(University/Institute)
Abstract
The goal of the justice system, whether the military establishment or in civilian society, is that the appropriate penalty is levied against the offending party. In the context of the military organization, the punitive sanctions against erring personnel as well as a number of individuals connected with the military is the Uniform Code of Military Justice (UCMJ) wherein the concept of “non-judicial punishment” is contained. The UCMJ regulates and oversees the conduct of all trial procedures as well as the determination of the proper forum for the litigation and resolution of the charges arrayed against service members. In this light, the concept of “non-judicial punishment” will be assessed as well as the impact of a conviction of the member when he/she returns to civilian life. The paper seeks to address the various impacts on the rights of the convicted service members in the civilian arena and the efficacy of the NJP concept in instilling discipline and order in the organization sans the need for court martial proceedings.
Keywords: Court martial, military justice, UCMJ, NJP
Justice in the Military
As in the case of civilian law, military jurisprudence is anchored on the Constitution of the United States; in addition, the canon has given Congress the mandate to enact laws to oversee and administer the affairs of the military and sets the President as the Commander in Chief of the US armed forces. Congress exerted its mandate in the area of military jurisprudence by adopting the UCMJ, the “Uniform Code of Military Justice.” Listed in Title 10 of the United States Code, sections, 801 to 946, the UCMJ was adopted in 1950 as a retooling of the prevailing military legal codes at the time.
Aside from military laws that penalize offenses such as “dereliction of duty,” being inebriated while on duty, negligence to or deliberately disobeying orders, the set of laws also punishes “civilian crimes” such as sexual assault, driving when inebriated, and killing. Senior officers are given a prominent part in the military as discipline is an integral characteristic in the organization. Nevertheless, the Code adopts a plethora of extensive protections against possible abuses of power by the officer hierarchy (United States Army Military District of Washington). Given the incidents of military abuses that have been in the news recently, the debate centers on whether the UCMJ and the NJP mechanisms are still effective deterrents to malfeasance in the military establishment.
Uniform Code of Military Justice
In essence, the UCMJ is an extensive set of criminal laws; it defines the criminal activities wherewith the military hierarchy can charge military personnel and imposes discipline by way of the non-judicial punishment system that is also provided within the UCMJ. However, it must be understood that the UCMJ is solely a criminal or disciplinary mechanism; in this context, it can be said that it is no different from legal regimes operating in the local and state governments. As such, the UCMJ cannot be engaged for the resolution for private litigation matters or implementing civil actions such as debt payments.
Non Judicial Punishment
Also known by terms such as “Captain’s Mast,” “Article 15,” and “Office Hours,” the objective of the mechanism is to penalize soldiers for minor transgressions such as reporting late, giving false data, and deliberately disobeying orders. In this light, the determination of whether the offense committed by the soldier is minor is left to the discretion to the military hierarchy; however, superiors can also order the conduct of a court martial for the same case.
In addition, though the penalties that can be imposed under the NJP regime is largely limited to detention and reduced allotment of resources, the imposing authorities can also add to these penalties such as additional chores, reduction in rank and restriction of movements can also be imposed. The accused has the right to request to personally appear before the executing officer. In the appearance, the accused is given the right against incriminating himself/herself, to be accompanied by counsel as well to be informed of the charges and evidence against him/her, and the rights to have the proceedings open to the general public.
Appeals mechanism
An adverse ruling, the accused can ask for a reconsideration of the decision on the assumption that the penalty is grossly disproportionate to the crime. The accused must accomplish the appeal in writing and sent to the next higher officer than the one who imposed the sanctions on the accused (Military Advantage, 2016). In addition, Morris (2010, p. 36) also notes that members of the Reserves of the armed forces also fall under the scope of the UCMJ during their “tours of duty.” As reserves are civilians in status until such time when these are called to duty, the crimes committed by the reserve personnel are not covered under the ambit of the UCMJ.
In a general sense, Mason (2013, p. 13) notes the military criminal justice system gives extensive leeway in the area of determination of the sentence to be given in a court martial proceeding. The court can render a punishment not specifically barred by the UCMJ. In addition, the sentencing can be limited to that of the conviction in the court martial.
However, there must be first a definition of what exactly constitutes a “minor offense.” The differentiation of the offenses, whether one can be regarded as a minor or severe offense, is a highly emotional and controversial area in military jurisprudence. Eventually, the determination of the gravity of an offense is still within the authority of the commanding officer. To elucidate the point, a “minor offense” traditionally means malfeasance that merits the convening of a proceeding less than a summary court martial. In the operation of Article 15 of the UCMJ and Part V of the “Manual for Courts Martial,” the events and instances attending the offense must be taken into consideration when determining whether the offense can be treated as a minor or severe offense, and in this light, whether an NJP proceeding should be offered or when the action merits the convening of a full blown court martial (Find Law, 2016).
As is the case in the criminal justice system for civilians, some of the fundamental goals of the military system include discovering the truth, giving a proportionate punishment commensurate to the offense committed, and acquitting the innocent, among others, to achieve peace and order in a society. According to Mason (2013, p. 1), the military justice system seeks the same objectives but adds the objective in preserving discipline in the organization. Article III in the Constitution that oversees the Federal judiciary, and the High Court has ruled that the mandate of Congress to “make rules for the government and the regulation of the land and naval forces” is separate from the ambit of Article III.
UCMJ: Scope of application
Greenberg and Dratel (2005, p. 576) notes that the UCMJ can be engaged in courts martial litigations regarding acts of abuse by US military personnel, whether within the territorial United States or abroad. The laws generally apply to members of the military, but can also impact certain civilians in times of war or are deployed with military units in the field. As the UCMJ is empowered to try individuals who have violated codes of war, the law seems to be applicable to prisoners of war; however, these are not applicable to civilians in times of peace and civilians who are deployed with military units overseas.
Types of Courts Martial
With regards to courts martial, military law recognizes three types. The first, the “summary court martial,” is a distinct process that is characterized by an absence of defense counsel as well as a jury and cannot render a finding of guilt that is recognized in Federal jurisprudence since the proceeding is not recognized as a criminal litigation under the ambit of the Sixth. The “special court-martial” is similar to that of a misdemeanor trial court, and lastly, the “general court martial” are similar to a felony court. With each level, the protections as well as the stakes grow higher, as well as the possible punishments that can be levied against the offender.
Summary Courts Martial and Special Courts Martial
All of these form components in the decision-making process of the officers in determining what courts-martial system to convene. A summary court martial cannot mandate the discharge of any personnel with the maximum penalty that can be given at this stage is the relinquishment of the monthly pay of the personnel.
The primary function of this type of proceeding is to penalize and discipline soldiers who have committed minor criminal acts, but the level of the actions is deemed too severe for non-judicial punishment alone to be meted out. The “special court martial” is the equivalent of misdemeanor court; in terms of sanctions, this level of courts martial can rule to imprison individuals for a period of one year and demote the rank of the soldier to the lowest possible rank and order the relinquishment of two thirds of the soldiers’ pay. However, officers cannot be discharged from the military and their ranks cannot be reduced by a “special court martial.”
General Courts Martial
The last is the “general courts martial,” the equivalent of a felony court in the civilian criminal court. At this level soldiers, regardless of rank, can be meted the severest punishment listed in the Manual for Courts-Martial. Among the sanctions that can be levied against those found guilty of the criminal accusations include the demotion to the lowest grade and relinquishment of all compensation and benefits.
Enlisted personnel can either be “dishonorably discharged” that will merit the removal of the individual from the military’s rolls, or be meted the punishment of demotion to the lowest rank inclusive of forfeiture of all benefits and allowances (Morris, 2010, p. 45). Nonetheless, the effect of the dismissal of the soldier is not limited to separation from the service or even forfeiture of benefits; whether the dismissal of the soldier was for honorable or ignoble reasons, these will follow the soldier for their lifetime (Wicks, 2012).
Special courts martial can litigate any member of the armed forces for crimes not engaging, or by presidential fiat, involving the imposition of capital punishment. These courts commonly adjudicate crimes that are regarded as misdemeanors. The court can be comprised of a single judge or a body composed of three judges, or a military judge and three members. Compared to civilian courts, the concurrence of two-thirds of the court is the sole requisite to find an accused in a court martial proceeding guilty of the charges against him/her. If there is no concurrence between the members, then the accused is acquitted; there are no “hung juries” in military courts.
The “general court martial” is the highest adjudication body in the military criminal justice system and is engaged to try only the most severe offenses. The court can be comprised of a single judge, or a body no more than 5 members as well as the judge. The body can adjudge a wide range of cases that can result in punishments from relinquishment of the accused’s benefits to, at certain instances, the imposition of capital punishment (Mason, 2013, p. 5).
Impact of a conviction on soldier’s civilian life
Soldiers that have been convicted in a general court martial face the loss of a number of rights. Among these rights is the right to own a firearm, parental guarantees, and employment in the public sector as well as the right of suffrage, among others. If the soldier is found guilty of sexual assault, then the offender is mandated to register with the community police department or other relevant agency. In the case of voting rights, 46 states as well as the District of Columbia has adopted laws depriving convicted criminals of their right to vote; 32 states disfranchises paroled convicts, and 29 states that also disfranchises felons on probation. Withal, only a small number of states have perpetually disenfranchised felons.
In addition, Walker (2001, p. 10) notes that Federal law also excludes convicted felons from legally owning firearms; in addition, criminals that have been found guilty of misdemeanors or domestic violence offenses. These restrictions include military personnel that have been found guilty in court martial proceedings. These restrictions are implemented by Federal officials by way of “background checks” under the “Brady Handgun Violence Prevention Act.” In the operation of the law, all federally regulated gun dealers must do an investigation via the “National Instant Criminal background Check System (NICS) to guarantee that the potential gun owner is legally qualified to own a gun. In this light, soldiers that have been found guilty in the military justice system must judiciously study the gun ownership/restriction laws in their jurisdiction).
Withal, though courts-martial is the most common mechanism associated with the military criminal justice system, full blown trials are the least form that military leaders will establish to punish offending personnel. Majority of military officers will most likely resort to other punitive sanctioning mechanisms other than a trial. These often take the form of meting out “non-judicial punishment (NJP) which has no parallel in the civilian criminal justice system. NJP structures allow the military hierarchy to render penalties against erring personnel outside the ambit of the UCMJ.
Difference of conviction under UCMJ and NJP mechanisms
However, though the mechanism will facilitate the sanctioning of the offender, the process is lacking in “due process.” The NJP mechanism establishes a record of the offense, but is only for the military’s purposes. The NJP is not tantamount to a conviction in Federal law and is extinguished, in that the record does not apply when the soldier leaves the service. Military observers noted that there has been an abuse in the use of the courts martial system, even for resolving minor infractions and at the same time affirm the authority and the leadership structure in the organization, but did not place the career of the soldier in jeopardy or impact morale. The NJP has proven to be an effective alternative to the courts martial system, and has since then been extensively used to penalize erring soldiers and instill discipline in the organization (Morris, 2010, p. 148).
Majority of the soldiers that were offered this mechanism chose to accept this mode of adjudication. Nonetheless, when the soldier/s turn down the offer for a NJP proceeding, it is not tantamount to the case automatically moving on to a courts martial process. Though the right to be tried by court martial is existent, this does not mean that the case will move on to this step. The military leadership will examine and assess a number of options, inclusive of court martial proceedings, incrementing or removing charges or initiating additional investigation activities.
There are instances when officers will choose to pursue administrative penalties, or the leadership will reject the charges or even decide that adjudicating the case will not be cost effective and discharge the charges. It is also possible that in these cases, military superiors will reinvestigate the charges before turning over the case to a court martial for resolution (Morris, 2010, p. 155).
Upon review of the conviction, the accused can request for clemency under the ambit of the UCMJ. The mandate of the CA to change or alter the case conclusions as well as the punishment rendered by the court martial is a command privilege engaging the discretion of the CA. Any action of the CA to set aside, overturn, commute, or suspend the sentence of the accused is non-appealable by the United States.; the ruling of the CA is final and executory when the decision is released.
In the matter of command discretion, the CA ruling does not allow the victim of the crime to participate in the clemency stages of the sentencing review. However, Congress acted to give this right to the victims with the proposal of the amendments to the National Defense Authorization Act (2014). Though the basic premise is that the contending parties be given a part in the process, the language by which that participation is premised differs between the two chambers.
The version of the House allows the protesting witness to submit issues to the CA before any consideration for clemency can be acted upon, the Senate version allows the witness not only to submit manifestations to the CA, the Senate proposal allows the witness to review the submissions of the accused that points to the witness before any action is taken by the CA. Moreover, both versions stipulate that the CA is barred from considering any issues regarding the character of the contending parties if these were not discussed during the trial (Mason, 2013, p. 12).
References
Find Law (2016) “What is non-judicial punishment?” Retrieved February 3, 2016 from <http://military.findlaw.com/administrative-issues-benefits/what-is-non-judicial-punishment.html
Greenberg, K.J., Dratel, J.L (2005) The torture papers: the road to Abu Gharib. Cambridge: Cambridge University Press
Mason, R (2013) “Sexual assaults under the Uniform Code of Military Justice (UCMJ): selected legislative proposals.” Retrieved February 3, 2016 from <https://www.fas.org/sgp/crs/natsec/R43213.pdf
Military Advantage (2016) “Non-judicial punishment explained” Retrieved February 3, 2016 from <http://www.military.com/benefits/military-legal-matters/nonjudicial-punishment-explained.html
Morris, L.J (2010). Military justice: a guide to the issues. Santa Barbara, CA: ABC CLIO
United States Army Military District of Washington “The Uniform Code of Military Justice and Manual for Courts-Martial” Retrieved February 3, 2016 from <http://mdwhome.mdw.army.mil/docs/media-documents/ucmj.pdf?sfvrsn=2
Walker, J (2001) “The practical consequences of a court-martial conviction” Retrieved February 3, 2016 from <https://www.hsdl.org/?view&did=445125
Wicks, B (2012) “Leaving on good terms: types of discharges, their consequences.” Retrieved February 3, 2016 from <http://www.forthoodsentinel.com/news/leaving-on-good-terms-types-of-discharges-their-consequences/article_7a646c48-8852-5ba4-a8d3-d4c01e90c662.html
