Military Status Is the Key
. Article 2 of the Uniform Code of Military Justice, (Section 802 of Title 10, United States Code), UCMJ, lists twelve categories of individuals that are subject to trial by court-martial. The categories of persons are: military personnel, whether active, reserve, or retired; members of certain quasi-military organizations (e.g., Public Health Service members when serving with the armed forces); military prisoners; prisoners of war; and under very limited circumstances, certain specified categories of civilians. (The U.S. Supreme Court, however, has prohibited the court-martial of any civilians accompanying the armed forces in the field during peacetime. In addition, certain punitive articles of the UCMJ, by their express terms, may only be used to punish members of the armed forces.)
Court-martial jurisdiction is most commonly exercised over active duty personnel. All active duty personnel are subject to the UCMJ and amenable to court-marital jurisdiction throughout their period of active service. Status as an active-duty service member, and hence court-martial jurisdiction over such persons, ordinarily begins with enlistment or commissioning and terminates with the delivery of a valid discharge certificate or separation order.
Members of a reserve component in federal service on active duty, as well as those in federal service on inactive-duty training, are also subject to the UCMJ. A reservist remains subject to court-martial jurisdiction without regard to any change between active and reserve service or any change within different categories of reserve service for offenses committed while on active duty or in an inactive-duty training status. This does not apply, however, to a reserve member whose military status is completely terminated after commission of an offense.
Members of the National Guard or the Air National Guard are not subject to the Uniform Code of Military Justice unless performing Federal service.
The United States military deploys worldwide, often on short notice, with large numbers of military personnel and unique disciplinary requirements. Since most American criminal laws are not applicable outside of the United States, it is important to have a system of criminal justice that can wherever our troops are deployed. As such, the military services need a flexible, separate, military justice system capable of operating in times of peace or conflict, under the same standards at home or abroad. That system is the Uniform Code of Military Justice, or "the Code." It is a system of criminal justice that is deployable and applies in all places.
The Uniform Code of Military Justice (UCMJ) is found at Sections 801 through 946 of Title 10, United States Code. Enacted in 1950 as a major revision of then-existing military criminal law, the UCMJ became effective the following year. The UCMJ has been amended on a number of occasions since then, with significant changes occurring in 1968 and 1983. It is promulgated by Congress pursuant to the Constitution and includes the system’s jurisdictional basis, substantive offenses, and the basic procedural structure. In the military justice system, courts-martial have the power to try any offense under the Uniform Code of Military Justice, except when prohibited from so doing by the Constitution. The rule enunciated by the U. S. Supreme Court in Solorio v. United States, 483 U.S. 43 (1987), is that jurisdiction of courts-marital depends solely on the accused’s military status as a person subject to the Uniform Code of Military Justice, not on a "service-connection" requirement regarding the offense charged. Any violation of the Code is now within the military’s jurisdiction, regardless of whether the offense was committed at home or abroad, on or off the military installation, or while the member was on or off duty.
. The UCMJ is essentially a complete set of criminal laws. It includes many crimes punished under civilian law (e.g., murder, rape, drug use, larceny, drunk driving, etc.), but it goes beyond that to punish other conduct which affects good order and discipline in the military.
These "unique military offenses" involve conduct that need not be made criminal in civilian life, but must be made offenses in a military justice system because the misconduct goes to the heart of military duties. For example, in civilian life, if people choose to be disrespectful to a civilian supervisor, or if they choose not to go to work or to quit their job for any reason – that decision does not potentially violate any criminal laws and is a matter between them and their supervisor. Military members, however, have tremendous responsibilities and must be counted upon to perform them. These responsibilities require that the military have a disciplinary system that enables commanders to respond to such misconduct - potentially with criminal charges. When a military member doesn’t report for duty, the consequences to the mission and national security can be quite severe. Unique military crimes include, for example, such offenses as desertion, absence without leave, disrespect towards superiors, failure to obey orders, dereliction of duty, wrongful disposition of military property, drunk on duty, malingering, and conduct unbecoming an officer. The UCMJ also includes provisions punishing misbehavior before the enemy, improper use of countersign, misbehavior of a sentinel, misconduct as a prisoner, aiding the enemy, spying, and espionage. Some of those offenses are capital offenses, meaning the maximum punishment is death. The UCMJ reflects the seriousness and importance of the military’s mission and recognizes that ultimately the safety of our forces and the security of our nation are being protected.
Officers’ Special Responsibilities
. Traditionally, all military systems place additional and special responsibilities upon officers. Article 133 of the Uniform Code of Military Justice (10 USC § 933) establishes the offense of "conduct unbecoming an officer and gentleman (or gentlewoman)." This article may be violated by any action or behavior in an official capacity that, in dishonoring or disgracing the person as an officer, seriously compromises that person’s character or standing as an officer.
In addition to the enumerated punitive articles of the Uniform Code of Military Justice, Article 134, (10 USC § 934), makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as "Clauses 1, 2, and 3" of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces or it is of a nature to bring discredit upon the armed forces.
Clause 3 offenses involve noncapital crimes or offenses that violate Federal law. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code, wherever the wrongful act or omission occurred. These are referred to as crimes and offenses of unlimited application.
Clause 3 offenses also involve offenses made applicable to the military through the Federal Assimilative Crimes Act. These are referred to as crimes and offenses of local application. The Federal Assimilative Crimes Act is Congress’ adoption of state criminal laws for areas of "exclusive or concurrent" federal jurisdiction, in so far as the federal criminal law (including the UCMJ) has not already prescribed an applicable offense for the misconduct committed. For example, if a person committed an act on an exclusive jurisdiction area of a military installation in the United States, and it was not an offense specifically defined by federal law (including the UCMJ), the military person committing the act could be punished by a court-marital. The additional requirements would be that the misconduct was not specified as an existing UCMJ offense and that the offense was not a capital offense under the law of the State where the military installation was located.
The UCMJ does not classify offenses as petty offenses, misdemeanors, or felonies. Whether an offense is considered within any of these classifications is a matter of other federal or state law definitions..
Types of Courts-Martial
. There are three types of courts-martial - summary, special and general.
. Trial by summary court-martial provides a simplified procedure for the resolution of charges involving minor incidents of misconduct. The summary court-martial consists of one officer who, depending upon Service policies and practice, is a judge advocate (a military attorney). The maximum punishment a summary court-martial may impose is considerably less than a special or general court-martial. The accused must consent to be tried by a summary court-martial.
. A special court-martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused, officer or enlisted, may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than twelve months confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of two-third’s basic pay per month for twelve months, a bad-conduct discharge (for enlisted personnel), and certain lesser punishments. An officer accused in a special court-martial cannot be dismissed from the service or confined.
. A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel, and at least five court members. Again, an enlisted accused may request a court composed of at least one-third enlisted personnel. Unless the case is one in which the death sentence could be adjudged, an officer or enlisted accused may also request trial by judge alone. In a general court-martial, the maximum punishment is that established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment. A pretrial investigation under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial, unless waived by the accused.
. Courts-martial have exclusive jurisdiction over purely military offenses. In the case of an offense that violates the Uniform Code of Military Justice and the criminal law of a State, other Federal law, or all three, it must be determined which jurisdiction will prosecute. This decision is normally made through coordination between appropriate military authorities (ordinarily the chief military lawyer at an installation (Staff Judge Advocate)) and appropriate civilian authorities (United States Attorney or District Attorney’s Office).
The fact that an accused is subject to trial by court-martial does not eliminate the possibility of trial by another jurisdiction, either in addition to or in lieu of court-martial. Under the United States Constitution, a person may not be tried for the same misconduct by both a court-martial and another federal court. Such an act would violate the Constitution’s double jeopardy clause.
Criminal prosecution in both federal and state courts is also a constitutional possibility. The Constitution’s double jeopardy clause is not applicable because two different sovereigns are involved, i.e. the federal government and state government. As a matter of policy, however, a person who is pending trial or has been tried by a State court is ordinarily not tried by court-martial for the same act.
Commission of an offense overseas may result in trial by the host nation. Under international law, a foreign nation has jurisdiction to punish offenses committed within its borders by members of a visiting force, unless it expressly or impliedly consents to relinquish its jurisdiction to the visiting sovereign. Generally, the United States has concluded Status of Forces agreements with host nations that indicate which sovereign will have primary jurisdiction over particular offenses. To the extent possible, efforts are made under such agreements to maximize the exercise of court-martial jurisdiction over military members or other persons subject to the Uniform Code of Military Justice.