Court Martial Process

GUILTY UNTIL PROVEN INNOCENT

You are here because you or a loved one is under investigation or currently charged with an offense under the UCMJ.  The process is as daunting as it is complex.  It’s also about prospective.  Commanders and JAG’s will tell you that you are innocent until proven guilty, and while that is a correct statement of the law, it’s simply not the reality.

We provide an understanding into the court-martial system from the perspective of experienced civilian defense attorneys who have been in the trenches – who have experienced the traps encountered during the process and know how to overcome them.  Simply put, these videos and content provide a road map for understanding the court-martial process.  Before you can even think about how to win, you have to know the basics.  

Here are the topics covered:

  1. What To Expect When You Are Under Investigation​
  2. Preferral Of Charges​
  3. Article 32 Hearing
  4. Referral Of Charges​
  5. Motions and Litigation​
  6. Trials
  7. Sentencing Hearing

What To Expect When You Are Under Investigation

Preferral Of Charges

Article 32 Hearing

Contact a military criminal defense attorney at Bilecki & Tipon LLLC to discuss your court martial charges. 
Call anytime, day or night, 24 hours a day, seven days a week – 808-745-1041.

Referral Of Charges

Litigating Motions

Trials

Sentencing Hearing

An Overview Of The Process

For those with little to no knowledge of the court-martial process, we begin with a brief overview of the process from the defense perspective.  Much has been previously written on the various stages of a court-martial, from preferral of charges, to Article 32, to referral and trial.  Our goal, however, is not to re-state the myriad of material that has been previously written, but to give the 35,000-foot elevation view with an eye towards illustrating the fundamental, but not so obvious, differences between the civilian and military legal systems.  We also point out the potential landmines to watch out for along the way and how to defuse them.

Differences Between Military and Civilian Court Process

The fundamental difference between a criminal investigation and trial in the military and civilian world is the overarching role of the commander.  Over-reliance on an accused’s commander causes rank to permeate the system and can lead to considerable problems for an accused – and his defense attorney – once he has been suspected of a crime in the military.  

The Basics

To understand this at its basics, you must always remember that a court-martial is a military tribunal convened by an accused’s commander to try a particular case.  It is not part of the federal or state judiciary in which the accused is stationed.  For example, an accused stationed at Fort Shafter, Hawaii who has court-martial charges levied against him, will be tried in a military court – likely located in Hawaii – with no oversight from the state or federal court system in Hawaii.  A court-martial trial will not bar prosecution for the same offense under the state or federal court system should they have concurrent jurisdiction over the accused.  Additionally, military appeals are almost always handled entirely by military appellate courts, not federal or state courts.

This raises the question: which system–military, state, or federal–best provides safeguards and due process for an accused?  While many argue that the military provides an accused suspected of a crime with greater protection than its civilian counterparts, the point of view from an accused facing a court-martial, or his or her defense attorney, is often substantially different.  

You Have To Understand The Commander’s Role In the System

At all stages in the court-martial, an accused’s commander, an individual with minimal–if any–legal training who is nearly always biased, will decide when to direct an investigation, when to charge a service member, what to charge him or her with, whether to use the judicial or non-judicial process and, if judicial, at what level of court-martial to send the case.  Understanding the commander’s role in the system is critical to understanding what you are up against and how to take on the command and prosecution team that is building a case against a military accused.  

In the court-martial system, the first step of a trial is the “preferral” of charges, in which the client is formally charged with an offense.  Before preferring and then swearing to the charges, the commander is supposed to ensure that a thorough and impartial inquiry into the charged offenses is made.  The inquiry can take place in several forms, the most common being an investigation conducted directly by military law enforcement, which is typically the Criminal Investigative Division (CID) or the Naval Criminal Investigative Services (NCIS).  When military law enforcement is not involved, the commander can order a command-directed investigation, wherein an officer (known as an Investigating Officer) is appointed to investigate an alleged incident or crime.  These typically take place when the allegations are not serious enough to warrant law enforcement involvement.  An example of this is a command-directed investigation into alleged dereliction of duty by one of the members of the command.

What You & Your Attorney Need To Know

If you are going up against the system, you and your court martial lawyer must know the process and use the proper tactics and techniques for dealing with both the command, the investigating officer, and the JAG office during these command-directed investigations, as they are often the first step in what will turn into adverse administrative actions or court-martial.  

Based on the initial investigation, whether done by military law enforcement or a command-directed investigation, the commander decides how to initially dispose of the allegation.  He or she may choose to prefer charges against the accused, utilize non-judicial punishment, pursue adverse administrative action, or do nothing.  If a commander elects to prefer court-martial charges against an accused, they must then forward them up the chain of command with recommendations as to the disposition of the case.

The Major Problem With The Court Martial System

The problem with this system should be obvious: a person who typically has no legal training and no law enforcement experience is responsible for deciding whether to charge a service member with a criminal offense.  Before a commander makes this decision, he will usually obtain the legal advice of the servicing judge advocate, called a trial counsel (TC), or his SJA.  Their involvement in vetting a case and providing legal advice on whether or not to prefer charges against an accused may be the first time anyone with legal training has looked at the case.  This stage in the process is important but, in the military, a service member generally cannot be appointed a military attorney at this point unless they are in pre-trial confinement.  As a result, there is a missed opportunity to shape the discussion between the Government’s lawyers and the command.  In contrast, a civilian attorney can represent a service member and discuss the case directly with the command before they make a charging decision in the case. 

The 4 Things A Commander Can Do With An Allegation

As we’ve said, the commander can do one of four different things with an allegation: 1) take no action at all, 2) take non-punitive action, 3) use non-judicial punishment or 4) prefer court-martial charges.  

  1. Take no action at all:  The best result for an accused who is suspected of a crime is for the commander to take no action at all on the case.  This can happen for a myriad of reasons: the commander may believe that no misconduct happened in the first place, that some misconduct happened but it does not warrant any action. A commander taking no action against an accused suspected of a crime in the military is rare.  Typically, he’ll want to appear tough on crime and as a defender of good order and discipline, so he will take some action against an accused, even it is a non-punitive measure such as a negative written or oral counseling.One successful way to have a commander take no action in a case is to have a civilian court-martial attorney work directly with the trial counsel and/or the commander to advocate your position.  There are effective tactics and techniques for accomplishing this while avoiding pitfalls – though they are often unknown to inexperienced attorneys.
  2. Non-punitive Action: This will usually come in the form of some negative written counseling or reprimand that will likely end any opportunity for promotion or re-enlistment.  A service member can generally respond to such a negative written counseling by submitting rebuttal matters.Crafting effective rebuttal matters that cause the negative written counseling to be rescinded (withdrawn) or only temporarily filed in a service member’s personnel file, requires an attorney of exceptional skill.
  3. Nonjudicial Punishment:  What is an Article 15?  One option available to a commander, and routinely used throughout all of the services, is nonjudicial punishment.  Often referred to as an Article 15 in the Army and Air Force, Captain’s Mast in the Navy, and NJP in the Marines, it is designed to allow commanders to impose punishment on a service member for minor offenses without the rigors of the court-martial process. 

    Article 15 of the UCMJ mandates that a service member may only be found guilty if the imposing commander is convinced that he or she actually committed the offense in question.  The standard of proof in the Army for an Article 15 is “beyond a reasonable doubt,” which is the highest standard known to the law and is identical to the standard of proof used at courts-martial and civilian criminal trials.

    Proof beyond a reasonable doubt is defined as proof to an evidentiary certainty: “The proof must be such as to exclude not every hypothesis of innocence, but every fair and rational hypothesis except that of guilt.”  However, in the other services, the standard of proof is much lower: a preponderance of evidence (51%).

    Commanders without any legal training often misunderstand that standard or purposefully misapply it and, under the auspices of maintaining “good order and discipline,” routinely find service members guilty of offenses where there is insufficient evidence.

    While common sense dictates that there is no better way for a commander to show his or her troops that they (and the military justice system) are truly fair than to find a service member not guilty at an Article 15 hearing, this rarely happens.

    Commanders are often more concerned with the appearance of being tough and the worry that service members will think they can get away with misconduct if a soldier is found not guilty.  Unfortunately, many innocent service members get caught up in this flawed philosophy and are found guilty when they are actually innocent.

    While NJP is not the primary focus of our law firm, we understand the tactics and techniques that can be used when our clients are facing NJP, when to leverage a “turn down,” and how to get cases from the court-martial level back to NJP when appropriate.

  4. The Court-Martial:  The commander’s final option is to simply prefer charges against the accused to a court-martial.  Once a commander makes this decision, his next step is to determine the level of court-martial the case will be preferred.  Unlike the civilian court system, the military does not have petty, misdemeanor and felony offenses.  Instead, there are three distinct levels of courts-martial to which a charge can be preferred: summary, special, and general.

THE “SHORT MARTIAL”

The 2017 National Defense Authorization Act created a new version of the special court-martial, which is similar to a civilian bench trial (judge only).  Due to the restrictions on punishments and the expediency in which they can be convened, they are commonly referred to as a “short martial.”  At a “short martial” the case can only be heard by a military judge; the accused therefore does not have a right to a trial by members.  The maximum offense authorized is six months confinement and no punitive discharge (i.e., dishonorable / bad conduct) can be awarded.  

In this forum, it is critical that the military attorney utilize a defense – often a technical one – that plays well in front of a military judge instead of a jury.  Doing an elements checklist and picking off certain elements can be critical in winning a bench trial.  These are now looked at as the military’s misdemeanor level trials, but a finding of guilty is still a federal conviction.  

SPECIAL COURT-MARTIAL 

The Special Court Martial is really the first level at which an accused service member has a right to jury trial in the traditional sense of the term – where his or her case will be presided over by a military judge and the accused has a right to a jury (called a panel in the military). 

In a special court-martial, the accused is tried by either a military judge alone (a bench trial) or by a military panel (a jury) consisting of five members.  This is a vast distinction from the civilian jury trial system where a jury consists of 12 members.  Both a trial counsel (prosecutor) and a military defense attorney are appointed by the court and an accused has the right to hire a civilian attorney at no expense to the government or request a specific military defense attorney – called an Individual Military Counsel (IMC).  

The maximum punishment at a special court-martial is hard labor without confinement for one year and forfeiture of two-thirds of one month’s pay for one year.  The court may also sentence an accused to a punitive discharge, though a special court-martial may not sentence an accused to a dishonorable discharge, as that is reserved for a general court-martial.  

Due to the one-year maximum sentence limitation, a special court-martial is often incorrectly referred to as the military’s misdemeanor court.  In fact, the military does not recognize the distinction between a misdemeanor and a felony.  Typically, most convictions at a military court-martial is considered a felony in the civilian sector – though this is dependent on the actual charges, the maximum punishment allowed and the specific civilian jurisdiction in question.

GENERAL COURT-MARTIAL

A general court-martial is the most serious type of court-martial, the one in which the stakes are the highest.  Procedurally and strategically, the biggest difference between a special and a general court-martial is that no case can be referred to a general court-martial without an Article 32 preliminary hearing.  Before a general court-martial may be convened, a probable cause hearing into the offense (known as an Article 32 hearing) must be conducted and a legal opinion stating whether the charges warrant a court-martial must be given to the convening authority before he makes a decision on referral of the charges.  

Once the charges are “referred” to a general court-martial, the composure is substantially similar to the special court-martial, with one exception: if the accused wishes to be tried by a panel there will be eight members.  If the accused is convicted, there is no jurisdictional limit of the court with regard to a maximum sentence; the limit upon a general court-martial is simply the limit set for each offense in which the accused is found guilty.  In addition to sentencing an accused to reduction in rank, forfeiture of pay, and confinement, a general court-martial may also sentence a service member to a bad conduct discharge or a dishonorable discharge.  

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