Understanding the Courts-Martial Process
The Uniform Code of Military Justice or UCMJ is the code of military criminal law and procedure. It is applicable to all branches of service and U.S. Military Members worldwide. The various criminal offenses proscribed by the UCMJ, known as the Punitive Articles, are contained in Part IV of the UCMJ. The Punitive Articles also set forth the maximum punishment for each proscribed offense.
The UCMJ gives courts-martial jurisdiction over all servicemembers (Army, Marine Corps, Navy, Air Force, and Coast Guard). Certain retired military members can be subject to UCMJ jurisdiction, as can certain individuals serving organizations assigned to serve with the military and enemy prisoners of war. Article 2, UCMJ U.S.C. § 802. The principal of military criminal law that courts-martial jurisdiction depends not on where the offense was committed, but solely on the military status of the accused at the time the offense was committed. Solorio v United States, 483 US 435, 437 (1987).
Types of Offenses
The UCMJ contains both offenses that are analogous to civilian crimes as well as military specific offenses.
Examples of Civilian Analog Offenses under the UCMJ are Murder (UCMJ Article 118); Rape and other Sexual Assault (UCMJ Article 120); and Robbery (UCMJ Article 122).
Examples of Military-Specific Offenses include Desertion (UCMJ Article 85) Malingering (Article 115) and Conduct Unbecoming and Officer (Article 133).
In addition to the offense enumerated in the UCMJ, service members may be tried at court-martial for offenses not specifically covered in the Punitive Articles. Using the Federal Assimilative Crimes Act (18 U.S.C. § 13), servicemembers can be prosecuted pursuant to UCMJ General Article 134 for state and federal offenses for which there exists no analogous Punitive Article. The punishment for these “assimilated crimes” generally match those punishments applicable to the corresponding civilian offense.
The Initiation of Charges
Cases begin with a report of misconduct. The service member’s alleged misconduct can be brought to the command’s attention by civilian law enforcement, through notification by military channels, a report from an alleged victim, or through direct observation of the misconduct.
When a report of misconduct is received, a Commander’s Inquiry will be conducted to examine the merits of the claim and the attendant facts and circumstances. The complexity and conduct of the Commanders Inquiry will vary based on the nature of the offenses alleged and the complexity of the case. Once the investigation is completed the commander will make a decision as to the appropriate disposition of the charges.
The commander can take the following actions in order of severity:
- Forward findings to a higher commander (if necessary) for preferral of charges to a court-martial.
- Prefer charges against the servicemember for resolution at court-martial
- Initiate administrative action (including separation from the service)
- Impose non-judicial punishment (resulting in loss of rank, pay or privileges.
- Take no action
Preferral v. Referral
The Preferral of charges is the process whereby specific charges and specifications are drafted against and accused. Any person subject to the UCMJ may prefer charges against an accused, however, the charge sheet must be signed under oath before a commissioned officer.
The Referral of charges occurs when the Court Martial Convening Authority , in consultation with the Staff Judge Advocate, issues an order directing which type of courts-martial an accused will be tried before. The three categories of courts-martial are: summary, special or general. R.C.M. 401(c).