet certain professional standards. Military Judges sit year-long terms under orders from a superior that make them available when and where needed. Military judges must be qualified attorneys licensed in any state, D.C., or territory. Military Judges keep a full calendar of cases and they do not participate in their own rotation. Further, there is no appeal of a summary court martial or a special court martial. All cases heard in a general court martial may be referred to the Court of Appeals for the Armed Forces to be reviewed comprehensively. The General Court Martial is the trial-level of court martial that would most closely resemble a felony trial in the civilian world.
Court Martial Types Summary
While all court-martials are designed to uphold the rule of military law, the level to which they are handled and the jurisdictions involved differ.
The first level of court martial, the summary court martial, can be sentenced with offenses of minor nature. The sole objective of this type of court martial is to introduce a quick trial in those cases with the least amount of possible consequences for the responsible party. For this reason, it’s important that these types of charges are handled in a way that provides the accused with a fair chance for due process. To be sentenced to a summary court martial, the offender must be a first offense for an active duty E-4 or below.
A step above the summary court martial is the special court martial, where middle-level offenses and mid-range punishment are concerned . The goal of this type of sentencing is to penalize offenders while also protecting those who serve our country. Basic jurisdiction for this type of court martial includes:
The highest level of military court martial is the general court martial, which involves extremely serious offenses and maximum punishment. Because the general court martial is the most severe type of sentencing, both in terms of potential ramifications and in regards to the length of judicial proceedings, it is subject to the jurisdiction of the president. This type of court martial is designed to handle those who have committed the most grievous acts against military law and order, including those that endanger citizens on both a national and global scale. Offenses that merit a general court martial include terrorism, murder, and espionage.
Court Martial Accused Rights
The rules governing the accused’ s rights are different in the three types of court martial. In general, although military discipline does permit speedy processes, all three types of court martial must not cause manifest injustice to the accused.
Both standing and special courts martial afford the accused the right to be represented by a qualified lawyer. In the case of a general court martial, the accused has the right to be represented by a civilian lawyer of his or her choice. A service lawyer can be chosen in the case of a standing court martial, but only where a standing court martial is convened as a result of the particular circumstances set out in section 176(2) of the Armed Forces Act. Otherwise, the options for representation of the accused are more limited.
All members of a court martial are volunteers who have been allowed to be members of the court. All have undergone specialist training. Members of standing and special courts martial are supplemented by a qualified legal adviser (LA) who is a member of the armed forces and serves as his or her superior.
Civilian representatives do not have an automatic right of access to closed courts martial. In the case of a closed general court martial, the civilian representative for the prosecution or the defence will be present if there is any prospect of private evidence being given. If a closed panel court martial is convened, the civilian representative will be excluded from the proceedings unless the accused or a judge advocate (JA) so orders. The business of a closed panel court martial is normally conducted by a military judge sitting with two military members.
Proper regard must be had for the fairness of proceedings and the protection of the reputation of the service as a whole, and questions of proportionality also arise.
The civil appeal system has no application to courts martial. Applications to the Supreme Court for leave to appeal from a decision of the Court Martial Appeal Court must be made within one month of the Court Martial Appeal Court giving judgment. Only the Attorney General can bring an appeal from a decision of the Court Martial Appeal Court. Applications for a certificate from the Court Martial Appeal Court Supreme Court asking for guidance on legal issues of general importance that arise in appeals, or for an extension of time, can be made. There is no mechanism for the Chief Justice to refer an appeal to the Supreme Court.
Military discipline has specific requirements. Any punishment must be appropriate for the offense. However, there is no binding precedent to follow. The courts martial system is only required to reach the correct result as to the remedy based on the particular facts given to it. The Court Martial Appeal Court will ensure that the principle of fair trial is followed.
Court Martial Conclusion and Resources
In conclusion, being accused of a violation is a very serious matter that should be approached with the utmost of caution. Court martial are not only criminal military court proceedings, but they also have the potential to cause you to lose money or your rank, or even result in a loss of your military career. That is why it is so important to understand the ins-and-outs of the three types of court martial. If you do have questions regarding your military charges, be sure to speak to your defense attorney for further information. There is a lot at stake, however , if you don’t fully understand the gravity of your situation – and what’s more, with a skilled and experienced attorney working on your side, you will have the upper hand in attaining a more favorable outcome for your case. The book, "Military Law and Defense Attorneys, Former Military Lawyers Representing Soldiers & Civilians in Civilian and Military Courts," which can be viewed on the book store section of this website, covers many different aspects of military law and procedures, and would be a good resource for further research into this area of the law.
