Military Justice 101

Major Shawn McKelvy

E-mail address:
shawn.mckelvy@luke.af.mil
 Overview
 Structure
 Military Jurisdiction
 Our Law
 Military Specific Offenses
 Types of Courts-Martial
 Rights of the Accused
 US Supreme Court

Court of
Appeals for
the Armed
Forces

Air Force Army Navy-Marine Coast

Court of Court of Corps Court Guard Court
Criminal Criminal of Criminal of Criminal
Appeals Appeals Appeals Appeals

Trial level courtrooms at bases

around the world
 Jurisdiction
 Military has jurisdiction over all military members
anywhere in the world (24/7/365)
 Requisites:
 Convened by official empowered to convene it
 Composed according to rules
 Each charge referred by competent authority
 Accused person subject to UCMJ
 Art 2(a)(10) amended to include civilians accompanying the
forces during declared war or contingency operation
 Exclusive v. Nonexclusive
 Our Law
 Uniform Code of Military Justice
 DoD Regulations & Air Force Instructions
 Military Rules of Evidence
 Rules for Courts-Martial
 Uniform Rules of Practice Before AF Courts-
Martial
 Most Common Offenses
 Drug use and possession
 Child pornography
 Rape/ sexual assault (involving alcohol)
 Others:
 Assault
 Drunk Driving
 False Official Statement
 Dereliction of Duty
 Military Specific Offenses
 Sodomy
 Conduct Unbecoming an Officer and Gentleman
(includes male & female commissioned
officers/cadets/midshipmen)
 Fraudulent Enlistment
 AWOL Offenses
 Offenses Towards Superiors
 Failure to Obey; Dereliction of Duty
 Misbehavior Towards the Enemy
 Drunk on Duty
 Straggling; Malingering; Dueling (still on the books)
 What happens when someone in
the military gets in trouble?
 Bottom line = Commanders, not lawyers,
make the final decisions
 Caveat = they usually take our advice
 Commanders’ Tools
 Purely administrative actions (LOC/LOA/LOR)
 Non-Judicial Punishment, a.k.a. Art 15 – Not an
admission of Guilt by Member, but rather acceptance
of forum with punishment options such as restriction
to base, extra duty, forfeitures, reduction in grade
 Court-Martial
 Court-Martial Types
 Summary Court-Martial
 Cap: 30 days confinement, 2/3 forfeiture of pay

for 1 month, and reduction to E-1

 Special Court-Martial (Think Misdemeanors)

 Cap: 1 year confinement, BCD, 2/3 forfeitures

 General Court-Martial (Think Felonies)

 Cap: death, dismissal or dishonorable discharge,

total forfeitures, reduction to E-1

 Unlawful Command Influence
 UCI = “The mortal enemy of military justice”
 CCs may not “attempt to coerce or, by any
unauthorized means, influence the action of a
court-martial.” Art 37, UCMJ
 KEY ISSUE: What is proper involvement & what
crosses the line?
 Examples:
 Selecting Court Members
 Remarks by Senior Commander that may
improperly influence court members
 Commander comments that may improperly deter
potential defense witnesses from testifying
 Accused’s Rights

The Military Justice System

as prescribed by the Constitution of the United States
and the Uniform Code of Military Justice (UCMJ)

vs.

The Federal Civilian Criminal System

as prescribed by the Constitution of the United States
and the U.S. Code
 Suspect Interrogation
Federal
Miranda Rights –
Applies only to “Custodial” interrogation

Military
Article 31 Rights –
Applies whenever member is a “suspect,” not just when in
custody
 Disciplinary Options
Federal
 Prosecute in Federal District Court – felonies
 Prosecute in Magistrate’s Court – misdemeanors
 No “lesser” options

Military
 Administrative Measures
Promotion Action
Discharge Action
Demotion Action
LoR, LoC, LoA, UIF
 Article 15
 Prosecute at SCM, SPCM or GCM
 Pre-Trial Examination
Federal Military
Grand Jury Article 32 Investigation
• Secret Proceedings • Open proceedings

• Defendant usually not • Accused present

present • Defense Counsel Present
• Defense counsel not in
• Right to cross-examine
grand jury room
witnesses
• No right to cross-
• Public record - accused gets
examine witnesses
copy immediately
• Indictment often sealed
• Defense witnesses,
• No defense witnesses
including experts, paid by
government
Pre-Trial Confinement
Federal
Recognizance, or
Bail at defendant’s
own expense

Military
Strict rules for
pretrial confinement –
rarely used
 Legal Representation

Federal Military
• Defendant pays unless • Free ADC and/or Senior
indigent Defense Counsel
• If indigent- • Criminal defense
• public defender’s office specialists
• not unusual for • Active representation
defendant not to meet begins much earlier in
attorney until just process, usually
before trial immediately after
charges are preferred
• Representation continues
post-trial
 The Jury
Federal
 Randomly selected “jury of
peers” chosen from entire
community
• tend to be over-
represented by less
educated citizenry
 Multiple preemptory defense
challenges
 Unlimited challenges for
cause
Military
 Convening Authority selects panel
 Article 25 criteria: age, education,
training, experience, length of
service, and judicial temperament
 court panel almost always
much more highly educated
than civilian juries
 One preemptory challenge
 Unlimited challenges for cause
 Accused chooses Military Judge or
Members
 Also, officer v. enlisted
 What would you choose?
Why?
 Witness Costs

Federal
At the Defendant’s
expense; unless
indigent

Military
The Military pays
 The Verdict
Federal
• Unanimous to convict or acquit
• Re-trial at prosecutor’s option
if “hung jury”
• New evidence may be

presented to secure
conviction
Military
• Normally 2/3 majority to
convict
• Less than 2/3 majority
acquits
• No “hung juries,” no re-
trials
 The Sentence
 Sentenced by trier of fact
 NO sentencing guidelines
 The Good Military Character Defense
 The unsworn statement = the defense counsel’s
best friend and the prosecutor’s worst enemy
 The Appeal
Federal
 No automatic appeals
except death penalty cases
 Only one appellate level in
most cases
 Almost always requires
defendant to hire appellate
specialist(s)
Military
 Automatic review by
convening authority
 Additional review by two
appellate courts (one
military, one civilian) in
most serious cases
 Accused provided free
appellate specialists
 You be the Judge
Fairness Report Card
Civ MJ
By any objective Suspect Rights X
Disciplinary Options X
evaluation, military Pretrial Investigation X
justice system is as fair Notif of Charges X
or fairer than its civilian Pretrial Release X
Legal Representation X
counterpart Trial Procedure
Evidentiary Rules
Jury
Witness Costs X
Verdict
Transcript X
Appeals X
Questions?