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totallynotabrony


More Blog Posts58

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Aug
13th
2020

US Military Legal Proceedings · 3:19am Aug 13th, 2020

Court martial!

Okay, calm down, let's take a step back. Court-martial is the worse of the two outcomes here, and it has several variations, so we'll walk through the basics first.

The UCMJ

In a previous blog, I talked about general US Government legal titles. Inside Title 10, which you'll remember as the book of laws that covers the military, there is the Uniform Code of Military Justice (UCMJ). Anyone who falls under Title 10, which includes active duty military as well as anyone operating under that authority such as federalized National Guard, is bound to the UCMJ. Many state National Guards have a legal system that is similar, however.

The UCMJ is only passingly similar to a book of civilian laws. It does cover a lot of the same things that civilian law does (i.e. "don't rape people"), but it also has things in it that make sense for the military (i.e. "don't go AWOL"). Many of these additions hold military members to higher standards than civilians. I want to point out specifically the rather unspecific term "conduct unbecoming."

Actions that bring discredit upon the armed forces are prohibited. What does that mean? Well, it's sometimes used as a vague catch-all, if a violation is not specifically mentioned in the UCMJ but a military member's leadership believes they still require punishment. However, there are examples mentioned in the UCMJ, such as adultery. In the civilian world, cheating on your spouse is a dick move, but it's not illegal. It is in the military.

But why? Well, it's conduct unbecoming - it makes the military look bad. I guess it could be argued that a cheater isn't trustworthy with military secrets or something. Regardless of the reasoning for specific violations, the takeaway here is that the UCMJ holds military members to higher standards than civilians.

When you violate something covered under both civilian and military law, who brings charges? Sometimes, both! The issue of double jeopardy is kind of thorny, but generally once a court has ruled on a case, a defendant cannot be tried again for the same offense. However, many military punishments are not "tried" so yes, a military member could also be charged in a civilian court.

NJP

Less than a court-martial.

Under Article 15 of the UCMJ, commanders have the authority to exercise Non-Judicial Punishment (NJP) over their subordinates for minor breaches of discipline. This is non-judicial: not a trial.

What is a "minor breach of discipline"? I couldn't easily find the answer, so I'm going to assume everything below the felony level. In the modern military, examples include things like drunk driving or the aforementioned adultery.

Each branch of the military has its own slang for this process. The Army simply calls it an Article 15. The Navy/Marines call it a Captain's Mast, for traditional reasons. The Air Force apparently calls it Office Hours. Every branch will recognize the term NJP, though.

Depending on the commanding officer's wishes, they may delegate some of the process. For example, the accused could have a few reviews by increasingly senior personnel before ever facing the Commanding Officer. A junior enlisted member in trouble may attend a board by senior enlisted, who will discuss the issue and then recommend if the process should proceed up to the CO, or end there. The panel of senior enlisted could explore more facts of the case, or discover that it was unwarranted.

Upon facing the CO, the case, the facts, evidence and such will be discussed between the CO, the accused, and others. The accused is typically allowed to have an advocate. This is not a trial, but it's expected to be fair. If deciding guilt, the CO may decide on a punishment. This could include written reprimand, reduction in rank, correctional custody, loss of pay, extra duty, and/or restriction to base. These restrictions and pay cuts are typically only for a month or two. Navy and Marines still authorized three days' confinement on bread and water as a potential punishment all the way up until 2019.

Court-Martial

An accused military member has the right to refuse NJP and instead opt for a court-martial. For violations more serious than those for NJP, a court-martial may proceed automatically.

There are three kinds of court-martial:

-Summary court-martial
Lowest level, may only punish at the same level as NJP. One individual, not necessarily an attorney, functions as judge and acts as the sole finder of fact. In this way, it is similar to NJP, however the functioning judge of a Summary court-martial is not the commanding officer but someone appointed by them. An accused is not specifically entitled to receive legal representation from military defense counsel, but is free to consult a military JAG or civilian lawyer for advice about the case.

-Special court-martial
If the Summary court-martial was similar to NJP, then this one is actually more like a trial. It consists of a military judge, prosecutor, defense counsel, and a minimum of three officers sitting as jury. An enlisted accused may request a jury composed of at least one-third enlisted personnel. A Special court-martial may instead consist of a judge alone if requested by the accused or if the convening authority decides so. A Special court-martial sentence may include up to one year of pay forfeiture or confinement and/or a bad-conduct discharge.

-General court-martial
A General court-martial steps up to a minimum five-person jury. Nothing is off the table here; an accused could even be sentenced to death. This is the kind of court-martial that happened in A Few Good Men (screencap above)

In every court-martial resulting in conviction, the convening authority (i.e. the commander who ordered the trial to proceed) must review the case and decide whether to approve the findings and sentence.

Conclusion
So to wrap up, you can think of the military justice system as bearing a resemblance to the civilian side, but only vaguely. An NJP is kind of at the level of a misdemeanor, while a court-martial is at the level of a felony. However, the military has many more things considered offenses than the civilian legal system.

Few members of the military will ever go to court-martial. Most will not ever get NJP. However, it makes for good drama, so it comes up in fiction a lot.

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Comments ( 12 )

NJP's are a lot more common than you're saying here. CM isn't common, pretty much every serviceman will incur an NJP at one point or another during their four.

Also

However, many military punishments are not "tried" so yes, a military member could also be charged in a civilian court.

Not true for the longest time, and a bug not a feature. The civilian side basically screeched about the military having its own judicial system and took basically all power away from it, this was only fairly recently restored.

Over 20 years in the Navy, things I've personally seen people go to NJP for:

Having sex on the ship.
Doing drugs.
Dealing drugs.
DUI.
Drunk on duty.
Assault/fist fights.
Gundecking (falsifying maintenance paperwork and/or qualifications).
Providing alcohol to underage.
Going UA (unauthorized absence, you're not AWOL until you hit 30 days, and that's automatically court martial).
Disrespecting a superior (usually this was extreme, like loudly cursing out a chief or officer).
Watching porn on government computers.
Sending a radical Christian chain letter to all hands, Including the CO.
Domestic Violence.
Failure to salute the CO while standing watch.

Now, before you get to NJP, the Navy has two important earlier steps. First, you get DRB (disciplinary review board). This is a table full of senior enlisted (E7-E9) that are going to grill the shit out of the accused, shout at them like it's boot camp round 2, and basically determine if the offense is actually worth pushing upline. Punishment usually tops out at 20 hours of extra duty.

After that comes XOI (executive officer inquiry), where the XO gets to do a mini NJP and decide if it's worth going up to the CO. (Spoiler, about 90% do.) Punishment usually tops out at 40 hours of extra duty.

NJP, you get to see The Man (aka, the CO). He's the one who van knock you down a rank, strip qualifications from you, and dock your pay. Usual punishments are either GTFO (other than honorable discharge, for drugs or dui); 30 days extra duty (60 hours), loss of 1/2 month pay, and suspended loss of rank (ie, you're not losing it now but screw up again and you will); or 60 days extra duty (120 hours), loss of one month pay, and immediate loss of rank.

things like drunk driving or the aforementioned adultery.

I would heavily argue this point. Throughout my thirteen years in the Army, one of the biggest things that was hammered into my skull was that the two quickest ways to end your career and get the boot/go to jail were DUI and domestic abuse. We were straight up told that if you have one beer and drive before an hour had passed, you were DUI and they would nail you to the wall. We were straight up told that it doesn't matter if your wife is coming at you with a butcher knife screaming that she's gonna kill you, if you lay so much as one finger on her, you're going to jail. And that actually happened to a buddy of mine! Literally, his crazy ass wife broke his arm with a cast iron frying pan, but because he shoved her to the ground to keep her away, he lost rank and was discharged.

So no, a DUI or domestic abuse are way beyond Article 15 these days... unless you're an E-8 or above, of course. We had a soldier get caught driving under the influence... in Top's truck... with Top passed out drunk in the passenger seat, and Top just got shuffled over to the motor pool and was left to run out the clock to retirement. The soldier got nailed to the wall for a DUI, if you care.

5334736
I find this interesting and useful. But just to clarify... he mentioned "adultery" which is not domestic abuse. It means cheating on your spouse. Wasn't sure if you were confused, or if you brought up domestic abuse as another example/talking point in addition to adultery or DUI.
Not trying to be rude, legit just making sure I'm on the right page.

5334765

No, you're right. I've had a few cocktails tonight, so I misunderstood. Simple adultery may indeed be Article 15 worthy. I;m not sure.

5334795
Thanks for clarifying! I appreciate it.

5334795
5334799
Can I just say that the pleasant, non-confrontational tone of your interaction has made my morning? Thank you. :yay:

5334903
WELL this might be the first time I have ever called non-confrontational. XD

I can't help but laugh at the timing of this after I asked in the chat the other day about certain punishments.

5335095
It's why I wrote it. I figured I'd already gone halfway on the research.

5334728
That also depends on Branch. In the Air Force it's a lot less NJP-heavy (likely tied how we're also slow to promote people so they're less likely to take it away). After 4 years in my squadron, I have seen exactly 3. One DUI and two for PT failure.
Everything else stops at either the Letter of Counseling level (immediate supervisor paperwork, doesn't really mean anything on its own), or Letter of Reprimand (still supervisor-level, but actually goes onto your permanent record).

This also means that anytime there is any kind of force draw-down, if you have an Article 15 at all you are unlikely to be allowed to reenlist.

5334728
I know they weren't that common, at least in the Navy. Maybe 10% of first term sailors screwed enough to get to NJP, and after first term the percentage went down. (Of course, the ones that did make it that far tended to be epic.)

Also at least for a while, I know you could get double charged for DUI, but it depended on who caught you. Highway patrol? You get the state fines, and then NJP when your command finds out. Base police? Only NJP and the state couldn't touch you.


5334736
You ain't kidding. We had one Command Master Chief - the most senior E9 on a damn carrier - come back so drunk she hit the non-skid face first and then pissed herself in medical while they were trying to treat her for possible alcohol poisoning. No punishment. That same port call, at least three E1-E4 got NJP for being passed out drunk.

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