When a soldier commits a crime under military law, his or her commander is responsible for deciding what action to take to punish or correct the soldier. One purpose of military justice is to aid the commander in the maintenance of good order and discipline by providing sanctions for violations of military law. Another purpose is to implement policies designed to prevent breaches of discipline.
Offenses may be disposed of at three levels. At the highest level there are courts-martial. Courts-martial hear evidence, determine facts, and impose punishment within their jurisdictional limits for offenses against the UCMJ.
At a lower level is the Article 15. This is a less formal, nonjudicial procedure authorized by Article 15 of the UCMJ. Commanders use this disciplinary punishment for minor offenses.
The third level of disposition is administrative action, such as informal counseling. Administrative measures may be taken in addition to disciplinary punishment by court-martial or under Article 15, or in place of disciplinary punishment. Although this is often considered the lowest level of disposition, some forms of administrative disposition, such as administrative separation from the service, have more serious consequences for the soldier than Article 15 proceedings and some forms of court martial.
Factors Governing the Selection of an Option.
Generally, offenses should be disposed of at the lowest level at which an appropriate punishment or other action may be imposed. In selecting an option, the commander should consider the following factors:
- The Offense. The commander should consider the seriousness of the offense. The commander may examine the motive for the offense, the threat, if any, posed to the lives and safety of innocent persons, and the nature and extent of any injury to persons or property.
- The Offender. The commander should consider the age and emotional maturity of the soldier who committed the offense. The commander should also consider the length and nature of the soldier’s past service, the soldier’s criminal record, if any, and the soldier’s rehabilitative potential. The commander should consider the probable effect of his or her decision on the command and the military community. The commander should examine the disposition of similar offenses in the past and general disciplinary trends within the command.
A commander may dispose of an offense by trial by court-martial. This disposition is usually reserved for serious offenses warranting a greater amount of punishment than would be authorized at Article 15 proceedings. The commander who orders an offense to be tried by court-martial is called a convening authority. The power to convene courts-martial is generally reserved to battalion level and higher commanders.
Types of Courts.
The Uniform Code of Military Justice provides for three types of courts-martial: summary, special and general courts-martial. These courts differ in the amount of punishment which may be imposed and the level of commander who may convene them.
Summary court-martial. A summary court-martial is a one officer court designed to handle minor offenses. It is normally convened by a battalion commander and has a simplified procedure. Any commissioned officer on active duty may be designated to be a summary court officer. As a general rule, age, education, training, experience, length of service, and judicial temperament are considered in selecting an officer to sit as a summary court officer. An enlisted soldier or witness cannot be the summary court officer.
In a summary court-martial, the summary court officer acts as the judge. The summary court officer hears the evidence and any defenses and then renders a finding in the case. If the finding is “guilty,” the summary court officer imposes a sentence.
Only enlisted soldiers may be tried by summary court-martial; officers, warrant officers, cadets and midshipmen, may not be tried by summary court-martial. Additionally no offense for which the death penalty may be imposed may be tried by this form of court. No person may be tried by a summary court-martial over his or her objection. If the accused objects to trial by summary court martial, the trial may not proceed. However, trial may be ordered by special or general court-martial, as appropriate.
A summary court-martial may not adjudge a punitive discharge, forfeiture in excess of two-thirds of one month’s basic pay, confinement for a period in excess of 30 days, hard labor without confinement in excess of 45 days, or restriction for a period exceeding 60 days. Soldiers in the grade of E-5 and above may not be given confinement or hard labor without confinement by a summary court-martial; and may not be reduced by more than one grade.
Special court-martial. If an offense is too serious to be tried by summary court-martial, trial by special court martial may be appropriate. The special court-martial is an intermediate court which normally is convened by a brigade or equivalent commander. Under current practice, a military judge is always detailed to a special court-martial. The accused also has the right to trial by members (the military equivalent of a jury trial) at a special court-martial. The accused may request that enlisted persons be detailed as members, in which case, at least one-third of the members will be enlisted personnel. An accused who desires to be tried by a military judge must submit a written request for trial by military judge alone or announce the request orally on the record. In such cases the military judge rules on all questions of law, as he or she does in a trial with members and decides the guilt or innocence of the accused. If the accused is found guilty in a trial before military judge alone, the military judge imposes the sentence. If the accused is found guilty by members, the members impose the sentence.
In a special court-martial, as well as in a general court martial, the accused has the right to be represented by a civilian counsel at no expense to the government and by military counsel at no expense to the accused. Article 27 of the UCMJ requires that the accused’s military counsel be a qualified, competent attorney unless such counsel can not be obtained, due to military exigencies. The accused’s military counsel may be detailed to the accused or may be a military attorney of the accused’s own selection, if reasonably available. The accused has no right to be represented by more than one military counsel.
A special court-martial may try any person subject to the Code for any offense, except those offenses for which the death penalty may be imposed. A special court-martial is empowered to adjudge forfeitures of two-thirds basic pay per month for six months, confinement for a period of six months, hard labor without confinement for a period of three months, or restriction for a period of 60 days. It may adjudge a bad conduct discharge when convened by a general court-martial convening authority. In this case, this type of court is commonly referred to as a “BCD special court-martial.”
General court-martial. The third type of court-martial to which a commander can refer a case is the general court martial. This is the highest trial court in the military and it normally is convened by the general officer in command of an installation or division or larger unit. Capital and serious noncapital offenses are tried in general courts-martial. When an offense is serious enough to be tried in a general court-martial, a formal pretrial investigation must be conducted before the offense may be referred to such a court-martial. A general court-martial will consist of a military judge and not less than five members or, if the accused requests it, a military judge alone. Under Article 27, UCMJ, legally qualified trial and defense attorneys must be detailed. As at a special court martial, the accused has the right to be represented by a military attorney of his or her own selection, if reasonably available, or by a civilian attorney at no expense to the government. Military counsel is furnished at no cost to the accused.
A general court-martial may try any person subject to the Code for any offense under the UCMJ. It may adjudge any punishment authorized by the UCMJ, including death and all forms of punitive discharges.
Appeals procedures. Army courts-martial are reviewed at several levels. General courts-martial receive the most reviews, including reviews by the convening authority, the Army Court of Military Review, the U.S. Court of Military Appeals and The Judge Advocate General of the Army. In addition, the Supreme Court may review Court of Military Appeals decisions.
PROCEEDINGS UNDER ARTICLE 15
A commander may dispose of minor offenses under the provisions of Article 15, UCMJ. Article 15 provides that any commissioned officer, warrant officer, or enlisted person may be subject to nonjudicial punishment if he or she has committed an offense which constitutes a crime under the Uniform Code of Military Justice. Article 15 punishment is used by the commander to correct, educate and reform offenders who have shown that they cannot benefit by less stringent methods. As a general rule only minor offenses are punished by Article 15. The term “minor” ordinarily does not include misconduct for which the MCM sets forth a maximum sentence which includes a dishonorable discharge or confinement for more than one year.
Before beginning Article 15 proceedings, the commander must conduct a preliminary inquiry to determine if the alleged misconduct was committed by the accused and that the misconduct was an offense under the Uniform Code of Military Justice. The commander also must decide if imposition of Article 15 punishment is appropriate in view of the circumstances surrounding the offense and the personal history of the offender.
Types of Article 15 Proceedings.
The commander can use summarized proceedings if the offender is enlisted and the punishment will not exceed 14 days restriction, 14 days extra duty, an oral reprimand, oral admonition, or any combination of these sanctions. If the commander determines that summarized proceedings are appropriate, the commander will notify the soldier of the maximum punishment under summarized proceedings; the offenses allegedly committed and the article(s) of the UCMJ violated; the right to remain silent; the right to demand trial by court-martial; the right to call witnesses, examine evidence and submit matters in defense, extenuation and mitigation; and the right to appeal. The commander may delegate this notification requirement to a soldier in the grade of E-7 or higher. The soldier will be given an opportunity to accept summarized proceedings or request a reasonable time (normally 24 hours) to decide whether to demand trial and to gather matters in defense, extenuation, and/or mitigation. A DA Form 2627-1 is used to record summarized proceedings.
If the commander determines that punishment may exceed that authorized during summarized proceedings, he or she may use formal Article 15 proceedings. Formal Article 15 proceedings are recorded on a DA Form 2627; the commander must advise the soldier of the right to demand trial by court-martial, of the right to remain silent, and of the right to consult with counsel concerning the Article 15. The commander must inform the soldier of the location of counsel and give the soldier time to visit with the lawyer to discuss the Article 15. In addition, the commander must advise the soldier of the opportunity to present any defenses and matters in extenuation and mitigation, the right to have a spokesperson present during the Article 15 proceeding and the right to request the proceedings be opened or closed. The commander must inform the soldier of the maximum punishment that can be imposed under Article 15 and, upon request, the maximum punishment that a court-martial could adjudge for the same offense. The commander may delegate these notification requirements to a soldier in the grade of E-7 or above.
After considering the evidence, the commander must determine whether the accused committed the offense. If the commander is not satisfied beyond a reasonable doubt that the accused committed an offense under the UCMJ, the commander must dismiss the proceedings. Consent to accept proceedings pursuant to Article 15 are not an admission of guilt; the soldier may still assert that he or she is innocent.
Disposing of offenses under Article 15 has a number of advantages. First, the offender benefits because there is no trial by court-martial which may result in a federal conviction. Since an Article 15 is not a federal conviction, the use of Article 15 punishment preserves an offender’s record from unnecessary stigma by record of court-martial conviction. Second, Article 15 punishment furthers efficiency because it requires less paper work for the commander and fewer personnel than would be involved in a trial by court-martial. The third advantage of Article 15 punishment is that punishment can be imposed soon after the offense has been committed. Courts martial, on the other hand, often take several months to complete. For these reasons commanders are encouraged to proceed under Article 15 whenever the nature of the offense makes such disposition appropriate.
Article 15 Punishments.
At summarized proceedings, punishment is limited to 14 days restriction, 14 days extra duty, an oral admonition, an oral reprimand, or a combination of these punishments. At formal proceedings the severity of the punishment imposed varies according to the grade of the commander administering it and the grade of the accused. A field grade commander may impose greater punishment than a company grade commander.
A company grade commander who discovers misconduct which warrants punishment greater than that which he or she can impose, may forward the case to the field grade commander and request that the field grade commander initiate the proceedings under Article 15. The company grade officer will not make a recommendation of the nature or extent of the punishment to be imposed. The field grade commander may initiate the proceedings or may return the case to the company grade commander for disposition at that level. In no case can a superior direct that a subordinate commander take action under Article 15, nor can the superior dictate to a subordinate the type or quantity of punishment to be administered under Article 15.
Permissible punishments include restriction, extra duties, correctional custody, forfeiture of pay, and reduction in grade. Company grade commanders may impose restriction or extra duties of up to 14 days and forfeiture of 7 days pay. Company grade commanders also may impose up to 7 days correctional custody on soldiers in the grade of E-3 or below, subject to the limitations of a superior commander and the presence of an adequate confinement facility. A company grade commander may also reduce soldiers in the grade of E-4 and below one grade.
Field grade commanders may impose restriction for up to 60 days or extra duty for up to 45 days. They may also impose forfeiture of one-half of one month’s pay for two months. Field grade commanders may reduce enlisted personnel in the grade of E-5 and E-6 one grade if they have the authority to promote to E-5 and E6. Field grade commanders may also reduce personnel in the grade of E-4 and below one or more grades. The commander imposing Article 15 punishment should personally announce to the offender the punishment to be imposed. The commander’s personal communication of the punishment to the accused is an important factor in making the Article 15 an effective means of discipline.
Once punishment is announced, the commander is required to advise the offender of the right to appeal the punishment and procedures to be followed in submitting an appeal. All punishments imposed under Article 15 are effective at the time of imposition. The soldier’s right to appeal does not conflict with consent to accept Article 15 punishment; the consent is merely a waiver of the right to demand trial by court-martial and not an admission of guilt. The appeal is made through the officer imposing punishment to the next superior commander. After considering oral or written statements from the accused and witnesses, the next superior commander can reduce or approve, but cannot increase, the punishment imposed.
The commander imposing punishment and the appeal authority may suspend, remit, mitigate, or set aside the punishment if they conclude that the action is warranted by the circumstances of the case. The availability of these powers gives commanders an effective means of rehabilitating an offender.
A commander would be guilty of poor leadership if he or she disposed of all offenses by court-martial or under Article 15. Such a command practice would harm both the armed forces and the soldier. It would deal too harshly with young, first offenders that have a potential for rehabilitation. The commander should be aware that there are many administrative methods of disposing of offenses other than the referral of court-martial charges or use of Article 15 proceedings. A nonexhaustive list of some of the more common administrative methods of disposing of misconduct is given below.
Admonitions and Reprimands. The commander has extensive administrative, nonpunitive powers, including the power to admonish or reprimand a soldier. Admonitions and reprimands are forms of censure intended to criticize the soldier’s conduct. An administrative admonition or reprimand may be oral or in writing. If an administrative admonition or reprimand is in writing, the soldier’s commander may decide to file it in the soldier’s local personnel files (Military Personnel Records Jacket). If the misconduct leading to the administrative admonition or reprimand is serious enough, a general officer may order it filed in the soldier’s permanent personnel files (Official Military Personnel File). An administrative admonition or reprimand is designed to correct a soldier’s performance and, unlike an admonition or reprimand issued during Article 15 proceedings, is not punitive.
Counseling. Like an administrative admonition or reprimand, counseling is designed to criticize and correct a soldier when he or she has engaged in misconduct. However, counseling is also used to praise a soldier’s conduct when he or she performs well. Counseling is one of a leader’s primary tools to motivate and guide his or her soldiers. Counseling may be oral or written. When a counseling session is recorded in writing a DA Form 4856, General Counseling Form, is usually used.
Withholding Privileges. A commander may also withhold privileges, such as the privilege to take a pass, if a soldier engages in misconduct. A commander must act reasonably when withholding privileges; he or she may not arbitrarily deny a soldier privileges routinely afforded other soldiers.
Extra Training. A commander may direct a soldier to perform extra training if he or she engages in misconduct which indicates a training deficiency. However, the extra training must be tailored to address the deficiency; it may not be used as punishment. For example, if a soldier reports late to a formation, his or her commander could require the soldier to report 15 minutes early to the next several formations or require the soldier to conduct classes on the importance of reporting on time. However, the commander could not require the soldier to clean the barracks after duty hours to punish him or her for reporting late. Such punishment would be extra duties, which can only be imposed during Article 15 or court-martial proceedings.
Administrative Separations. If a soldier commits misconduct, his or her commander may initiate a proceeding to administratively discharge the soldier. The resulting discharge can be an honorable discharge, a general discharge (also called a discharge under honorable conditions), or a discharge under other than honorable conditions. In some situations, the soldier is entitled to an administrative board to determine whether a discharge is appropriate. For example, if the soldier has six or more years of active and reserve service, he or she has the right to a board. The procedures for separation actions are discussed in Army Regulation 635-200, Personnel Separations, and Enlisted Personnel (5 July 1984).
Magistrate Court. In addition to their other duties, United States Magistrate Judges often try minor offenses such as traffic offenses, committed on military reservations. The post commander may permit certain minor offenses, committed on post, to be referred to the United States Magistrate.
RIGHT AGAINST SELF-INCRIMINATION
The Fifth Amendment to the Constitution of the United States provides that no person shall be compelled to be a witness against himself in a criminal case. This provision guarantees that no person can be forced to give testimony against himself or herself at trial or to make a statement that may be used against him or her in a criminal trial. This guarantee is also provided by Article 31 of the UCMJ.
Advising Accused of the Right Against Self-Incrimination.
Article 31 forbids any person subject to the UCMJ from interrogating or seeking a statement from persons suspected of an offense without first informing them of the nature of the offense of which they are suspected. Furthermore, suspects must be advised that they are not required to make any statement and that any statements, if made, may be used as evidence against them in a trial by court-martial. If a suspect indicates he or she wishes to remain silent, any statement obtained from him or her by continued interrogation is inadmissible at trial. However, a suspect may waive his or her rights as long as the waiver is voluntary. The warning requirements of Article 31 apply whenever military personnel question a suspect in an official capacity. For example, if a unit first sergeant suspects a soldier of being absent without leave and questions the soldier to investigate the offense, rights warnings would be required. Prior to any interrogation, rights warnings must be given, even if the suspect is fully aware of them. A statement from suspect obtained in violation of warning requirements is inadmissible against the suspect. Rights warnings can be given by reading from a rights warning card,
Another important issue is the voluntariness of a statement made by a suspect. To be admissible at a court-martial, a confession (an acknowledgment of guilt) or an admission (an incriminating statement falling short of a confession) must be voluntary. If it was obtained through the use of coercion, unlawful influence, or unlawful inducement, it is not voluntary. Some instances of such coercion, unlawful influence, and unlawful inducement include:
- Infliction of bodily harm, or threats of harm. This includes withholding necessities such as food, sleep, or adequate clothing during questioning.
- Promises of immunity or clemency as to any offense allegedly committed by the suspect, or other promises of reward or benefit likely to convince the suspect to make a confession or admission.
After the warnings concerning the rights to remain silent and to consult counsel are given, a suspect can waive, or give up, these rights. In order for any statement to be admissible however, this waiver must have been voluntary, knowing, and intelligent. A statement obtained from a suspect who has waived his or her rights may be inadmissible if the interrogation was preceded by one which was not properly conducted. However, if the first statement was inadmissible only because of a technical failure to properly advise the suspect of his or her rights, subsequent proper warnings may cure the initial failure and allow for the admissibility of a later statement.
PROTECTION AGAINST ILLEGAL SEARCHES AND SEIZURES
Another basic freedom which soldiers enjoy is the protection against unreasonable searches and seizures. This protection is found in the Fourth Amendment to our Constitution, which prohibits unreasonable searches and seizures and requires most searches and seizures to be based on probable cause and a proper warrant or authorization.
Criminal Searches. A search to find evidence of a crime is lawful only if the requirements of the Fourth Amendment are met. Generally, this means that the search must be based on probable cause and a warrant or authorization.
Search Based on Probable Cause and a Warrant or Authorization. Law enforcement officials may lawfully search a suspect’s property if they have probable cause and a search warrant or authorization.
- Probable Cause. Probable cause is a reasonable belief that items related to criminal activity are in the place or on the person to be searched. An authorizing official must weigh the facts presented and determine for himself or herself that reasonable belief is present. To do this, the authorizing official must be presented with facts which are believable, rather than mere conclusions, rumor, and gossip. The authorizing official may, however, rely on hearsay information (information provided by others). In evaluating hearsay the authorizing official should consider the reliability of the person providing the information as well as the reliability of the information itself. The information presented must give rise to a reasonable belief that particular items related to criminal activity are in a particular place. General exploratory searches, or “fishing expeditions,” are not permitted. A reasonable belief is more than mere hunch or speculation, but it is less than absolute certainty.
- Search Warrant or Authorization. A search warrant is a permit to search issued by a civilian judge or magistrate. The search must be limited to the place described in the warrant. The military equivalent of a search warrant is a search authorization, which may be issued by a commanding officer, military judge, or military magistrate. A search authorization may be either written or oral. Like a civilian warrant, the search authorization must describe the person or place to be searched, and the objects sought. The authority of a commander to authorize probable cause searches of the persons and property under his or her control is a power unique to the position of command. The commander must personally exercise the power. It may not be delegated. When the commander is absent, however, command and the power to authorize searches will devolve to a subordinate in the chain of command (the acting commander).
Exceptions to the Probable Cause and Warrant or Authorization Requirements.
- Search Incident to Lawful Apprehension. If a suspect is lawfully apprehended, the suspect and the area within the suspect’s reach may be searched, even though there is no probable cause or search warrant or authorization. An apprehension is lawful if there is probable cause to believe that an offense has been committed and that the person apprehended committed it. A search incident to an apprehension is designed to protect the apprehending official and prevent the destruction of evidence. When an individual is apprehended in an automobile, the entire passenger compartment of the car may be lawfully searched.
- Consent Search. A search without probable cause, a warrant or authorization is lawful if a suspect voluntarily consents to it. The consent is not voluntary if it was obtained by duress, or if the suspect believes he or she must consent.
- Exigent Circumstances. A search without a warrant or authorization is legal where there is probable cause to believe that evidence of a crime is in a specific place and that if time were taken to obtain a warrant or authorization, the items would be removed or destroyed. For example, if a supervisor smells marijuana coming from a soldier’s barracks room, he or she may enter the room without a warrant. This exception has also frequently been applied to searches of motor vehicles.
Administrative Inspections. When the purpose of an examination is administrative, rather than to secure evidence of a crime, the examination may qualify as an administrative inspection.
- Inspections. A commander may inspect all or part of his or her unit if the primary purpose of the inspection is to determine fitness, military security, or good order and discipline. During an inspection, a commander may use any reasonable means or aids which assist in determining the status of the unit. For example, a drug detection dog may be used when the commander is seeking dangerous drugs that have an adverse affect on the unit. An inspection may be no more intrusive than reasonably necessary to determine the fitness, security, or good order and discipline of the unit. Items relating to criminal activity that are discovered during the course of a lawful inspection may be seized and used as evidence in a criminal proceeding. An inspection may not be used as a subterfuge to avoid the restrictions applicable to a search for evidence of a crime. When an “inspection” appears to have been used to secure evidence of crime to use against certain individuals, the commander’s purpose for conducting the “inspection” will be closely scrutinized. If the primary purpose is to discover evidence of a crime, rather than to determine fitness, military security or good order and discipline, the search may not be justified as an inspection.
- Gate Inspections. The commanding officer of an installation may conduct reasonable inspections at the entries and exits to the installation. The primary purpose of such inspections must be fitness, military security, or good order and discipline of the installation. Gate inspections are usually conducted at the direction of the installation commander, who specifies precisely when and where to inspect, which vehicles to stop, what to inspect, and what to do if evidence of criminal activity is discovered.
- Inventories. An inventory of property is an administrative search conducted to account for property. For example, when a soldier is absent without leave, the soldier’s personal property is inventoried and secured to protect against loss or theft. If evidence of a crime is discovered during the course of a lawful inventory, that evidence may be seized and later used in a criminal proceeding. Most inventories are conducted pursuant to regulation or a written SOP.
Items Which May Be Seized. During a criminal search or administrative inspection, any of the following items may be seized:
- Evidence of Crime. Incident to a lawful search or inspection, evidence of a crime may be seized and used in evidence. Examples are the property which is stolen in a larceny case, the tools used to commit the larceny, or anything which might tend to prove an accused’s guilt.
- Contraband. Contraband is property which, because of its nature, is illegal to possess and may be seized incident to a lawful search or inspection and used in evidence. Illegal narcotics are an example of contraband.
Commanders and leaders play an important role in the initiation of courts-martial. Commanders conduct preliminary inquiries which may lead to court-martial charges. Commanders are often involved in the preferral of charges, the formal act by which court-martial charges are initiated. Commanders also are involved in the referral of charges, the formal act by which a commander orders that charges be tried by court-martial. This lesson will discuss what a commander should know about the procedures for initiating court-martial charges and referring them to trial, to include the related procedures for investigating charges and determining whether an accused soldier should be confined or placed under restraint pending trial.
As noted above, upon the receipt of information that an offense against the UCMJ has been committed, the commander must make, or cause to be made, a preliminary inquiry to determine if charges are warranted. This inquiry is usually informal. It need not be conducted personally by the commander, as the commander may prefer charges based on reliable information received from others. The previous section of this course examined possible evidentiary problems which may occur in this inquiry.
The commander must pursue his or her own inquiry independent of any CID or MP investigation, although he or she can and should make use of any of the information made available by the investigative agencies. Although the CID or Military Police Investigators may delay issuing a final report of investigation, the commander need not wait for this report to take action.
Conduct of the Inquiry.
In conducting an inquiry, the commander should do the following:
- Make a sufficiently detailed inquiry to establish the nature of any offense, the time and place of its commission, the identity of the accused, any claimed defenses and any apparent motives.
- Record the names and addresses of witnesses, if any.
- After questioning the witnesses, prepare summaries of their expected testimony and, if reasonably possible, have them signed and sworn to.
- Determine the probable availability of each witness at the expected time of trial and take the necessary action to ensure their presence at trial. For example, essential witnesses may need to be placed on administrative hold.
- Obtain, mark, and retain for safekeeping any physical objects involved in the offense.
- Interrogate the accused after advising him or her of his or her rights under Article 31, UCMJ, and the Fifth Amendment, using DA Form 3881, Rights Warning/Waiver Certificate. Coordinate with CID or the Military Police prior to questioning a suspect in a case where law enforcement agencies are also conducting an investigation. In most cases, the commander will not question the suspect if CID or the military police are involved. If the accused desires to make a statement, reduce any oral statement to writing, and, if possible, obtain the accused’s signature. If, during the course of interrogation, the accused requests to consult with a judge advocate or to obtain civilian counsel, allow the accused to do so.
- Study the available civilian and military records of the accused.
- Determine whether any restraint is necessary. Any restraint imposed must be noted in the space provided on the Charge Sheet (DD Form 458).
The commander may consider policies of superior commanders. However, the commander must exercise independent discretion. If such policies appear to be mandatory and improperly influence the commander’s independent decision in disposing of charges, these policies are unlawful command influence.
PREFERRAL OF CHARGES
A military organization is usually supported by a staff judge advocate (SJA) office. This office provides attorneys who advise commanders, in addition to providing counsel for individual soldiers. A trial counsel in the SJA office will normally advise a commander throughout the preliminary investigation, preferral of charges, and processing a court-martial. Military officers, however, must understand the basic procedures of the military justice system and must be able to discharge their responsibilities without total reliance on the advice from the legal office.
Determining Which Charges Are Appropriate.
When a commander decides that trial by court-martial is appropriate, charges and specifications should be drafted. These are placed on a DD Form 458, Charge Sheet. The charge indicates the article of the Code allegedly violated. The specification sets forth the specific facts constituting the violation. Charges must be drafted carefully to ensure that they are correct. Charges may not be accumulated to obtain greater punishment. Additionally, what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges. To determine which charges are appropriate, a commander should:
- Refer to the Manual for Courts-Martial (MCM) to determine which article of the UCMJ was violated and read it carefully. Study the discussion of the offense that appears in part IV of the MCM, including the elements of proof.
- If one or more of the elements of proof listed in the MCM are not present, determine which, if any, lesser included or closely related offense may have been committed.
Drafting Charges and Specifications.
Usually the trial counsel supporting the command or a legal specialist working with him or her will actually draft the charges and specifications. In the unusual event that a commander drafts charges, he or she should ask the trial counsel to examine and approve the draft. No attempt should be made to formulate charges and specifications without such advice unless absolutely necessary. The following instructions for preparing charges and specifications are described generally in Rule for Courts-Martial 307, found in part II of the MCM. Commanders should be familiar with these rules when reviewing charges drafted by the trial counsel.
- Use of Form Specifications. These forms, contained in part IV of the MCM, are used to draft charges and specifications regardless of whether the offense is distinctly set forth in the UCMJ or the Manual. The suggested forms do not exclude other methods of alleging the same offenses. However, the appropriate form specification listed with a punitive article, when properly completed, is sufficient for alleging that offense. Except to fill in blanks with the information required, such a form should not ordinarily be modified.
- Abbreviations. Dates and times should be written in Arabic numerals, and the designation of organization or command may include Roman or Arabic numerals and the abbreviations “U.S.” and “U.S.S.” Otherwise, abbreviations should not be used in specifications.
- Numbering of Charges and Specifications. When there is more than one charge, the charges should be numbered, using Roman numerals (I, II, etc.). When there is more than one specification under a charge, the specifications under that charge should be numbered using Arabic numerals (1, 2, etc.). Additional charges are numbered in the same manner as the original charge; a single added charge is designated simply “Additional Charge,” but if there is more than one, they are numbered Additional Charge I, Additional Charge II, etc. Specifications under additional charges are designated as described above. The term “Additional” is not used in connection with the specifications.
- Name and Description of the Accused. The specification should state the accused’s full first name, middle name or initial, and last name. The specification should state the accused’s rank or grade, service branch of the Armed Forces, and unit or organization. The social security number or service number of an accused should not be stated in the specification. The words “on active duty” may be added immediately after the description of the accused if necessary to describe the basis of jurisdiction.
- Time and Place of Offense. The date of the commission of the offense is stated with sufficient precision to identify the offense and enable the accused to understand what to defend against. It is generally proper to allege the date as “on or about” a specified day. The exact hour of the offense is ordinarily not alleged except in certain absence offenses such as failure to repair under Article 86. When the exact time is alleged, the 24-hour clock is used. The use of “at or about” is generally proper. When the acts specified extend over a considerable period of time, it is proper to allege them as having occurred “from about 15 June 1993 to about 4 November 1993,” or “on divers occasions between 15 June 1993 and 4 November 1993.” The place of the commission of the offense charged is stated with sufficient precision to identify the offense and enable the accused to understand what to defend against. In alleging the place of the offense, it is generally proper to allege it as “at or near” a certain place.
- Description of offense. The elements of the offense must be alleged, either expressly or by necessary implication. If a specific intent, knowledge, or state of mind is an element of the offense, it must be alleged. If the alleged act is not itself an offense but is made an offense either by applicable statute (including articles 133 and 134, UCMJ), or regulation or custom having the effect of law, then words indicating criminality such as “wrongfully,” “unlawfully,” or “without authority” should be used to describe the accused’s acts. The specification should be sufficiently specific to inform the accused of the conduct charged, to enable the accused to prepare a defense, and to protect the accused against double jeopardy. Generally only those facts that make the accused’s conduct criminal are alleged; specific evidence supporting the allegations ordinarily is not included in the specification.
Other considerations in drafting specifications.
- Principals. Principals are soldiers who aid or encourage another to commit an offense. A principal is charged as if he or she actually committed the offense.
- Victim. In the case of an offense involving a victim, the first name, middle initial and last name of the victim should be alleged. If the name of the victim is unknown, he or she may be described as “a person whose name is unknown. n Military rank or grade should be alleged, and must be alleged if it is an element of the offense, as in an allegation of disobedience of the command of a superior officer.
- Property. In describing property, generic terms should be used, such as “a watch” or “a knife,” and descriptive details such as make, model, color, and serial number should ordinarily be omitted. In some instances, however, details may be essential to the offense, so they must be alleged. For example: the length of a knife blade may be important when alleging a violation of a general regulation prohibiting carrying a knife with a blade that exceeds a certain length.
- Value. When the value of property determines the maximum punishment which may be adjudged for an offense, the value should be alleged. If several articles of different kinds are the subject of the offense, the value of each article should be stated followed by a statement of the aggregate value. Exact value should be stated, if known. For ease of proof a specification may allege “a value not less than $100.00.” If only an approximate value is known, the specification may allege value of about ___________.” If the value of an item is unknown but obviously minimal, the term “of some value” may be used.
- Documents. When checks or similar documents must be alleged (for example, in bad check offenses in violation of Article 123a), the documents may be set forth verbatim (including photocopies and similar reproductions) or may be described, in which case the description must be sufficient to inform the accused of the offense charged.
- Matters in aggravation. Aggravating circumstances which increase the maximum authorized punishment must be alleged in order to permit the possible increased punishment. Other matters in aggravation ordinarily should not be alleged in the specification.
Sample Charges. The following are sample charges:
Charge I: Violation of the UCMJ, Article 85.
Specification: In that Private (E-1) Richard Roe, U.S. Army, Company A, 2d Infantry, Fort Jay, New York, did, on or about 6 June 1993, without authority and with intent to remain away therefrom permanently, absent himself from his organization, to wit: Company A, 2d Infantry, Fort Jay, New York, and did remain so absent in desertion until he was apprehended on or about 4 November 1993.
Charge II: Violation of the UCMJ, Article 112a.
Specification: In that Private (E-1) Richard Roe, U.S. Army, Company A, 2d Infantry, Fort Jay, New York, did, at Fort Jay, New York, on or about 24 October 1993, wrongfully possess 10 grams, more or less, of marijuana.
Preferral of Charges.
Once charges and specifications are properly drafted, charges may be preferred. This is the formal act by which court-martial charges are initiated. It occurs when a person subject to the UCMJ signs the charges under oath, stating that he or she has knowledge of or has investigated the charges and believes them to be true. This is done by signing block 11 of DD Form 458, Charge Sheet. The person who signs the charges is known as the accuser. The accuser can be any person subject to the UCMJ, although it is usually the accused’s immediate commander. Once charges are preferred, the accused’s immediate commander must notify the accused of the charges as soon as possible. This is typically done at the same time as preferral. It may be done by reading the charges to the accused or giving him or her a copy of the charge sheet. Once this is done, the commander completes block 12 of DD Form 458, Charge Sheet.
Sometimes it is appropriate for a commander to place a suspect under restraint or confinement prior to trial to prevent him or her from fleeing or committing more misconduct. Such action should be taken only after obtaining legal advice from the supporting staff judge advocate office.
Types of Restraint.
- Apprehension. Apprehension involves taking a person into custody. All commissioned officers, warrant officers, petty officers; noncommissioned officers, military police and persons designated to perform guard duties are authorized to apprehend persons subject to the Code, on reasonable belief that an offense has been committed and that the person apprehended committed it. Unlike the other forms of restraint discussed below, apprehension is not a long term measure designed to prevent a suspect from fleeing or committing additional misconduct prior to trial. Instead it is a temporary measure which may be used to interrupt a suspect’s misconduct or secure a suspect for questioning.
- Conditions on liberty. Conditions on liberty are any orders requiring a person to do or refrain from doing specific acts. For example, an order for an accused not to contact the victim would be a condition on liberty.
- Restriction. A person in restriction is required to remain within specified geographical limits, such as the installation, unless his duties require the limits to be exceeded. The limits of restriction are usually broader than the limits imposed on one in arrest. The person in restriction may be required to perform full military duties, to include the exercise of command and the bearing of arms.
- Arrest. Arrest is the moral restraint imposed by an order directing the accused to remain within certain specified limits such as the accused’s room. A person in the status of arrest cannot normally exercise command, supervise personnel, serve as guard or bear arms. Arrest is a more severe restraint than restriction. Arrest includes suspension from performing full military duties and the limits of arrest are normally narrower than those of restriction.
- Confinement. A person in confinement is physically restrained, generally in a confinement facility. While in pretrial confinement that person is not subject to any punishment or penalty except that inherent in the loss of freedom. However, a confinement officer may impose administrative punishment for breaches of discipline.
Pretrial Confinement Procedures.
- Before placing an individual in pretrial confinement, the officer ordering confinement must first determine that there is reasonable cause to believe that an offense has been committed and the accused committed it. Normally, a soldier’s commander is the officer who orders pretrial confinement.
- Pretrial confinement and other forms of restraint (except apprehension) are only permissible to ensure the accused’s presence for trial, or to protect the community from further acts of serious criminal misconduct.
- Normally, pretrial confinement may not be imposed unless lesser forms of restraint have been considered and would be inadequate.
- A neutral and detached magistrate must review and approve pretrial confinement. The magistrate must evaluate whether there is probable cause to believe that the accused has committed an offense and whether the individual should be confined.
Once charges have been preferred, they are typically forwarded up the chain of command for appropriate action. Military organizations usually have detailed regulations governing this process.
Action by Immediate Commander. When the immediate commander desires to recommend trial by court-martial, the commander forwards the charge sheet and allied papers to the officer exercising summary court-martial jurisdiction over the accused, along with his or her personal recommendation as to disposition of the charges. The immediate commander should indicate what type of court-martial he or she recommends. Sufficient written information, including witness statements, should be forwarded to enable the summary court-martial convening authority to make an intelligent disposition of the case. If the immediate commander recommends trial by special or general court-martial, he or she should sign a transmittal memorandum which includes his or her personal recommendation as to disposition. The memorandum should include the following enclosures:
- A summary of the available evidence relating to each offense including available witness statements, documentary evidence, and exhibits;
- Evidence of previous convictions and nonjudicial punishment of the accused;
- An indication that the accused has been offered and refused nonjudicial punishment, if appropriate;
- Any other matters required by superior authority or deemed appropriate, such as: Information concerning the accused’s background and character of military service; an a description of any unusual circumstances in the case.
Action by Summary Court-Martial Authority.
When the Summary Court-Martial Convening Authority (usually the battalion commander) receives the charges he or she will note the date and time of receipt on block 13, DD Form 458, Charge Sheet. The summary court-martial convening authority may then take any of the following actions:
- Dismiss the charges;
- Return the case to a subordinate commander for disposition;
- Initiate proceedings under Article 15;
- Initiate administrative action such as administrative separations.
- Refer the case to a summary court-martial for trial.
- Forward the charges to a superior commander for disposition. The endorsement forwarding the charges must contain a personal recommendation as to the disposition of the case.
- Refer the case to an investigating officer for a thorough and impartial investigation under Article 32 of the UCMJ if trial by general court-martial is contemplated. After receiving the report of investigation under Article 32, the summary court-martial convening authority may take any of the actions listed in above.
Pretrial Investigation under Article 32, UCMJ.
Article 32, UCMJ, requires that no charge be referred to a general court-martial until a thorough and impartial investigation is completed. The purpose of the formal pretrial investigation is to inquire into the truth of the matters set forth in the charges, the form of the charges, and to secure information upon which to determine the disposition of the case. It is not the function of the investigation to perfect a case against the accused, but rather to ascertain all the facts and circumstances surrounding the alleged offenses. Do not confuse this investigation with the preliminary inquiry conducted by the commander prior to preferral of charges.
The summary court-martial convening authority or a higher level convening authority may appoint an officer as the investigating officer and forward the charges and allied papers to him or her. After the investigation has been completed, the investigating officer returns the completed report of investigation to the appointing authority. DA Pamphlet 27-17, Procedural Guide for Article 32(b) Investigating Officer (16 Sep. 1990) contains specific guidance for the investigating officer. Normally the special court-martial convening authority appoints the investigating officer, but the summary court-martial and general court-martial convening authorities also have the authority to appoint an investigating officer.
Upon completion of the report the appointing authority evaluates the entire file. The appointing authority may decide to dismiss the charges or may offer nonjudicial punishment or may use administrative measures. If court-martial is warranted, the appointing authority may refer the case to trial by a court martial within his or her authority to convene. If trial by a higher level court is appropriate, the appointing authority forwards the file to the officer having authority to convene such a court.