Military Justice – Week 2Jay CanhamConstitutional Rights of Service Members

Military as Specialized Society

“The Supreme Court of the United States has long recognized that the military is, by necessity, a specialized society separate from civilian society…the rights of men in the armed forces must be conditioned to meet certain overriding demands of discipline and duty.”

Individual v. “Clear danger”Analysis in this area: Constitutional Rights of the Individual v. “Clear danger” to legitimate military interests:• Security of Installation• Orderly accomplishment of mission• Preservation of morale, discipline and readiness

Due Process Protections• Advance notification of adverse government action and

opportunity to reply; and• Opportunity to inspect government documents and files and

interview government witnesses; and• Opportunity to have input into government decisions

affecting them; and • Assistance from a legal professional.

Freedom of Expression: Limitations on Service-members

• Disrespectful speech toward military superiors;• Disclosure of classified information; • Discussing official matters outside of the military without

proper authorization.• Contempt for office holders by Officers under Art. 88 of the

UCMJ.• Disobedience/Mutiny/Soliciting desertion

Expressing grievances?• Service may file grievances to their superiors through formal

procedures that require responses from superiors.• Service members are also given the right to communicate

directly with elected civilian officials

Freedom of the Media

The public display or distribution of written material should be prohibited if the service member’s interest in expression is outweighed by command interest in maintaining morale, good order, and discipline.

Working with the MediaAppearing on the News

• Normally not in uniform;• Normally not on base;• Can’t speak for the military

Right to Peaceful Assembly On Base

A commanding officer may prohibit on-base demonstrations such demonstrations may present a clear and present danger to good order, discipline, and morale.

Right to Peaceful Assembly Off-Base

The commanding officer may prohibit service members from attending off-base demonstrations under circumstances that would: • provide for a material interference with the military mission;

or• On duty; or• In a foreign Country; or• Where activities constitute a breach of law and order; or• Violence is likely

If Allowed to Demonstrate Off-Base

Service members should not be in uniform while attending demonstrations or public group meetings because it will appear to civilians that the military is giving its official support to a particular group.

Political Activities

Service members may vote for the political candidate of their choice; Service members are prohibited from:• Becoming a candidate for an elected office;• Or participating directly in an election campaign for a

particular candidate.• Marching or riding in partisan political parade• Making contributions to partisan candidates or participating in

partisan fundraising.

INFORMAL DISCIPLINARY ACTION, NON-JUDICIAL PUNISHMENT & ADMINISTRATIVE

SEPARATION

Types of Discharges

1. Honorable Discharge: Retain all Veteran Rights2. General Discharge under Honorable Conditions: Retain most

Veteran Rights.3. Other than Honorable Discharge: Lose many Veteran

benefits.

Resulting from Courts-Martial: Lose almost all of your benefits• Bad Conduct Discharge: Special Court-Martial• Dishonorable Discharge: General Court-Martial (For enlisted) • Dismissal: General Court-Martial (For Officers)

Non-Judicial Punishment or Article 15

• A form of discipline which provides commanders an essential and prompt means of maintaining good order and discipline.

• Only provides minimal due process

Non-judicial Punishment (NJP)

1. Administrative….not judicial. No rules of evidence, no judge.

2. Non-adversarial. No lawyers (different for Officers)3. Minimal Due Process…but career implications. 4. Only for Minor Offenses…common sense test.

Non-Judicial Due Process

Minimal due process protections: Rights of notice, to appear at the hearing and respond to the evidence.

At the hearing, accused will have the right to:1. Have a personal representative2. Opportunity to review evidence, know the charges3. Present evidence and witnesses (if available) 4. Standard of Proof: A preponderance of the evidence5. The right to refuse NJP.

Limitations on NJP• NJP may only be imposed once per offense and NJP may not

be increased once it has been imposed;• NJP may not be imposed for offenses which were committed

more than two years before the date of imposition.

Punishment & Suspension• Possible punishment: Forfeitures of pay, restriction, extra

duties, reduction in rank; on ship “bread & water!”• Can not exceed sixty days restriction or forfeiture of one half

pay, per month, for two months. • Commanders may suspend all/part of any NJP awarded

Administrative Separations

A process by which an individual is released from active duty. Depending on the type of separation, the amount of due process will vary.• Voluntary: Parenthood, Conscientious Objector, physical

disability……most of these will result in a general/honorable discharge.

Involuntary separationsRequire a higher degree of due process.Separation based on misconduct and the possibility of an other than honorable discharge (OTH), examples include:

• Drug use;• Pattern of misconduct (x2);• Minor disciplinary infractions (x3);• Civilian conviction;• Commission of a serious offense;

Rights at an Administrative Discharge Board• Notification & detailed description of the reason for the

proposed separation; and• Assistance from a military attorney/civilian attorney; and• Right to inspect evidence presented at the hearing; and• Time to prepare for a hearing before three officers and

present evidence & call witnesses; and• The right to appeal the decision to a civilian discharge review

board after separation.

STRUCTURE OF THE MILITARY COURT SYSTEM

Court-Martials

Convening a Court-Martial:• A court-martial is convened by a Commanding Officer who is

known as the Convening Authority.

Types of Courts- Martial• Summary Courts-Martial: No Civilian equivalent, handles

minor misdemeanors.• Special Courts-Martial: Similar to R.I. District Court, w/limited

criminal jurisdiction to handle misdemeanors.• General Courts-Martial: Similar to R.I. Superior Court,

unlimited criminal jurisdiction to handle felonys.

Summary Court-Martial

Not really a criminal court!• No right to a defense counsel; and • Presided over by a Summary Court-Martial Officer:• A commissioned officer; and• Usually a Captain (0-3) or higher; and• Performs the role of Judge, Prosecutor, Defense • Counsel and jury!

SUMMARY COURT-MARTIALJurisdictional Limitations: • Jurisdiction only over enlisted service members, and may be

conducted only with their consent; and• Punishment of up to one-month confinement, or other

relatively modest punishment, may be imposed. • Can’t be awarded a discharge!

Composition of a General/Special Courts-Martial

• The Military Judge• Military Trial Counsel (Prosecutor) and Defense Counsel• Jurors: In the Military called a MEMBER

The Military Judge• A commissioned officer, always a Major (0-4) or above;• A member of the bar of a state or federal court; and• Certified as a military judge.

Military Trial Counsel (Prosecutor) and Defense Counsel

• Graduate of an accredited law school; • Members of a state and federal bar; and• Certified competent to perform trial duties.

Jurors: MEMBERS• Any active duty service member is eligible to serve on a court-

martial panel. • Normally, Members are Officers, or in the case of an enlisted

service member, Senior Enlisted. • Members cannot be junior to the accused in rank; or• Involved as a government witness, investigator, or counsel.

Basics of a General/Special Courts-Martial

Special Court-Martial: No right to refuse • May be tried by Military Judge Alone or with Members• Members panel is composed of at least three (3) Members.• May impose punishment no greater than:• 1 year confinement & a bad conduct discharge• Forfeiture of 2/3rd pay per month for not more than 1 year; and • A reduction in rank to E-1.

General Court-Martial

Only after the facts have been investigated by the Grand Jury equivalent called an Article 32 Investigation.• At least five Members; and• Has jurisdiction over all offenses under UCMJ; and• May impose any lawful sentence, including death.

Due process protections at a Courts-Martial• Charges referred to a court-martial panel by a commanding

officer with authority to convene courts-martial; and• Formally notified of the charges; and• View all evidence prior to the trial and must be given an

opportunity to interview witnesses; and• Case to trial within 120 days from date of formal charges or 90

days from the date the accused is placed in pretrial confinement;

• Entitled to free legal representation by an assigned military lawyer, and the accused may hire a civilian lawyer at his or her own expense.

Courts of Criminal Appeals[Insert Name of Particular Service] Courts of Criminal Appeals:• One each for the Army; Air Force; Navy-Marine Corps; and

Coast Guard.• Has between nine and twelve judges who sit in three judge

panels.• The accused has a military appellate defense counsel

appointed for him at no charge. • Courts of Criminal Appeals have the power to decide matters

of both fact and law… have complete power of review.

Court of Appeals for the Armed Services• Five-member court comprised of civilian judges.• The judges are appointed for fifteen-year terms and no more

than three judges can be from the same political party.• This Court decides issues of law, but not fact.• The Court can invalidate any regulation, executive order, or

statute that conflicts with higher authority.

Military Justice – Week 2Jay CanhamConstitutional Rights of Service Members