A summary court-martial is fundamentally different than a special or general court-martial in that it is non-judicial in nature. There is no jury, no military judge, no trial in the traditional sense of the term (usually, not even a prosecutor or defense attorney).
A summary court-martial is designed to dispose of minor, or petty, offenses in a simplified proceeding. In essence, it serves as a bridge between an Article 15 and a traditional court-martial.
The finder of fact in a summary court-martial is a commissioned officer who typically has no legal training or experience. (Article 16, UCMJ). The accused must consent to a summary court-martial; he always has the right to demand a special court-martial instead. Although he will not always be entitled to a detailed military lawyer, he can always hire civilian counsel at his own expense.
The maximum punishment at a summary court-martial is reduction to the lowest enlisted grade; forfeiture of two-thirds pay for one month; and either confinement for one month, hard labor without confinement for forty-five days, or restriction for two months, or combinations thereof. See UCMJ Art 20, RCM 1301(d)(1)-(2). If the accused is an E-5 or higher, a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction, except to the next lowest pay grade. See Article 20, UCMJ.
How it's Used
A summary court-martial is rarely used in a vacuum-–that is, most commanders use a summary tool as a means to an end. These uses generally fall into two different scenarios, and you should familiarize yourself with the different issues surrounding each.
First, we see summary courts-martial being used when an accused turns down an Article 15, also known as non-judicial punishment or NJP. When this happens, commanders rarely take a case directly from NJP to a special court-martial and often prefer charges at a summary court-martial. While this raises the stakes for an accused, it could solve one of the basic reasons why a service member may have elected to turn down NJP in the first place: a biased command.
Because nearly everyone gets convicted and “maxed out” at an NJP, service members may not feel they can get a fair shake, no matter the evidence against them. Thus, they will often turn down the NJP so that their case can be heard by someone who does not have the bias, actual or perceived, of the commander imposing the NJP.
Doing this raises the stakes, as a summary court-martial permits confinement for up to 30 days whereas an Article 15 does not – but at least the service member has a better shot at being found not guilty if they have a case to present.
The Independence of the Summary Court-Martial Officer
In general, any military officer who can convene a general or special court-martial can also convene a summary court-martial. See UCMJ Article 24. Typically, however, it is the O-5 level battalion commanders who have been delegated the authority to convene summary courts-martial based on a delegation from their higher commanders. See UCMJ Article 24(a)(2), RCM 1302(a)(2).
The independence of the appointed summary court-martial officer is a whole different issue. Battalion-level commanders normally appoint one of their subordinate officers to serve as the summary court-martial-hearing officer. These are typically hand-selected officers who don’t rock the boat and are expected to return the result the command is seeking.
The manual for courts-martial states that the summary court-martial officer should, at least, be someone of judicial temperament who is thoroughly prepared to execute his duties in an impartial manner (RCM 1301 (b)). In reality, though, most officers have no legal training whatsoever and are often in the pocket of the commander who appointed them.
Additionally, he or she is charged with acting as both the finder of fact and the prosecutor – insofar as he presents the case against the accused. See RCM 1304(b)(2)(E). He will typically have a legal advisor who works in the same JAG office as the prosecutor and legal advisor to the command.
Summary Courts-Martial Proceedings
The proceedings of a summary court-martial are – on paper – similar to those of an actual trial. Before the court starts, the accused is advised of his rights and acknowledges that he understands those rights. RCM 1304(b)(1). The accused is then asked to enter his plea of guilty or not guilty, although before entering his plea, he can file a motion to dismiss the charges (for failure to state an offense, for example) or for other appropriate relief, such as a motion to suppress evidence. RCM 1304 (b)(1).
While this sounds advantageous on paper, in practice, it seldom is. When the accused has no legal representation (unless he hires civilian counsel), it is unlikely that he will have the knowledge and skill necessary to draft a brief discussing the constructional requirements for suppressing evidence, or any other legal motion. Even if he does, a summary court-martial officer who lacks legal experience will have no way of appropriately ruling on any such motion.
As civilian counsel, when we represent an accused service member at a summary court-martial and can file pre-trial motions, the summary court-martial officer will have to consult with a legal advisor, usually an administrative law attorney working closely with the prosecutors. It is, needless to say, an uphill battle.
Assuming charges are not dismissed before the plea, an accused pleads guilty or not guilty. If an accused pleads not guilty, the summary court-martial officer must ensure that the accused is actually guilty of the offense he is charged with and there is an allocution or providence inquiry. RCM 1304(b)(2)(D). If the case is contested, the summary court-martial officer, who is also the fact finder, presents the case against the accused based on the information and evidence he is given by the command. The accused may make evidentiary objections (if he knows them) and has the ability to cross-examine any witnesses against him. RCM 1304(b)(2)(E).
At the conclusion of the government’s case, the accused may call his own witnesses and put on a defense. RCM 1304(b)(2)(E). At the close of the case, the summary court-martial officer deliberates and renders a verdict. If found guilty, the accused may then put on matters in extenuation and mitigation for the officer to consider before determining the appropriate punishment.
While in theory an accused can get a fair shake at a summary court-martial, the deck is typically stacked against him: the conviction rate at summary courts-Martial in most jurisdictions is extraordinarily high. At least it won’t be the actual commander passing judgment on you.
Nevertheless, it will be someone appointed by his boss and advised by someone who works closely with the prosecutor, not to mention that the accused does not have a right to counsel. It is for this reason that many accused turn down the summary court-martial and just demand a special court-martial – so that a military judge or a jury may try him or her.
When Should You Accept a Summary Court-Martial?
When deciding whether a summary-court martial is advantageous, you must consider the ultimate goal or best possible outcome. Say it’s a case of serious misconduct: there are substantial evidence and a high likelihood of conviction under a special or general court-martial.
In this case, you may be better off either a) keeping the case at the summary court-martial level or b) negotiating with the command and trial counsel to move the case to a summary court-martial, including entering into a pre-trial agreement where the accused agrees to plead guilty in exchange for the case being disposed of at the summary court-martial level.
While the summary court-martial is typically not a “fair” process and the results are often a foregone conclusion, in these types of situations, the worst result at a summary court-martial (getting “maxed out”) is substantially better than the likely result if the case was taken to a special or general court-martial. In this regard, it is advantageous to have the charges “moved down” from a special or a general to a summary court-martial, especially when evidence of guilt is extremely high.
On the other side of the coin, if the evidence does not support the offense and the service member would very likely be acquitted at a special or general court-martial, you should consider turning down the summary court-martial and demanding that the case be tried at a special court-martial, where the accused is not burdened by a biased, handpicked officer acting as the proverbial judge, jury and executioner.
Essentially, if you have a real shot at winning at trial and you feel the command is using the summary court-martial process to railroad you, a “turn down” is often a plausible and advantageous option. It is critical, however, to be aware that the punishment can get much worse if should charges actually be preferred at a special or general court-martial – namely, a federal conviction and significantly more confinement time if you are found guilty.
Many times, however, if the case is truly unsupported by the evidence and the command is using the summary court-martial process to railroad a service member, and you have a court-martial lawyer with a reputation as someone who fights and wins, charges will not get taken to a higher level and the case will end up as a negative counseling statement. In that case, you went all in and the government folded.
The third potential course of action – which is rarely considered – is to litigate the summary court-martial when you have an investigating officer who may actually be unbiased. In this scenario, the attorney can actually make an appearance on his client’s behalf or “ghost write” various motions to file. If this is done properly, the experienced defense counsel will be unchecked; a trial counsel or prosecutor is rarely present at the summary court-martial since it’s the investigating officer’s job to represent the government.
As we’ve discussed, your will probably not get a fair shake at a summary court-martial. However, if the you are facing serious charges, it may be advantageous for you to negotiate an agreement at the summary court-martial to have the charges disposed of. A defense attorney must also go in with the mindset that the system is not used to seek out the truth and “do justice,” but rather to allow commanders to quickly dispose of cases (i.e. find service members guilty) and use that as a basis for separation.
In sum, when a service member is all but guilty, a summary court-martial conviction is substantially more favorable than a federal conviction that involves serving an extended time in confinement. The key is getting those special and general-level cases down to a summary.
Advantages of a Summary Court-Martial
The biggest advantage to a summary court-martial lies not in the ability to put on a defense in the hopes you will be found not guilty (which rarely happens) but in limiting the exposure to a service member who will likely be found guilty at any level of courts-martial.
In limiting this exposure, an E-4 or below could only be sentenced to a maximum of 30 days confinement and a finding of guilty at a summary court-martial is not a federal conviction (See Middendorf v. Henry, 425 U.S. 25 (1976), and service members found guilty do not face a punitive discharge as part of their sentence. Even when a service member is “maxed out” and given 30 days confinement, this is automatically reduced to 25 days unless you get into trouble in confinement.
This five-day reduction is based on an administrative “good time” credit by the confinement facility for good behavior. (See generally U.S. DEP’T OF ARMY, REG. 633-30, APPREHENSION AND CONFINEMENT: MILITARY SENTENCES TO CONFINEMENT.)
Another advantage to a service member is expediency. If you would like to have the allegations adjudicated in the quickest manner possible, a summary court-martial may be the best route available. This is also a selling point for a commander who would like to move the case as quickly as possible. Perhaps the commander feels that you are a “cancer to the unit” or that his misconduct is greatly affecting good order and discipline.
While that commander may wish for a special court-martial, the reality is that in most jurisdictions it will take four to eight months to move a case from preferral of charges to a verdict at trial. Many commanders simply do not want to have a service member sitting around “on the books” waiting for trial, causing more problems or taking up a spot that could be filled by another service member. In a summary court-martial, a commander can typically dispose of a case in a matter of weeks as opposed to months.
If you are in a position where you do not care about discharge from the military or your characterization of discharge (something that should be discussed in-depth with an attorney), that disadvantage could be sold as an advantage to the command and an enticement for them to take what would otherwise be a special court-martial down to a summary court-martial.
PRACTICE POINTERS: Litigating the Summary Court-Martial
As stated previously, when the attorney believes that the appointed summary court-martial officer will be fair and unbiased, a good tactic is to litigate the summary court-martial like an actual trial. This includes filing motions, requesting witness production, voir-diring the summary court-martial officer for independence, making an opening statement, cross-examining witnesses and making a closing argument. This tactic is best reserved for cases in which there is evidence to support your position and in cases where you have vetted the summary court-martial officer.
Fully litigating a summary court-martial can be advantageous because a defense counsel often goes unchecked. Since the military rules of evidence apply at a summary court-martial (and the defense attorney is likely the only one in the room who knows them), a well-prepared defense counsel can wreak havoc on the proceeding, including in the “pre-trial” motions practice.
This is particularly easy to do in urinalysis and other “drug” cases that do not involve a confession and have been taken to a summary court-martial. In this example, the accused can accept the summary court-martial, plead not guilty and file motions in limine objecting to the admission of the drug testing reports (DTR’s) produced by the drug testing facility – stated that those reports containing testimonial hearsay.
If the motion is successful and the drug testing reports were not admitted, there would be no evidence against the accused. If the summary court-martial officer admitted the DTR’s, this would be the type of material the attorney would file in the clemency /1105 matters directly to the convening authority and re-litigate at the administrative separation board should that happen down the line. If later separated, you may have a solid basis for a discharge upgrade.
Even if the DTR’s came into evidence, under Ake v. Oklahoma, the defense may then be entitled to an expert witness, specifically a forensic toxicologist, which would have to be funded by the command. A savvy defense attorney could leverage this against the command, requiring delays and the funding for a forensic toxicologist (which could run $15,000 to $20,000 or more), persuading the command to drop the charges against the accused.
Alternatively, the summary- court officer can acquit the accused in lieu of producing the expert witness.
If the summary court-martial officer does not dismiss the charges, you can fully litigate the summary court-martial as if it were a full-blown trial. While few attorneys do it, an accused is not prohibited from in-person representation. If the Trial Counsel gets wind of the fact that the accused is being represented, in person, by a civilian defense attorney, they may show up and take on the role of the prosecutor in the case.
To avoid this, it is often better to take the “stealth bomber approach”: keep a low profile prior to the summary court-martial’s beginning and have the attorney make an appearance the morning of the hearing. If the government has failed to bring the witnesses that you requested, ask for a dismissal of charges. If they have brought all the witnesses, take it on like a full-blown trial; you will be met with little resistance and the summary court-martial officer will often be left with a one-sided version of events – the side that favors you.
While working on a Marine Corps sexual assault case on Mainland Japan which was essentially a “he said, she said” drunk sex case with no physical evidence and a motive to fabricate. This case initially started out at a general court-martial and, after a fully litigated Article 32 hearing, we revealed that this case had more holes than a screen door. The Article 32 preliminary hearing officer recommended that the charges not go forward against our client, but the command was scared of the potential backlash from the “victim” for not proceeding at some level of a court-martial.
The command referred the case to a summary court-martial. Once the summary court-martial officer was appointed, we filed our witness list just as we would have if the case had gone to a general court-martial. In this particular case, on the day of the summary court-martial, we made a personal appearance and fully litigated the hearing in the same manner we would have at trial, but with little resistance from anyone in the government. After a nearly nine-hour hearing (most are less than 30 minutes), the officer acquitted our client.
This case was unique only in that it started out as a general court-martial. The principle still applies, however. If you have a good defense and you believe the summary court-martial officer is not completely biased and tainted against you, there is nothing stopping a defense attorney from turning the summary court-martial into a mini-trial, one in which you will meet with little opposition.
PRACTICAL POINTERS: Pretrial Agreements at a Summary Court-Martial
If you do have a case which starts out at a special court-martial and would be appropriate to negotiate to a summary court-martial (i.e. bad facts, full confession, overwhelming evidence of guilt, accused wants fast resolution, accused is amenable to a bad paper discharge), one strategy is to use the pre-trial agreement to your advantage.
In many cases, after being educated on the benefits (to the command) of a summary court-martial, many commanders are willing to send the case to a summary court-martial if they have an assurance that the accused will plead guilty (so that they don’t get burned by civilian counsel “litigating”) and also an assurance that the accused will be separated from the military once he has served his punishment. A guilty plea in exchange for summary court-martial adjudication can be a win-win situation for both the command and the service member.
In other words, a pretrial agreement would give the command quick and guaranteed adjudication of the offenses under a simplified version of the summary court-martial (one in which the accused pleads guilty), and as part of the pre-trial agreement, the accused waives his rights to challenge the follow-on administrative separation hearing.
A defense attorney in the military system, however, must always be careful with plea agreements and reserve them for the cases that are in the client’s best interest. If the attorney gets the reputation for pleading all of their clients guilty, or for frequently submitting deals for a summary court-martial with an OTH waiver, the commander and their trial counsel will sense this as a weakness and start referring more cases to a special court-martial (with lousy evidence) with the expectation of a quick plea from the defense.
A winning court-martial defense attorney must always be willing to go the distance and take a case to verdict when necessary.
The Fast Track Disposition
Keeping in mind that the commands and trial counsel will capitalize on perceived weaknesses in a defense counsel (e.g. always pleading cases guilty and not fighting), we have seen many commands that lean on service members and convince them to take what is called the “fast track” disposition. In this situation, the command threatens a higher level of court-martial in order to get an accused to plead guilty at a summary court-martial.
This scenario is quite different from what was described above, where you are taking a case with overwhelming evidence of guilt from a higher level of court-martial to a lower one. In the “fast track” scenario, the evidence against the accused is typically very weak and the command tries to bully the accused into accepting a summary court-martial and a bad paper discharge.
In these scenarios, the commander will work with his assigned trial counsel and prepare the preferral packet, including the evidence against the accused and a memorandum entitled “Fast Track Disposition” in which the commander states that he believes the evidence is accurate, reliable and supportive of the alleged offense, and that he is prepared to prefer charges at a special court-martial.
The memorandum typically continues that if the accused is willing to plead guilty to all the charges, waive his administrative separation board and accept an other than honorable discharge, that he will send the case to a summary court-martial. This “fast track” packet will also contain a pre-drafted and pre-signed offer to plead guilty in which the accused pleads to all of the charges, gives up all of his rights and waives his discharge board.
There is often great pressure on an accused to accept these “fast tracks” and often times they never get the advice of counsel when signing these agreements, pleading guilty to charges and guaranteeing an end to their military career and discharge benefits via the other than honorable discharge.
A service member needs to be extremely leery and skeptical of these “fast track” dispositions. The military often grossly overcharge, only show the portions of the evidence which are inculpatory, and give them arbitrary deadlines to pressure them into signing the offers to plead guilty.
Many unscrupulous commanders and trial counsel use these fast track dispositions routinely against service members in cases where the evidence would likely never sustain a conviction. Fearful of standing up to a commander, and fearful of the threat of extended confinement time should they be convicted at a special court-martial, most service members simply think they are defeated and sign the “fast track”.
In many cases, simply submitting a notice of representation, demanding full discovery and telling the commander (and his trial counsel) that you will not accept any “fast track” disposition and that you are willing to go to trial, will keep the commander from ever preferring charges.
Essentially, you are calling their bluff, and if you have a civilian defense lawyer with a reputation as a fearless trial attorney who does not back down and fights for their clients, many times the accused will never get charged in the first place.
To illustrate this point, we received a call from a Marine who was on a training rotation at Mojave Viper who allegedly used the butt of his rifle to wake up a fellow Marine who was sleeping at his post while on guard duty. The command felt this was some sort of hazing incident because of the way it was reported to the command by the individual who fell asleep. The client was an outspoken but highly skilled Marine whom the command saw as a liability. This “incident” gave them a basis, albeit a poor one, to charge this Marine and use that charge to kick him out of the Marine Corps.
To do this, the command handed him a packet with a charge sheet, a handful of statements made by the “victim” and one witness (no other investigation was done), a two-page plea agreement and a “fast track” disposition coversheet. This Marine was basically told that hazing and assault of fellow Marines would not be tolerated, that he was about to be charged at a court-martial, but that they would cut him a break and give him a “deal” if he signed the offer to plead guilty that was presented to him.
The command pitched it as a way to keep him from getting a federal conviction, limit his confinement time from 12 months to 30 days and made it appear as if he would have no shot at winning if it went to trial. Instead of being offered to speak with a defense attorney, this Marine was allowed to speak with the Adjutant, one of the JAG attorneys on the command’s staff – who essentially told the Marine that it was in his best interest to accept the “fast track” despite the obvious potential conflict of interest. An arbitrary deadline of 24 hours was then put on the “fast track”.
Fortunately, this Marine called our office, took pictures of the “evidence” that was provided to him with his iPhone, and we took the case. After doing some relatively basic investigation of our own, we realized that there was a completely different side of the story that the command never bothered to investigate. The client turned down the “fast track” disposition and the command never brought charges against him after that.
In that case, as is typical across many of the services, the command attempted to railroad the accused using the summary court-martial process. While all cases are obviously different, a court-martial attorney – especially one who deals with the same commanders and trial counsels often – must gain a reputation as an individual who does not systematically plea out all of their clients and holds the commander’s feet to the fire when they try to misuse the system.
Had that client accepted the fast track disposition, he likely would have been “maxed out” and given 30 days in confinement. While sitting in the brig, the command puts together the paperwork to administratively separate the client with an other than honorable discharge (essentially taking away all of his benefits) and the day he walks out of confinement, he has orders and clearing paperwork in his hand and his days in the service are numbered.
Whether or not an accused ended up at a summary court-martial via a fast track or an Article 15 turn down, or if charges originated at the summary court-martial level, the findings of guilt at the summary court-martial are almost always used as a basis to separate the service member with either a general, under honorable conditions discharge or an other than honorable conditions discharge – both of which typically take away a service member’s eligibility for the post-9/11 GI Bill, VA loans and other educational assistance.
Given the potential value of the post-9/11 GI Bill, going to a summary court-martial in which a guilty verdict is almost a foregone conclusion, and knowing those findings will be used to separate a service member with bad paper – a summary court-martial can cost a service member over $100,000 in potential lost benefits. While this system was never designed for that purpose, to ensure an easy conviction which is then used as a basis for a bad paper discharge, commanders and JAG legal advisors are using this lower level of due process protections to service members to their advantage to win cases against service members. Knowing this system is being manipulated is critical to defending clients in which a summary court-martial is an option.
The summary court-martial is a unique beast in the military justice system, a bridge between the non-judicial and the judicial, a tool used by commanders to swiftly adjudicate cases and then discharge service members. Unfortunately, this system is all too often manipulated and the results a foregone conclusion – a guilty verdict and getting “maxed out.”
However, given that the finding of guilty is not considered a federal conviction and the maximum sentence is 30 days confinement and no punitive discharge, there are scenarios when the summary court-martial can be beneficial and used to your advantage. The key is to know the realities of the summary court-martial and how to strategically use them to win cases.
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