The Uniform Code of Military Justice [UCMJ], enacted by Congress, contains the substantive and procedural laws governing the military justice system. The President prescribes procedural rules and punishments for violations of crimes in the Manual for Courts-Martial [MCM].
Investigations of serious offenses involving military personnel such as rape, indecent assault, drugs, or larceny are usually conducted by a criminal investigative agency, such as the Army's Criminal Investigation Command [CID]. For less serious offenses and most military-connected crimes, the authority rests with military or security police investigators. In cases involving very minor offenses, the immediate commander of the military member suspected will conduct or cause to be made a preliminary inquiry. Lawyers, known as judge advocates, are actively involved in advising commanders throughout the process.
Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished. The disposition decision is one of the most important and difficult decisions facing a commander. The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:
- The commander may choose to take no action. The circumstances surrounding an event actually may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime, that the only evidence is inadmissible, or the commander may decide that other valid reasons exist not to prosecute.
- The commander may initiate administrative action against a soldier. The commander might determine that the best disposition for this offense and this offender is to take administrative rather than punitive action. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation.
- The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. Nonjudicial punishment hearings are non-adversarial. They are not a "mini-trial" with questioning by opposing sides. The commander conducts the hearing. The service member may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the service member guilty, the commander must be convinced beyond a reasonable doubt that the service member committed the offense. The maximum punishment depends on the rank of the commander imposing punishment and the rank of the service member being punished. The service member has a right to appeal the imposing commander's decision to the next higher commander.
- The commander may dispose of the offenses by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may chose from three potential levels of court-martial: summary, special, or general court-martial. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged. A summary court-martial is designed to dispose of minor offenses. Only enlisted soldiers may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him. A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel.
A general court-martial is the military's highest level trial court. This court tries service members for the most serious crimes. The punishment authority of the general court-martial is limited by the maximum authorized punishment for each offense in the Manual for Courts-Martial. Before any charge is sent to a general court-martial, an Article 32 investigation must be conducted. The Article 32 investigation is closely akin to the civilian grand jury investigation. At the close of the hearing, the Article 32 officer, makes a recommendation concerning the disposition of the charges. The recommendation is not binding on the convening authority. The general court-martial may take either of two forms. It may consist of a military judge and not less than five members, or solely of a military judge. The accused may elect trial by judge alone in all cases except those referred as capital cases. In a trial with court members, a minimum of five members must be present. An enlisted accused is entitled to at least one-third enlisted membership upon request.
The trial of a court-martial is not unlike a civilian criminal trial. The differences lie in the procedural requirements. The military follows rules of evidence patterned after the Federal Rules of Evidence. The members or judge hears evidence and renders a decision concerning the accused's guilt. In order to convict the accused the members must be persuaded beyond a reasonable doubt that the accused is guilty. If the accused is convicted, a sentencing hearing is held.
An accused convicted by court-martial is entitled to review of his trial. Before approving a court-martial conviction and sentence, the convening authority must be satisfied beyond a reasonable doubt that the findings are supported by the evidence. The type of review depends on the level of trial and nature of the approved sentence. Some appeals may proceed all the way the United States Supreme Court.
The initial step in the appellate process is a review by the convening authority. The convening authority may approve all or any part of a legal sentence; he may mitigate a sentence or change the punishment to one of a different nature so long as the severity of the punishment is not increased.
If the convening authority approves a punitive discharge [either a bad-conduct discharge, dishonorable discharge, or dismissal] or confinement in excess of one year, the record of trial must be reviewed by the Department's Court of Criminal Appeals. This court, composed of military judges, will weigh the evidence and decide whether the findings and sentence are legally correct and, if so, whether the sentence is appropriate. The court may set aside the findings and sentence or may reduce the sentence, but it cannot increase the severity of the punishment.
The next court in the appellate process, the Court of Appeals for the Armed Forces, is composed of five civilian judges appointed by the President for fifteen years. This Court's review questions of law only. Both the accused and the government may petition the Supreme Court for a writ of certiorari from the Court of Appeals for the Armed Forces. The review by the Supreme Court is entirely discretionary and extremely rare.