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 Crimes in the Military

All crimes in the military are defined in the Uniform Code of Military Justice (UCMJ).  The UCMJ has crimes that are specifically spelled out, like Article 120 (Rape), and are referred to as specific articles.  This is much like the civilian system, where a state government enumerates what conduct is prohibited.  Unique to the military system, however, is Article 134, the General Article.  This article allows the military to prosecute anything as a crime, so long as they can prove that the conduct prosecuted is either prejudicial to good order and discipline, or is of a nature to bring discredit to the armed forces.  Article 134 also allows adoption of local laws within CONUS that can then be prosecuted as a General Article violation.  A common use of Article 134 in the military is in the charging of possession of child pornography, under the legal theory that it brings discredit upon the military for its members to be viewing, possessing, or distributing child pornography.

Investigations in the Military

There are numerous ways of investigating members of the military.  Minor transgressions may be investigated through a commander-directed investigation (CDI) or by the unit first sergeant.  Minor to moderate allegations are typically investigated by the military police unit where the suspected misconduct has taken place.  Major criminal investigations are typically handled by specialized units within each military department.  The Department of the Air Force has the Air Force Office of Special Investigations (AFOSI), the Department of the Navy has the Naval Criminal Investigative Service (NCIS), the Department of the Army has the Criminal Investigation Command (CID), and the Coast Guard has the Coast Guard Investigative Service (CGIS).  The investigators work closely with the base legal office throughout their cases, and they typically will have gathered a lot of evidence and talked to a lot of witnesses before they interrogate you.  Keep in mind that, although they refer to it as an interview, they are not interviewing you.  They are interrogating you.  If they think you've committed a crime, then they are not talking with you to try to help you out, they are interrogating you because they want a confession from you so that they can send you to jail.  It's that simple.  

Nonjudicial Punishment

Minor crimes can be handled through administrative forums.  Under Article 15 of the UCMJ, your commander can offer you the chance to be punished for a crime administratively, where he or she has the power to find you guilty of the allegation and punish you through reduction in rank, forfeiture of pay, assignment of extra duties, restriction to specified limits, and "correctional custody," i.e. like jail.  The end result is a damaged military career, but no criminal record.  You have to consent to be punished in this forum, meaning you can turn it down and demand a trial by court-martial.  

Court-Martial

A court-martial is where you will be prosecuted if charges are brought against you that are too severe to be handled in a lesser forum like nonjudicial punishment.  If convicted at either a Special or a General Court-Martial, you will have a federal criminal record that stays with you for the rest of your life.  If convicted at a Summary Court-Martial, you may or may not have a criminal record, depending on the state.

A Summary Court-Martial (SCM) is only for enlisted members, and is the lowest form of a court-martial.  You have to consent to be tried at a SCM, and the maximum penalty is capped, regardless of the offense, at thirty days confinement (for E-4 and below only), forfeiture of 2/3 pay for one month, reduction in rank (to E-1 for E-4 and below; one stripe for E-5 and above), extra duties, restriction to specified limits, and a reprimand.  

A Special Court-Martial (SPCM) can try both enlisted and officer members, but cannot confine or punitively discharge an officer.  Hence, officers are usually not tried at a SPCM.  The maximum penalty for enlisted members at a SPCM, regardless of the offense, is one year of confinement, a bad conduct discharge, reduction to the rank of E-1, forfeiture of 2/3 pay for twelve months, extra duties, restriction to specified limits, and a reprimand.  A SPCM is similar to a misdemeanor court in the civilian world, though each state interprets a conviction at a SPCM differently, with some treating all convictions as misdemeanors, and others treating it based on what the actual charge was to determine whether to treat you as having been convicted of a misdemeanor or a felony.

A General Court-Martial (GCM) can try both enlisted and officer members.  The maximum penalty at a GCM is whatever the crime specifies under the UCMJ, including the death penalty for capital cases.  A GCM can issue either a bad conduct discharge or a dishonorable discharge to enlisted members, or a dismissal to officer members (equivalent to a dishonorable discharge).  Before a case can be tried at a General Court-Martial, you have the right to have an investigation pursuant to Article 32 of the UCMJ performed by a neutral and detached investigating officer (IO).  This is like a preliminary hearing, where the IO takes evidence and writes a report to the commander on whether charges should go to a GCM.  Unlike the civilian preliminary hearing though, you have the right to be present during the hearing, to cross examine all witnesses, and to present anything in defense.

A court-martial is different than a civilian court.  First, the jury is not made up of your peers.  Each member must be senior in rank to you.  Enlisted troops can be tried by a jury made up of all officers, or can request enlisted jury members, where at least 1/3 of the jury members must be enlisted.  Second, except for capital cases, the jury does not need to be unanimous to reach a verdict of guilty.  Only 2/3 of the jurors must agree to find you guilty.  Third, there is no requirement that there be twelve jurors like in the civilian world.  On the contrary, a SPCM requires only three jurors, and a GCM requires only five.  So if you're at a SPCM with three jurors and two of them think you're guilty, then you'll be convicted.  Fourth, the jurors, in addition to the attorneys, get to ask questions of the witnesses.  Lastly, if the jurors find you guilty, they also then decide upon a sentence, rather than having the judge decide upon a sentence.

The findings phase of a court-martial is where the prosecution has to prove you guilty beyond a reasonable doubt.  They bear the burden of presenting evidence, through exhibits and witness testimony, that will prove you guilty of what they've charged you with.  Your defense attorney's job is to weaken their case through cross-examination of witnesses, motion practice, and possible presentation of evidence.  They have to prove your guilt without ever referencing your right to remain silent, meaning if you were ever interrogated and did not agree to answer questions, they can never tell that to the jury, or the case will be dismissed.  At the end of the findings phase, the jury deliberates.  If the required majority of jurors vote to find you guilty, then you are found guilty.

If you are found guilty, either through a guilty plea, or because the jury has found you guilty, then the court-martial immediately moves into the sentencing phase.  At the sentencing phase, the prosecution is allowed to present evidence of aggravating circumstances of what you've been convicted of, and rehabilitation potential.  For example, in a case where you've been convicted of stealing money from a friend, they may call the friend to testify about any negative impacts he or she has experienced as a result of the convicted crime.  The defense is then allowed to present evidence of extenuating circumstances or of mitigating factors.  This could include evidence that it was a crime of opportunity rather than being planned in advance, or that it happened while suffering extreme emotional turmoil in your life.  The prosecutor then gets to make a sentencing argument, as does the defense.  The jury then deliberates and votes on what it feels is an appropriate sentence.  Like the findings phase, only 2/3 of the jurors need to agree to a specific sentence, unless the sentence includes ten years or more of confinement, which requires the consent of 3/4 of the jurors.

Punishments

The punishment that most people fear the most is confinement.  It's not surprising that a person fears being taken away from his or her family for months or years and imprisoned.  It's the most immediate consequence of being found guilty at a court-martial, because if confinement is adjudged, you are immediately taken into custody and delivered to the nearest confinement facility to begin serving the sentence.

Though most people wouldn't think of it, a punitive discharge is viewed as being even more severe than confinement time.  A punitive discharge, especially a dishonorable discharge or dismissal, has life-long consequences, including the loss of all veteran benefits.  This can be devestating for someone who needs help through the VA once they are out in the civilian world.  It can also mean the loss of your retirement, impacting not only you, but your entire family.

Pretrial Agreements

A Pretrial Agreement (PTA) is the military version of a plea agreement.  It is a contract between an accused and the commander that convened the court-martial whereby the accused agrees to enter guilty pleas to some or all of the charged offenses, and the commander agrees to limit punishment to certain things, or take some other action.  The jury or the judge does not get to know what the commander has agreed to do until after issuing a sentence.  The accused gets the benefit of whatever is less.  If the PTA says the commander will approve no more than three months confinement, and the court issues a sentence of six months, then the most the commander can approve is three months.  If the PTA says no more than three months and the court issues a sentence of one month, then the most the commander can approve is one month.

Post Trial

After the court-martial has concluded with a finding of guilty and imposition of a sentence, the commander that convened the court-martial takes action on it.  This means that he or she approves it as adjudged, or approves anything less than what was adjudged.  In essence, the court-martial itself is like a recommendation to the commander on what final action to take.  Before taking final action, you get to submit any additional matters to the commander directly through the clemency process, and you can ask for anything, such as not approving the entire sentence, or setting aside the entire conviction.  After considering your clemency request, the commander takes final action on the sentence.  If you were found not guilty, however, there is no additional action, as the commander can not overturn a finding of not guilty.

Appeals

If convicted and sentenced to a punitive discharge, or conviction for a year or more, your case is automatically appealed to the Court of Criminal Appeals for your service branch.  From there, your case can be appealed to the Court of Appeals for the Armed Forces (CAAF), and then on to the Supreme Court of the United States.

Alternatives to Court-Martial

You are allowed to ask to be discharged in lieu of being tried by a court-martial.  Such requests, if granted, usually result in an administrative discharge that deprives you of all veterans' benefits.  Such requests are not routinely granted, but sometimes the government will grant them in a case where the defense has successfully weakened the prosecution's case through pretrial work and motion practice.  

What Does It All Mean?

It means that the earlier you have an attorney, the better your chances are.  Only a defense attorney works on your behalf.  The sooner you have one, the sooner he or she can formulate a defense.  This is especially true in a case where the evidence is spotty early on, and your attorney can seek alternative means of resolving the case, whereas if the government has invested a lot of time and energy into the case, they will be less likely to do anything other than seek the maximum penalty possible.

Though I would be honored to represent you, it is your decision on whom you retain.  The important thing is that you retain someone, and you do it early.  As soon as you discover that you are suspected of a crime, usually after being read your rights by an investigator, you should talk with an attorney.

Dedicated to defending those that defend our freedom.