Courts-Martial Procedures

Three Types of Courts-Martial

A Court-martial is military court that tries service members for violations of the Uniform Code of Military Justice. Service members are subject to the UCMJ and military jurisdiction whenever they are on active duty or otherwise acting in a Title 10 status. When a service-member is alleged to have committed a criminal act in a civilian jurisdiction, military and civilian authorities will cooperate and exercise joint jurisdiction. In a case involving joint jurisdiction, civilian and military authorities will determine whether the crime in question will be prosecuted by military court-martial, federal, or state courts. If the crime took place outside of US borders, the accused may be tried in the foreign jurisdiction depending on the details of the criminal act; however, the U.S. encourages other nations to allow service members to be tried at a U.S. court martial.

There are three types of courts-martial: summary, special, and general.

  • Summary Court-Martial: Minor incidents committed by enlisted personnel may be tried by summary court martial. A summary court-martial is the least formal of all courts-martial with only a Summary Court Martial Officer presiding. The SCMO does not have to be a Judge Advocate. A service member may only be tried at a summary court-martial if they agree. The accused service member may refuse trial by summary court-martial. The court-martial convening authority would then have the option of referring the charges to a higher level court-martial. There is no right to counsel in a summary court-martial. Sentencing at a summary court-martial varies based on the rank of the service member being punished. In all cases, punishment is limited to 30 days confinement,
  • Special Court-Martial:. A special court-martial is generally thought of as equivalent to a civilian misdemeanor court. During these proceedings, a military judge, prosecuting and defense attorneys, and at least three officers acting as jury will be present. The accused can request a court composed of one-third enlisted personnel, or stand trial with only the judge presiding. Sentencing can be up to 12 months of jail time, bad-conduct discharge, or two-thirds of basic pay for up to six months.
  • General Court-Martial: The most serious crimes are referred to a general court martial. Unless the accused waives, a preliminary hearing under Article 32, Uniform Code of Military Justice takes place before a case can be referred to a general court martial.

Set Up of General Courts-Martial

General Courts-Martial are comprised of a military judge, defense and prosecuting attorneys, and a minimum of five court members. Even at this level, an enlisted accused may request a court of one-third enlisted personnel or the judge alone; the exception would be if sentencing could result in a death sentence. The Manual for Courts-Martial guides sentencing: minor punishment is possible, but so is a bad-conduct discharge or dishonorable (for enlisted), dismissal (for officers), confinement, or even a death sentence.

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