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    Court Basics

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    4. About Military Courts
    5. About Military Courts

    The Military Court System and Process

    What happens when you break a law in the military?

    When a service member is arrested or suspected of breaking the Uniform Code of Military Justice (UCMJ), either their commander or a criminal investivation agency decides on the disciplinary action. This includes what type of court-marital trial the service member may face.

    What is the Uniform Code of Military Justice?

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    The Uniform Code of Military Justice (UCMJ) is a set of laws that describe and define the military justice system and how it works. It addresses criminal offenses and violations of the Code of Military Conduct. The UCMJ applies to each tier of military court. It contains the rules for court-martial and military trials. It sets out military court procedures and lists the maximum punishment for each offense.

    What Kinds of Legal Issues Does the UCMJ Cover?

    The Uniform Code of Military Justice deals with criminal charges and violations. It lists the court procedures and maximum punishments for each offense. Crimes include DUI, desertion, fraud, insubordination, property distruction, mutiny, etc.

    What courts hear military cases?

    Article I, Section 8 of the United States Constitution gives Congress the power to “make rules for the Government and Regulation of the land and naval Forces.” This power allows for the armed forces to enforce their laws through courts-martial.
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    Criminal cases in the military are heard in the:

    1. Courts-martial
    2. Court of Criminal Appeals
    3. United States Court of Appeals for the Armed Forces
    4. United States Supreme Court

    Non-Judicial Punishment (NJP) is used for less serious criminal offenses and breaches of military regulations. The Navy refers to NJP as a “captain’s mast.” The Army and Air Force use the term “Article 15” for an NJP. The Marines call it “Office hours.” There is no judicial hearing with an NJP. The commander hears the evidence and decides the punishment.

    Why Do We Need Military Courts?

    The purpose behind a separate military court system is to ensure:

    • Streamlined procedures were essential to promote military discipline and order; and
    • Some criminal offenses are unique to the military.

    Desertion, insubordination, being absent without leave —these offenses have no application in the civilian world.

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    What is the role of the commanding officer in a military court case?

    The role of the commanding officer in military justice is unique; in all but the most serious cases, they decide if someone will be prosecuted. Commanders usually turn such crimes over to a criminal investigative agency like the Army’s CID or the Navy’s NCIS. Rape and sexual assault cases automatically are handled by the criminal investigative agency of that military branch.

    Less serious offenses are handled by the commander of the base or military installation.

    The commander has multiple options:
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    They may decide the accused is innocent and take no action
    They may take administrative action (examples: mandatory counseling, a formal reprimand, involuntary separation from the military);
    They may choose a non-judicial punishment (NJP), where the commander holds the hearing and rules of evidence do not apply. The accused may speak or call witnesses. If the commander rules against they, the accused may appeal to a more senior commander.
    They may send the case to courts-martial, where one of the three types of courts-martial (summary, special, or general) would be chosen. However, only very senior commanders can send a case for a general court-martial.

    Do only Military Lawyers Practice in Military Courts?

    Cases are heard by judges or panels, depending on the type of procedure and level of offense. Each military service has a Judge Advocate General Corps (JAG) staffed by military officers who are also lawyers. JAG officers act as prosecutors, and in cases with serious offenses, JAG officers are appointed as defense counsel. In some cases, an accused can hire civilian counsel to represent them. The details of the judges and lawyers in each type of proceeding will be discussed in the next section.

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    How do you appeal a military conviction?

    Convictions are appealed to the Courts of Criminal Appeals. There are four Courts of Criminal Appeals (CCA), one for each of the four military service branches. Appeals to the CCA from a conviction are mandatory when the sentence is death, dishonorable discharge, dismissal of an officer, or imprisonment for more than one year.
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    The next level of appeal is to the U.S. Court of Appeals for the Armed Forces. It is exclusively a criminal appeals court. The court is comprised of 3 civilian judges who are appointed by the President to serve 15-year terms. The Court reviews only questions of law. It does not evaluate the evidence on questions of fact.

    The appeals courts generally have a three-judge panel that reviews and rules on cases. Judges serve at the pleasure of the Judge Advocate General and do not have fixed terms.

    The final possible level of appeal is the U.S. Supreme Court by a petition for certiorari. Few military cases are accepted. Those that are accepted impact the rules of the military justice system. For example: in Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supreme Court held that the USCAAF did not have the authority to issue an injunction preventing the Air Force from dropping a convicted officer from its ranks.