The military is unique. It provides members and their families with housing, jobs, grocery stores, and gas stations. It only makes sense that the military would keep within its community its own judicial system. While there are several similarities to the civilian court system, military courts have unique procedures with consequences specifically geared towards its defendants—our service members.
MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including manslaughter. Contact one of our military defense lawyers today to learn more.
Differences Between Military and Courts
Like military and civilian life, military and civilian courts contain vast differences. Some of the main differences which include: (1) the fact that the military has a different set of law under the Uniform Code of Military Justice; (2) the court-martial system is unique and offer commanders and range of disciplinary options; (3) the military’s appeal process is different than its civilian counterpart; and (4) the military’s jury pool is made up entirely of service members and does not require a unanimous verdict for a conviction.
(1) Uniform Code of Military Justice (UCMJ)
The UCMJ is the set of rules and regulations that the U.S. military justice system follows. The UCMJ also serves as the authority for determining the consequences for those who break rules outlined in the code. This is the military equivalent to the civilian judicial system, criminal penal code, or laws. It should be noted that military members are still expected to abide by civilian laws, and could, in some scenarios, be subjected to trial and punishment under both the military AND the civilian court systems.
(2) The Court-Martial System
In the military court system, a court-martial is the equivalent of being charged with and being made to answer for an accusation of unlawful behavior in civilian court. There are several types of courts-martial, each with a different level of severity. These courts-martial are as follows:
- Summary court-martial – used for minor offenses. A summary court martial has only one commissioned officer hearing the case and issuing judgement. Possible penalties include: 30-days jail time, hard labor, reduction in pay grade, or forfeiting up to 66% of service member’s monthly pay.
- Special court-martial – reserved for the military equivalent of misdemeanor offenses. Punishments may include up to one year of confinement, a loss of up to 66% of monthly pay for a year or less, up to 3 months of hard labor, and a reduced pay grade. Punishment may also include being discharged from service.
- General court-martial – used for the most severe offenses, and accordingly, carries the harshest penalties. A military judge and/or a panel of service members make up the general court martial trier of fact. The defendant may choose to have the judge, alone, decide guilt or innocence. Punishments range anywhere from confinement, to loss of pay, to the death penalty.
Under Article 15 of the UCMJ, commanding officers also have the option of imposing non-judicial punishments as they see appropriate.
(3) The Appeals Process
The appeals process is another area of the judicial process that differs greatly between the military and civilian systems. In civilian courts, appeals are heard through the circuit courts and can be taken as far as the United States Supreme Court.
In contrast, each branch of the military handles their own appeals process in the military justice system. Established under Article 66, UCMJ, 10. U.S.C. § 866, by the Judge Advocate Generals (JAG) of each branch, are military’s CCAs:
- United States Air Force Court of Criminal Appeals (AFCCA)
- United States Army Court of Criminal Appeals (ACCA)
- United States Coast Guard Court of Criminal Appeals (CGCCA)
- United States Navy-Marine Corps Court of Criminal Appeals (NMCCA)
The CCAs are empowered to review and act on court-martial records by affirming, reversing, or modifying the findings and sentence in cases in which the sentence, as approved, includes:
- death;
- dismissal of a commissioned officer, cadet or midshipman;
- dishonorable or bad-conduct discharge; or
- confinement for 2 years or more.
In other words, if you were prosecuted at a General or Special Court-Martial and received a punitive discharge (dismissal, DD, or BCD) OR at least two years of confinement, a CCA will automatically review your case.
Military appeals are automatic if the convicted service member receives a severe punishment (i.e. punitive discharge); however, there are no automatic appeals in the civilian criminal court systems.
(4) Jury Composition and Unanimity
Military juries—referred to as “member” panels—work differently than civilian juries. Members of a military jury are normally commissioned military officers, however, the defendant has the option of requesting enlisted personnel to occupy some of the “jury” seats. A military jury need not consist of 12 members, as they range from three to a dozen, depending on the type of court-martial mentioned above.
Unlike in the civilian world where potential jury members are randomly selected from the community, potential jury members in the military are hand selected to serve on the case by the convening authority (the commanding general or other senior officer who convened the court-martial.) Under Rule for Courts-Martial (R.C.M.) 502, members detailed to a court-martial should be persons who, in the opinion of the convening authority, “are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament. Each member shall be on active duty with the armed forces.” The intent, therefore, is to have only the most experienced and trustworthy members on a panel.
R.C.M. 104 prohibits convening authorities from unlawfully influencing the court-martial process. This prohibition against “unlawful command influence” states that no convening authority is permitted to censure, reprimand, or admonish any court-martial member, military judge, or attorney with respect to any findings or sentence adjudged by the court-martial. In other words, members are free to make whatever decision they believe is fair and right based on the facts and evidence presented at trial, without fear of retaliation or reprisal.
Most importantly, a unanimous verdict is not required in the military. Under the Constitution, United States citizens have the legal right to be judged by a jury of their peers, which usually consists of 12 members. To be convicted of a crime in civilian court, all 12 members must unanimously agree on the issue of guilt.
Unlike a civilian court where a unanimous decision is required for conviction, in a military court the Government needs at least three-fourths of the military panel to secure a conviction in most cases. A sentence of death is an exception and requires a unanimous finding of guilt and a unanimous determination by the members that death is the appropriate sentence.
Protect Your Freedom and Your Military Future
The biggest concern that service members should have is the experience and knowledge of their defense attorney. Military defense attorneys are not able to represent the accused service member until the investigation is done. The results of that investigation determine what level of court-martial the accused will face. This can include life-changing consequences that will have long-lasting impacts on the accused soldier’s life, military career, and family.
An experienced, civilian attorney—whose only job it is to defend your rights—is mission critical. The team at Military Justice Attorneys combine the experiences of a civilian attorney and the military expertise of a JAG officer. If you’ve been court-martialed, or have concerns that you soon will be, don’t wait until the investigation is complete. Contact us today by email or call us at (843) 773-5501 for a confidential, no-cost consultation.
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