Military Courts-Martial and the Uniform Code of Military Justice (UCMJ)
Note: The following is not intended to be legal advice. It is just a basic overview of the Uniform Code of Military Justice (UCMJ) and the overall military justice process. Please retain legal counsel if you wish to obtain legal advice or need more specific information.
Initial Tips
- You have the right to remain silent if you are suspected of a UCMJ offense. Article 31 of the UCMJ, which is more comprehensive than your rights under the Fifth Amendment of the Constitution, guarantees this right. In the event someone asks you about what happened - whether that be a special agent from CID/NCIS/OSI, a police officer, a family member, a dorm buddy, or anyone - you have the right to politely decline answering any questions. If you are charged with an offense, things you say to people might be used against you. If you are being questioned by a military or other authority, you may cease their questioning of you by demanding an attorney. And by retaining legal counsel, you can discuss your case confidentially.
- Depending on your branch of service, the seriousness of your offense, and how far along you are in the military justice process, a military member generally has the right to a military defense attorney. However, a military member has the right to hire a civilian lawyer to assist in any military justice action under the UCMJ, whether the member qualifies for a military defense counsel or not. After hiring a civilian attorney, a military member has the choice to keep the military lawyer on the case to continue to help. Selecting the right attorney is a very important decision. Make sure to vet your lawyer - and you can read more about Garrett here. Obtaining counsel early on in your case may also be extraordinarily valuable.
- Undergoing a military justice action can be a very stressful undertaking. Having the support of family and friends can make a significant difference in getting through the process, and can even directing impact the outcome of a case.
- Whether guilty or innocent, defending a UCMJ charge - especially a court-martial - carries with it a number of costs, both in time and money. A civilian attorney usually charges fees and there may be court costs as well as the potential for financial penalties as a result of your case. There will likely be countless hours spent preparing for your case, as well as attending meetings and hearing dates. Court-martial penalties can also result in lack of freedom through confinement and restriction orders. However, putting the time and money into your case may result in a massive return on investment as your liberty, your rank, your income, your retirement, your ability to obtain future employment, and other life-altering consequences may be at state. Being prepared to incur the upfront financial and time costs may therefore make a huge difference.
- At a military court-martial, know that the prosecution must prove their case beyond a reasonable doubt. That is the highest standard of proof in the law, meaning the prosecutor has a very high burden to carry in order to obtain a conviction. Depending on the case, this may make a large impact on whether a case gets dropped or whether a favorable plea bargain can be negotiated. Of course, it may also make a large impact at a trial. Having a criminal defense attorney who is skilled at the art of criminal defense representing you may be critical to getting the best possible outcome. Know that Garrett Condon has that experience, just check out some of his notable cases.
- Depending on your branch of service, the seriousness of your offense, and how far along you are in the military justice process, a military member generally has the right to a military defense attorney. However, a military member has the right to hire a civilian lawyer to assist in any military justice action under the UCMJ, whether the member qualifies for a military defense counsel or not. After hiring a civilian attorney, a military member has the choice to keep the military lawyer on the case to continue to help. Selecting the right attorney is a very important decision. Make sure to vet your lawyer - and you can read more about Garrett here. Obtaining counsel early on in your case may also be extraordinarily valuable.
- Undergoing a military justice action can be a very stressful undertaking. Having the support of family and friends can make a significant difference in getting through the process, and can even directing impact the outcome of a case.
- Whether guilty or innocent, defending a UCMJ charge - especially a court-martial - carries with it a number of costs, both in time and money. A civilian attorney usually charges fees and there may be court costs as well as the potential for financial penalties as a result of your case. There will likely be countless hours spent preparing for your case, as well as attending meetings and hearing dates. Court-martial penalties can also result in lack of freedom through confinement and restriction orders. However, putting the time and money into your case may result in a massive return on investment as your liberty, your rank, your income, your retirement, your ability to obtain future employment, and other life-altering consequences may be at state. Being prepared to incur the upfront financial and time costs may therefore make a huge difference.
- At a military court-martial, know that the prosecution must prove their case beyond a reasonable doubt. That is the highest standard of proof in the law, meaning the prosecutor has a very high burden to carry in order to obtain a conviction. Depending on the case, this may make a large impact on whether a case gets dropped or whether a favorable plea bargain can be negotiated. Of course, it may also make a large impact at a trial. Having a criminal defense attorney who is skilled at the art of criminal defense representing you may be critical to getting the best possible outcome. Know that Garrett Condon has that experience, just check out some of his notable cases.
Military Justice Process Overview
Initial Investigation - Normally, a criminal case begins with the opening of a criminal investigation. That may be done by any authority, including civilian law enforcement agencies, a military investigative unit like CID or NCIS or OSI, a military police unit, or any military member in a command directed to investigate a matter by the commander. The investigation typically begins upon the allegation of wrongdoing, and the investigators look into the allegation by gathering relevant evidence. That often includes interviewing witnesses and pulling documents, but may also include searching computers, taking fingerprints, doing DNA testing, and many other techniques depending on the case. If you believe you may be under investigation, retaining a lawyer to represent you through the process at this early stage may have a massive impact on the case. Understand, as stated above, that you may politely decline to answer any questions of an investigator if they suspect you of an offense or if your statements tend to incriminate you. You may always request an attorney to be present at questioning and you may delay your interview with them until your lawyer is there. No matter how much pressure they may apply to you, know that you always have those rights.
Charging Decision - If you are suspected of an offense under the Uniform Code of Military Justice (UCMJ), your chain of command will make a decision as to whether to take military justice action against you and, if so, what type of action. Lower level actions like administrative paperwork and nonjudicial punishment ("NJP" or an "Article 15") may be handled at lower levels in your chain. Court-martial convening authorities are the commanders vested with power to refer cases to a court-martial, and they are typically much higher up the chain of command. There are three types of courts-martial: a summary court-martial, a special court-martial, and a general court-martial. The decision on what action to take is generally within the discretion of the people in your chain of command, with the advice of their servicing JAG office.
Administrative Action - There are various forms of administrative action the military can take against you. Included are written admonishments or reprimands, negative performance reports, administrative reductions in grade, and administrative involuntary separation actions from the military. None of these are criminal or UCMJ proceedings in nature, but any of them can have significant impacts on your career and your life. They can result in failure to be promoted, loss of income, loss of retirement, and loss of benefits like a GI Bill or VA disability payments. Because of the stakes, due process generally requires that you have a right to contest the action in some way as well as have an attorney help you contest the action. Read more about these actions on our Adverse Military Actions page.
Nonjudicial Punishment ("NJP" or "Article 15") - Nonjudicial punishment is a criminal, UCMJ proceeding. The source of the authority is found under Article 15 of the UCMJ, and the implementing rules are in the Manual for Courts-Martial and in military service regulations. This is a relatively serious action, as your commander may be authorized to punish you by reducing your grade, taking up to half a month's pay per month for up to two months, restrict you from leaving base, and giving you extra duties. On top of that, a record of nonjudicial punishment may result in various administrative consequences as well, such as a poor performance report, failure to be promoted, or receiving an administrative discharge. Because of the stakes, military members generally have the right to contest the action and the right to the advice of an attorney. Read more about nonjudicial punishment on our Military NJP Laws page.
Summary Court-Martial - This is the least severe type of court-martial. It is usually a rapid proceeding, done without the right to a military judge and without the right to court members (jury). Instead, any ranking officer may sit as the person who decides whether a member is guilty or not guilty and, if guilty, what the punishment will be. Because of this, a military member must always consent to being tried by a summary court-martial. If a military member does not consent, then typically the case will be referred to a special court-martial where greater protections are afforded to the accused, such as having a military judge and jury. However, there are large potential benefits of consenting to a summary court-martial, namely that there is limited sentencing authority and a conviction is not as serious as a special or general court-martial conviction. Maximum punishments vary based on the rank of the accused, but never include the potential for a bad conduct or dishonorable discharge. Confinement, if authorized, is capped at 30 days.
Special Court-Martial - A special court-martial is judicial proceeding, in practice always involving a military judge, the right to a be tried and sentenced by court members (jury), the right to a defense lawyer, the right to call witnesses and produce evidence, and the right to cross examine government witnesses. Special court-martial proceedings are largely identical with that of general court-martial proceedings, with notable exceptions being that no Article 32 preliminary hearing is required and a court member panel quorum is only three members. It is a significant criminal proceeding, however, and any conviction at a special court-martial is generally treated just like a civilian criminal conviction. If a conviction qualifies under regulations as a qualifying sexual offense, once convicted a military member may be required to abide by sexual offender registration laws. Maximum punishments at a special court-martial are lower than a general court-martial - for enlisted members the caps include confinement for no more than one year as well as no authority for a dishonorable discharge (but a bad conduct discharge may be adjudged). These sentencing caps are in place no matter how many offenses are charged and no matter what the nature of the offenses are.
General Court-Martial - This is the most severe type of court-martial. A preliminary hearing under Article 32 of the UCMJ is required, unless waived by the accused. The accused also has the right to a military judge, the right to a be tried and sentenced by court members (jury), the right to a defense lawyer, the right to call witnesses and produce evidence, and the right to cross examine government witnesses. A court member panel must contain at least five members to meet a quorum. Like with a special court-martial, any conviction is generally treated just like a civilian criminal conviction. If a conviction qualifies under regulations as a qualifying sexual offense, once convicted a military member may be required to abide by sexual offender registration laws. There is no maximum punishment cap at a general court-martial - a guilty member faces up to the maximum punishments authorized by the UCMJ. Such punishments may include, depending on the offenses an accused is convicted, total forfeitures of pay and allowances, confinement for life, and a dishonorable discharge. If referred as a capital case, a general court-martial may also adjudge a death sentence for certain offenses.
Post Trial Process - In the event a military member is acquitted of charges at a court-martial, then his or her record should be clear and life should go on as if nothing occurred. However, in the event of a court-martial conviction, a military member has the right to certain post trial rights including clemency and post trial review. A convicted military member may always ask for clemency from the convening authority (usually the commander who referred the case to a court-martial) as the convening authority in general has the power to reduce or overturn guilty findings as well as the sentence. The convening authority is not permitted to overturn a not guilty finding and is not permitted to increase a sentence. Depending on the type of court-martial and the severity of the sentence, an independent JAG will also review the file for legal errors.
Appellate Rights - Depending on the type of court-martial and the sentence, a convicted military member may also have a right to appeal their case to higher courts (and some cases get an automatic review). Each military service has an internal appellate court to review certain court-martial convictions, and these appellate courts have relatively broad power to overturn or reduce findings of guilt and the sentence. They are not permitted to overturn a not guilty finding and are not permitted to increase a sentence. After a review by the service appellate court, the losing party on appeal may then request a higher appeal from the Court of Appeals for the Armed Forces ("CAAF"). CAAF is an independent court, not part of the military, which is comprised of five civilian judges. CAAF generally has the discretion on whether to review a case or not, but CAAF is required by law to review certain cases. The losing party at CAAF may, depending on the issue, request that the United States Supreme Court then review the case. The Supreme Court has full discretion on whether to review a case or not.
Charging Decision - If you are suspected of an offense under the Uniform Code of Military Justice (UCMJ), your chain of command will make a decision as to whether to take military justice action against you and, if so, what type of action. Lower level actions like administrative paperwork and nonjudicial punishment ("NJP" or an "Article 15") may be handled at lower levels in your chain. Court-martial convening authorities are the commanders vested with power to refer cases to a court-martial, and they are typically much higher up the chain of command. There are three types of courts-martial: a summary court-martial, a special court-martial, and a general court-martial. The decision on what action to take is generally within the discretion of the people in your chain of command, with the advice of their servicing JAG office.
Administrative Action - There are various forms of administrative action the military can take against you. Included are written admonishments or reprimands, negative performance reports, administrative reductions in grade, and administrative involuntary separation actions from the military. None of these are criminal or UCMJ proceedings in nature, but any of them can have significant impacts on your career and your life. They can result in failure to be promoted, loss of income, loss of retirement, and loss of benefits like a GI Bill or VA disability payments. Because of the stakes, due process generally requires that you have a right to contest the action in some way as well as have an attorney help you contest the action. Read more about these actions on our Adverse Military Actions page.
Nonjudicial Punishment ("NJP" or "Article 15") - Nonjudicial punishment is a criminal, UCMJ proceeding. The source of the authority is found under Article 15 of the UCMJ, and the implementing rules are in the Manual for Courts-Martial and in military service regulations. This is a relatively serious action, as your commander may be authorized to punish you by reducing your grade, taking up to half a month's pay per month for up to two months, restrict you from leaving base, and giving you extra duties. On top of that, a record of nonjudicial punishment may result in various administrative consequences as well, such as a poor performance report, failure to be promoted, or receiving an administrative discharge. Because of the stakes, military members generally have the right to contest the action and the right to the advice of an attorney. Read more about nonjudicial punishment on our Military NJP Laws page.
Summary Court-Martial - This is the least severe type of court-martial. It is usually a rapid proceeding, done without the right to a military judge and without the right to court members (jury). Instead, any ranking officer may sit as the person who decides whether a member is guilty or not guilty and, if guilty, what the punishment will be. Because of this, a military member must always consent to being tried by a summary court-martial. If a military member does not consent, then typically the case will be referred to a special court-martial where greater protections are afforded to the accused, such as having a military judge and jury. However, there are large potential benefits of consenting to a summary court-martial, namely that there is limited sentencing authority and a conviction is not as serious as a special or general court-martial conviction. Maximum punishments vary based on the rank of the accused, but never include the potential for a bad conduct or dishonorable discharge. Confinement, if authorized, is capped at 30 days.
Special Court-Martial - A special court-martial is judicial proceeding, in practice always involving a military judge, the right to a be tried and sentenced by court members (jury), the right to a defense lawyer, the right to call witnesses and produce evidence, and the right to cross examine government witnesses. Special court-martial proceedings are largely identical with that of general court-martial proceedings, with notable exceptions being that no Article 32 preliminary hearing is required and a court member panel quorum is only three members. It is a significant criminal proceeding, however, and any conviction at a special court-martial is generally treated just like a civilian criminal conviction. If a conviction qualifies under regulations as a qualifying sexual offense, once convicted a military member may be required to abide by sexual offender registration laws. Maximum punishments at a special court-martial are lower than a general court-martial - for enlisted members the caps include confinement for no more than one year as well as no authority for a dishonorable discharge (but a bad conduct discharge may be adjudged). These sentencing caps are in place no matter how many offenses are charged and no matter what the nature of the offenses are.
General Court-Martial - This is the most severe type of court-martial. A preliminary hearing under Article 32 of the UCMJ is required, unless waived by the accused. The accused also has the right to a military judge, the right to a be tried and sentenced by court members (jury), the right to a defense lawyer, the right to call witnesses and produce evidence, and the right to cross examine government witnesses. A court member panel must contain at least five members to meet a quorum. Like with a special court-martial, any conviction is generally treated just like a civilian criminal conviction. If a conviction qualifies under regulations as a qualifying sexual offense, once convicted a military member may be required to abide by sexual offender registration laws. There is no maximum punishment cap at a general court-martial - a guilty member faces up to the maximum punishments authorized by the UCMJ. Such punishments may include, depending on the offenses an accused is convicted, total forfeitures of pay and allowances, confinement for life, and a dishonorable discharge. If referred as a capital case, a general court-martial may also adjudge a death sentence for certain offenses.
Post Trial Process - In the event a military member is acquitted of charges at a court-martial, then his or her record should be clear and life should go on as if nothing occurred. However, in the event of a court-martial conviction, a military member has the right to certain post trial rights including clemency and post trial review. A convicted military member may always ask for clemency from the convening authority (usually the commander who referred the case to a court-martial) as the convening authority in general has the power to reduce or overturn guilty findings as well as the sentence. The convening authority is not permitted to overturn a not guilty finding and is not permitted to increase a sentence. Depending on the type of court-martial and the severity of the sentence, an independent JAG will also review the file for legal errors.
Appellate Rights - Depending on the type of court-martial and the sentence, a convicted military member may also have a right to appeal their case to higher courts (and some cases get an automatic review). Each military service has an internal appellate court to review certain court-martial convictions, and these appellate courts have relatively broad power to overturn or reduce findings of guilt and the sentence. They are not permitted to overturn a not guilty finding and are not permitted to increase a sentence. After a review by the service appellate court, the losing party on appeal may then request a higher appeal from the Court of Appeals for the Armed Forces ("CAAF"). CAAF is an independent court, not part of the military, which is comprised of five civilian judges. CAAF generally has the discretion on whether to review a case or not, but CAAF is required by law to review certain cases. The losing party at CAAF may, depending on the issue, request that the United States Supreme Court then review the case. The Supreme Court has full discretion on whether to review a case or not.
Choosing an Attorney for a Military Court-Martial
Like the military itself, the Uniform Code of Military Justice (UCMJ) is similar in certain ways to its civilian counterpart but is very different in other ways. A military member facing disciplinary action should be very careful in selecting the right attorney to represent them. Military members are often entitled to receive the assistance of an active duty defense attorney for UCMJ matters. That is an excellent benefit and is sometimes all a person needs. But sometimes hiring a civilian defense attorney is the best option. Some questions you may want to ask a potential attorney, whether your active duty detailed defense counsel or a civilian lawyer, include:
- How long did you serve / have you served on active duty?
- How may courts-martial have you tried?
- How many litigated courts-martial have you tried in front of members as first chair?
- What types of court-martial training have you attended or taught?
- How do you keep up with current law related to the UCMJ?
- How many Article 15 cases / nonjudicial punishment (NJP) cases have you advised clients on?
- How many administrative separation hearings have you been counsel in?
- How many Article 32 hearings have you been part of?
- Have you ever served as an Article 32 investigating officer / preliminary hearing officer?
- How long did you serve / have you served on active duty?
- How may courts-martial have you tried?
- How many litigated courts-martial have you tried in front of members as first chair?
- What types of court-martial training have you attended or taught?
- How do you keep up with current law related to the UCMJ?
- How many Article 15 cases / nonjudicial punishment (NJP) cases have you advised clients on?
- How many administrative separation hearings have you been counsel in?
- How many Article 32 hearings have you been part of?
- Have you ever served as an Article 32 investigating officer / preliminary hearing officer?
Final Thoughts
A military justice action is potentially the most serious thing a military member will undergo. Having the advice of wise counsel is of enormous importance. Contact us for a free and confidential consultation. Garrett Condon will speak to you personally.
