“Military justice is to justice what military music is to music.”

– Julius Henry “Groucho” Marx[1]

“If I had an innocent client, I would want that person to be tried in a military court[, where] the accused receives a full and fair trial of the facts."

– F. Lee Bailey, For the Defense (1975)[2]

 

PRACTICING CRIMINAL LAW IN MILITARY COURTS IN OKLAHOMA

“I agree that it will be a grave error if by negligence we permit the military law to become emasculated by allowing lawyers to inject into it the principle derived from their practice in the civil courts, which belong to a totally different system of jurisprudence.”

– Gen. William T. Sherman, 1879[3]

 

For most criminal law practitioners, their craft is primarily done in the state, federal and municipal courts, and since 2020, it has expanded into tribal courts after McGirt v. Oklahoma. What many may overlook is yet another venue for the criminal defense bar to practice its craft – the representation of a military service member in a court-martial. Oklahoma has long had a deep military connection with a strong military presence within its borders with Fort Sill, Tinker Air Force Base, Vance Air Force Base, Altus Air Force Base and the McAlester Ammunition Depot, as well as numerous Reserve and National Guard units gracing the heartland.

While each respective branch of service has its own attorneys in uniform as members of the Judge Advocate General’s Corps (JAG Corps) to represent an accused, service members also seek civilian defense counsel. For the civilian trial lawyer, a working knowledge of the military justice system is an opportunity to “defend those who defend America.”

THE FOUNDATIONS OF MILITARY JUSTICE

“Military law ... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.”

– Chief Justice Fred M. Vinson, Burns v. Wilson, 346 U.S. 137, 140 (1954)

The American system of military justice is older than our federal court system and houses its foundations back to Richard the Lionheart in 1190.[4] It is a criminal justice system with worldwide jurisdiction[5] over service members on active duty and based on the necessity of “good order and discipline.”[6] Jurisdiction of a court-martial depends solely on an accused’s status as a member of the armed forces, not the location or “military nature” of the crime.

As with any system of law, the primary source is the statute itself; military law is codified in the Uniform Code of Military Justice (UCMJ or code). This is complemented by the Manual for Courts-Martial (MCM or manual).[7] Courts-martial are courts of special and limited jurisdiction that derive their authority from the U.S. Constitution,[8] the UCMJ, the MCM[9] and customary international law and treaties. The genesis of our system was the Articles of War, which were derived from the British Code of 1765.[10] It was revised in 1806, again during the War of 1812 and the Seminole Wars, again in 1874, and it was completely overhauled in 1917. While the Articles of War governed the Army, the Navy operated from a completely different system known as the Articles for the Government of the Navy (or Rocks and Shoals).

When the armed services unified under the Department of Defense in 1947, efforts began for a uniform code that would jointly cover each of the armed service branches.[11] The UCMJ[12] was enacted and signed into law in May 1950, with the MCM following in 1951. After the Korean and Vietnam conflicts, there were major revisions to the MCM in 1969 and again in 1983 with the Military Justice Act and executive order by President Ronald Reagan in the adoption of the MCM in 1984, with annual revisions being made.

Additionally, stare decisis is followed in military courts, which mostly relies upon their own precedents from their service branch courts,[13] and the next-in-line appellate court, the Court of Appeals for the Armed Forces (CAAF),[14] and, of course, the precedential opinions from the U.S. Supreme Court. Other helpful (and often necessary) sources include regulations issued by the Department of Defense or service secretary,[15] military law review articles[16] and court decisions.[17]

Over time, there have been misconceptions of the military criminal justice system – that members of our armed forces do not enjoy the same constitutional protections they are sworn to defend. In actuality, the rights guaranteed to military members in the pretrial, trial and posttrial stages are probably more protective than the rights granted to individual citizens in both the civilian federal and state court systems.[18] For example, the right to counsel for the military member facing court-martial is not only grounded in the Sixth Amendment of the Constitution[19] but also in the UCMJ[20] and the MCM.[21] The right to counsel for members of the armed forces is one of the aspects that is broader than that afforded to most civilians, as all service members have a right to free military counsel regardless of ability to pay or possible sentence.[22] While the topic of military justice may not arise often for most criminal law practitioners, every Oklahoma attorney should be aware of some foundational concepts with the significant military presence that lies within Oklahoma.[23]

THE NECESSITY OF A CRIMINAL CODE WITH WORLDWIDE JURISDICTION

“At least since the harsh days of Gustavus Adolphus, governments have striven to strike a perceived balance of fairness in substantive and procedural law as applied to members of the military force, a balance which primarily takes into account the vital mission of the force itself. Often this balance is described in a specialized criminal code.”

– Gen. William C. Westmoreland and Gen. George S. Prugh[24]

The Fifth Amendment, the UCMJ and the MCM protect a service member from being tried twice for the same offense in an Article III federal district court and by the Article I military court. As a practice note, the Air Force has extended, by regulation, this “jeopardy” protection to trial by state courts as well,[25] and the Army has adopted the policy that prosecutions will not “ordinarily” be tried by court-martial or punished by the UCMJ for a same act already punished by civilian state courts.

The crimes subject to military justice include any crime contained in the UCMJ, as well as those incorporated through the penumbra of the Assimilated Crimes Act.[26] The need for a separate justice system arose out of the necessity for “good order and discipline” in the armed services and the need for a system of military law with worldwide jurisdiction.[27] Because a member of the armed forces may be stationed overseas, there is a need for worldwide jurisdiction. In addition, due to the unique nature of military life, the civilian courts are not equipped to address those military-specific crimes codified such as absence without leave (AWOL), dereliction of duty, conduct unbecoming of an officer, disobedience, adultery, malingering, mutiny, insubordination, contempt toward officials (i.e., the president), subordinate compelling surrender, etc.

Those subject to the UCMJ include enlisted personnel, commissioned officers, inductees, cadets, retirees,[28] persons in military custody, prisoners of war (POWs), reservists in an active-duty status and even civilian personnel accompanying the armed forces in the “field” in time of war or when martial law is declared. Members of the National Guard are subject to the UCMJ when they are in federal status;[29] otherwise, they are subject to their respective state military codes when they are on active duty in their state status.[30] They are also subject to the jurisdictions of the local state, federal,[31] municipal and, for many in states like Oklahoma and for certain individuals, tribal laws of a Native American tribe.[32]

Additionally, many military reservations are subject to either exclusive federal jurisdiction, as most Army installations would subject any civilians to U.S. district court prosecution, [33] or concurrent jurisdiction of an Air Force base with civilian prosecution in state or federal court. It should be noted that while active-duty service members’ criminal acts are normally handled through the UCMJ, they may appear in federal court on the “petty offense docket” for on-post/base traffic violations. For example, a magistrate judge from the Western District of Oklahoma hears these matters arising at Fort Sill, Vance Air Force Base in Enid and Tinker Air Force Base in Oklahoma City. As a practice matter for the criminal defense bar, while driving under the influence of alcohol (DUI) is a specifically delineated offense under the UCMJ, many military installations have decided to retrocede those cases involving military members back to the federal magistrate judge for a civilian court prosecution.

THE PLAYERS IN THE MILITARY JUSTICE SYSTEM

“Discipline in an Army is like the law in a civil society. There can be no liberty in a commonwealth where the laws are not revered and most sacredly observed, nor can there be happiness or safety in an army for a single hour when discipline is not observed.”

– John Adams[34]

One notable distinction between the military and civilian systems is the charging decision or “prosecutorial discretion.” While a local prosecutor in the civilian criminal justice system holds that power, the initial charging decision for a court-martial resides with the accused’s commander as a “command-driven system.” While the commander is most often a nonlawyer, they have the benefit of advice from the unit’s assigned “JAG” as a legal advisor in the role of “trial counsel” (military prosecutor).

It should also be noted that, unlike a civilian prosecutor, a military commander and their command’s attorney also have far more tools in their prosecutorial “toolbox” on how to best address a matter that may otherwise be criminal or harmful to the “good order and discipline” with a military unit. Among these options, a commander has the discretion to choose no punishment, a letter of reprimand, nonjudicial punishment (which may include punishments that resemble what occurs in a court),[35] administrative separation[36] or some form of court-martial.

Of the various types of military tribunals, the general court-martial (GCM) is reserved for the most serious crimes.[37] A service member may only be sent before a GCM by order of the general court-martial convening authority (GCMCA)[38] The “convening authority” is normally one of the highest-ranking military officers on a base who has authority over “felony-level” misconduct concerning members of their command.[39] A GCM is for the most severe offenses and punishments and a “dishonorable discharge.” For example, at Fort Sill or Tinker Air Force Base, the “commanding general” serves as the GCMCA. The special court-martial is often looked at as the “misdemeanor level” as it is limited to confinement of one year and a “bad conduct discharge.”

While both the uniformed lawyers (the trial counsel and the defense counsel) are members of the Judge Advocate General’s Corps,[40] the appointed military defense counsel is in a part of a “stovepipe” organization independent of a commander’s influence.[41] This protects the independence of military defense counsel from fear of suffering in career progression for advocating zealously for their clients.[42] Other noteworthy individual players include the staff judge advocate (SJA),[43] who is the top lead lawyer at any given military installation; a legal specialist (paralegal/court reporter); and/or those in military law enforcement, like the military police/security forces, the criminal investigation division (CID) and/or Naval Criminal Investigative Services.

The final major role is that of the military judge. Prior to the Military Justice Act of 1968,[44] the “judge” in a court-martial did not have to be a lawyer.[45] Under the current system, however, the military judge is a lawyer who is a criminal law specialist, as there is no system of civil courts in the military.[46] A military judge is usually a senior judge advocate with proven experience in military criminal justice.

THE PRELIMINARY HEARING (ARTICLE 32 HEARING)

The Fifth Amendment right to a grand jury indictment, by its express terms, is not applicable to service members,[47] just as it does not require an indictment by a grand jury in state courts.[48] In place of the grand jury, the military provides that an individual may not be tried by a GCM unless there has been a thorough investigation.[49] The Article 32 preliminary hearing has been compared to a civilian grand jury investigation[50] and bears a resemblance to a federal preliminary hearing and Oklahoma’s preliminary hearing in the district courts.[51] The Article 32 preliminary hearing accomplishes several things. Among them is the protection of the service member from baseless charges,[52] early defense discovery[53] and assisting the convening authority in determining whether to refer (send forward) charges to a GCM, recommend dismissal or utilize a lesser disposition (a letter of reprimand, etc.).

COURTS-MARTIAL PRACTICE AND PROCEDURE

A GCM is very similar to a civilian criminal trial. The military counsel (the prosecution and the assigned defense counsel) appear in uniform, but the military judge wears the traditional robe.[54] As in civilian courts, a meeting is held with the judge and opposing counsel for a pretrial conference[55] to coordinate the trial. These conferences are held by phone or in person but are not used to resolve contested issues. Contested motions and formal arraignment are held on the record in the courtroom in “Article 39(a) sessions.”[56] These sessions are held outside the presence of the “panel” (jury) members but are open to the public. At the arraignment portion of the Article 39(a) session, the accused must state on the record their plea, choice of counsel and the forum to decide their case (judge-alone, panel with all officers or a panel with a mixture of officers and enlisted).

In military courts-martial, accused service members do not have a Sixth Amendment right to a trial by jury.[57] As considered an “Article I court,” Congress put forth the qualifications for service by military members on courts-martial panels in the 1920 Articles of War,[58] which Congress then incorporated into the UCMJ as Article 25 upon its enactment in 1950.[59] The military jury “panel” has been described as a “blue ribbon” jury with a guarantee of various viewpoints not necessarily found in civilian courts.[60] Whereas an Oklahoma civilian jury on a state case or a federal jury venire is selected by voter registration rolls or lists of actual voters,[61] the convening authority for a specific military installation is who initially selects military court panel members.[62] Selection to “jury service” as a panel member is based upon statutorily required age, education, training, experience, length of service and temperament.

An accused has the right to have their case decided by either a judge alone or a “panel.”[63] The panel members are also members of the military (peers from the same community) appointed to this special duty by the convening authority. The panels selected are normally mature and responsible officers with long military command experience. If the accused is enlisted, they are also entitled to either have a panel of all officers or a panel consisting of one-third of enlisted personnel.[64] An accused and their counsel will have the opportunity to voir dire the panel members for any prejudices and can challenge members for cause or use the one peremptory challenge to exclude any member for any reason. While voir dire may occur with the removal of a panel member pursuant to a peremptory strike or for “cause,” that panel member will not be replaced, and the panel will be reduced in numbers. A quorum can be declared with as little as five members sitting for a general court-martial and three members for a special court-martial.

The trial on the merits portion of the case is much like a civilian case. After a selection of panel members (if not a judge-alone trial), both sides may give opening statements, present their case with witnesses and evidence, cross-examine witnesses, call rebuttal witnesses and give closing arguments. Also, like civilian courts, the rules of evidence do apply. Referred to as the Military Rules of Evidence or informally as “MREs,” they mirror the Federal Rules of Evidence (FRE)[65] with minor variations.

With the exception of a sentence of death, a court-martial verdict of either guilt or innocence may be less than unanimous.[66] Therefore, military jury panels at a GCM may consist of only five members.[67] Sentences of death require a unanimous panel vote,[68] sentences of more than 10 years of confinement require a three-fourths vote among panel members, and all other sentences require a two-thirds vote.[69] In addition, unlike a civilian state or federal court jury, a “hung jury,” a panel that cannot reach a verdict, is not allowed. While court-martial panel members are usually made up of different ranks, the use of superior rank in the deliberation room as a means of pressure on another panel member is prohibited. Also, a quorum can be declared with as few as five members sitting for a GCM.

GUILTY PLEAS AND SENTENCING

In the military, a guilty plea by an accused is far more involved than guilty plea practices in civilian courts. While the U.S. Supreme Court has held that a defendant may constitutionally plead to enter an “Alford plea,”[70] and most civilian courts also allow a plea of “nolo contendere” (no contest), a military accused can only enter a plea of either “not guilty” or “guilty.” Before a judge can find an accused guilty, they must go through a lengthy and in-depth “providence inquiry” that may last several hours as a part of allocution to ensure the accused is factually guilty and that there are no possible defenses.[71] As with the federal system, and most state systems other than Oklahoma, an accused military member, except in the matter of capital cases, will be sentenced by a military judge in all special and general courts-martial.[72]

At sentencing, the trial court holds an open and extended sentencing hearing rather than relying on a written presentence report. This extended hearing plays a part in the unique aspect of the military justice system of how the pretrial agreement (the deal) between the government and the accused is handled. First, the “deal” itself is sealed and not revealed initially to the judge and places a “cap” on the sentence that can be imposed by the judge.[73] In other words, a sentencing hearing becomes a game of “beat the deal” by defense counsel. If the trial judge imposes a lesser sentence than what was agreed upon in the pretrial agreement, the accused gets the benefit of that lesser sentence. If the military judge imposes a more severe sentence than what is contained in the pretrial agreement, then the sentence is limited to what was agreed upon.

APPEALS AND POST-CONVICTION REMEDIES

Another benefit enjoyed by the military accused is the multiple “bites at the apple” in appellate rights. If an accused is convicted, the Rules for Court-Martial once again provide free military counsel on appeal regardless of indigence.[74] Counsel on appeal is a different individual than the military counsel at trial, thus serving as a check on the effectiveness of the counsel at the trial level. Unlike civilian courts, the military appellate courts have the plenary authority to review de novo both the findings (legal and factual) and the sentence.[75]

The first opportunity at an appeal is through a request for clemency from the one who authorized the court-martial in the first place, the convening authority at that specific military installation. The convening authority can reduce the punishment or throw out the conviction in toto.[76] The service member has one appeal as a matter of right to each of the respective service’s Court of Criminal Appeals. After that, the appeal may be taken to the U.S. Court of Appeals for the Armed Forces (CAAF), which is composed of civilian judges.[77] As the court of last resort, the service member may petition the U.S. Supreme Court, on application for writ of certiorari, to hear the case.[78]

CONCLUSION

“It is the function of the courts to make sure ... that the men and women constituting our Armed Forces are treated as honored members of a society whose rights do not turn on the charity of their military commander ... A member of the Armed Forces is entitled to equal justice under law not as conceived by the generosity of a commander but as written in the Constitution.”

– Justice William O. Douglas, 1968

Stepping into a military courtroom is an opportunity that civilian counsel should not shy away from. Oklahoma’s military tradition, whether on the battlefield or in a military courtroom, is a proud one. A civilian attorney retained to assist a member of the armed forces at a court-martial is an opportunity to represent our true national treasure, our men and women in uniform serving our country.

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ABOUT THE AUTHOR

Robert Don Gifford II is an Oklahoma City attorney who began his legal career as an active-duty Army judge advocate (JAG Corps) and remained in the Army Reserve until he retired as a colonel in 2019 with 23 years of active and Reserve service. He is a graduate of the OU College of Law and the U.S. Army War College at Carlisle Barracks, Pennsylvania.

 

 

 

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ENDNOTES

[1] While allegedly attributed to Julius Henry “Groucho” Marx, the more likely source of the statement is Georges Clemenceau, a late 19th to early 20th century French politician. See Thomas G. Becker, “Military Justice Is to Justice What Military Music Is to Music:" Anatomy of an Apocryphy or How to Get Kicked Out of a Cocktail Party (Assuming You're Invited in the First Place), 41 The Reporter 21 (2014). cf. L.H. Larue, “What is the Text in Constitutional Law: Does it Include Thoreau,” 20 Ga. L. Rev. 1137, 1142, n.2 (1986).

[2] F. Lee Bailey, For the Defense, p. 38, Atheneum (1976) ("The fact is, if I were innocent, I would far prefer to stand trial before a military tribunal governed by the Uniform Code of Military Justice than by any court, state or federal.").

[3] Sherman, Military Laws (1880), reprinted in Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. Of the House Comm. On Armed Services, 81st Cong., 1st Sess. 1276 at 780 (1949).

[4] Lawrence J. Morris, Military Justice: A Guide to the Issues at 2 (2010).

[5] In Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court held that jurisdiction of a court-martial depends solely on the accused’s status as a member of the armed forces.

[6] See Preamble, Manual for Courts-Martial, United States, (2023 ed.); see also, U.S. Dep’t of Army, Army Reg. 600–20, Army Command Policy ¶4-12 (July 24, 2020) (“It is the commander’s responsibility to maintain good order and discipline in the unit. Every commander has the inherent authority to take appropriate actions to accomplish this goal.”); U.S. Air Force Instruction No. 1-1, Air Force Culture, (Aug. 18, 2023), (“Maintaining good order and discipline is paramount for mission accomplishment.”).

[7] Created by an executive order (EO) of the president of the United States, the MCM sets out the Rules for Courts-Martial, Military Rules of Evidence, Non-Judicial Punishment, the Punitive Articles of the Uniform Code of Military Justice (UCMJ) and commentary. The most recent edition is the MCM, 1984 (1998 edition).

[8] Article I, Section 8, Clause 14 (“The Congress shall have Power ... [t]o make Rules for the Government and Regulation of the land and naval Forces”); Article II, Section 2 (“The President shall be Commander in Chief of the Army and Navy of the United States.”).

[9] R.C.M. 201-204.

[10] See Knox, A Statement of the Troops in the Service of the United States (1789), in 16 American State Papers, Class V – 1 Mil. Aff. 6 (W. Lowrie and M. Clarke eds. 1832), as quoted in “Military Justice and Article III,” 103 Harv. L. Rev. 1909 (1990).

[11] The Marine Corps became part of the Navy by virtue of the Act of June 30, 1834. Thus, the Marine Corps was governed by the Articles for the Government of the Navy (also referred to as “Rocks and Shoals”) until the enactment of the UCMJ. The Navy JAG Corps was established in 1967. The Coast Guard, established in 1790 as the “Revenue Cutter Service” within the Department of the Treasury, later under Department of Transportation, and currently the Department of Homeland Security and is the smallest of the Armed Forces, was governed by a system modeled after the Navy.

[12] 10 U.S.C. §§801-946.

[13] Each branch of service has its own appellate court. For example, an Army court-martial would first be appealed to the Army Court of Criminal Appeals (ACCA), which consists of three Army judges (senior active-duty judge advocates); an Air Force court-martial to the Air Force Court of Appeals; and for both the Navy and Marine Corps, to the Navy-Marine Corps Court of Appeals.

[14] A subsequent appeal from one of the service’s appeal courts may be made to the Court of Appeals for the Armed Forces (CAAF), which is made up of five civilian judges who serve 15-year terms with no more than three judges from any political party and selected by the president of the United States and the Supreme Court. Prior to October 1994, this court was known as the United States Court of Military Appeals (CMA or COMA).

[15] See, e.g., Army Regulation (AR) 27-10, Military Justice, provides the policies and procedures for the Army; likewise, Dep’t of Air Force, Reg. No. 111-1, Military Justice, Military Justice Guide; Dep’t of Navy, Manual of the Judge Advocate General (JAGMAN); Dep’t of Transportation, Coast Guard, Military Justice Manual, COMDTINST M5810.1A; as well as each military installation may also have a “local regulation” with supplemental guidance.

[16] The Army’s Judge Advocate General’s School and Learning Center in Charlottesville, Virginia, publishes The Army Lawyer, as well as The Military Law Review; the Naval Justice School publishes the Naval Law Review and the Air Force has the Air Force Law Review. The Journal of Military and Veterans Law is published by the Judge Advocates Association and is available online at www.jaa.org.

[17] Military court decisions are published in the Military Justice Reporter (cited as “MJ”) and are available through online research services such as Lexis and Westlaw.

[18] Weiss v. United States, 510 U.S. 163, 194 (1994)(“a system of military justice that is notably more sensitive to due process concerns than the one prevailing through most of our country’s history”) (concurrence, J. Ginsburg).

[19] U.S. Const. amend. VI.

[20] UCMJ, Article 27; 10 U.S.C. 827.

[21] R.C.M. 503(c); R.C.M. 506; Mil. R. Evid. 305(d)(2).

[22] The Army’s “public defenders” fall under Trial Defense Service, the Air Force’s defenders are referred to as “Area Defense Counsel,” and the Navy/Marine Corps has the “Legal Services Command.” See United States v. Davis, 20 M.J. 61 (C.M.A. 1985); United States v. Nicholson, 15 M.J. 436 (C.M.A. 1983).

[23] Robert Don Gifford, “A Military Primer for the Oklahoma Attorney: Groucho was Wrong About Military Justice,” OBJ, Vol. 82, No. 31, p. 2711 (Nov. 19, 2011); see also Robert Don Gifford, “Stepping Onto the Battlefield: A Military Justice Primer for the Oklahoma Attorney,” OBJ, Vol. 71, No. 29, p. 2479 (Oct. 7, 2000).

[24] Harvard Journal of Law and Public Policy 1 (1980).

[25] Air Force Regulation 51-201.

[26] 18 U.S.C. §13. Applicable state crimes not codified in the UCMJ may be incorporated through the Assimilated Crimes Act and Article 134 of the UCMJ.

[27] The legal basis for the military justice system originates from the U.S. Constitution, Article I, Section 8, Clause 14: “The congress shall have the power ... [t]o make Rules for the Government and Regulation of the land and naval Forces.”

[28] Army Regulation 27-10, Chapter 5, para 5-2 proscribes the policy not to try retirees unless extraordinary circumstances are present.

[29] 10 U.S.C. §672.

[30] 44 O.S. §3112, et al.

[31] Due to reasons of double jeopardy and the military’s need for “good order and discipline,” the Department of Defense and the Department of Justice entered into a memorandum of understanding (MOU) in 1984 that discusses who would normally handle criminal prosecutions of active-duty service members, with the Department of Defense addressing the majority of offenses. See DOJ Criminal Resource Manual (CRM) 669, 938, 1629; DOJ Justice Manual (JM) 9-42.530; and DoD Instruction 5525.07 (March 5, 2020).

[32] In 1950, Congress exercised its power to provide one statute to govern the armed forces. It is currently codified at 10 U.S.C. §§801-946. There are 145 articles in the UCMJ. The individual sections are commonly referred to by their enumerated article, e.g., Article 134.

[33] There is a 1984 memorandum of understanding between the Department of Justice (DOJ) and the Department of Defense (DoD), implemented at DoD Directive 5525.7, that spells out that the military courts will assume primary jurisdiction over a service member who commits a crime within the military confines.

[34] Jonathon Lurie, Military Justice in America: The U.S. Court of Appeals for the Armed Forces, 1775-1980 at p. 3 (rev. and abr. ed., University Press of Kansas 2001) (1992).

[35] The drafters of the UCMJ recognized a commander’s necessity to punish minor offenses by promulgating a means to adjudicate offenses quickly without going to court-martial. Also known as “Captain’s Mast,” “NJP” and “Office Hours” in the other armed services, Article 15 of the UCMJ and its provisions are located in the MCM at Part V, 10 U.S.C. §815, as well as Chapter 3 of AR 27-10 for the Army.

[36] Army administrative actions include, but are not limited to, formal and informal counseling (AR 600-20 and 635-200), para 1-18), corrective training (AR 600-20, para 4-6b), revocation of pass privileges (AR 600-8-10, chap 5, section XIV), letters of reprimand (AR 600-37, AR 25-400-2, para B-80), bar to reenlistment (AR 601-280), removal from the promotion list (AR 600-8-19, para 3-28 and 4-18), administrative reduction of rank (AR 600-8-19, chap 6) and personnel separations-enlisted personnel (AR 635-200).

[37] As well as the adverse administrative and nonjudicial punishments that service members are subject to, there are also summary courts-martial (no punitive discharge and limit on confinement), special court-martial (also known as a “straight special”) and bad conduct discharge (“BCD” aka “Big Chicken Dinner”) special court-martial (limited to a BCD and six months confinement). The GCM can award any authorized punishment, including death in capital cases. The GCM requires a military judge, at least five panel (jury) members, trial and defense counsel. See UCMJ Art. 16 and 18, 10 U.S.C. §§816 and 818.

[38] A “commander” is the commanding officer of certain military units. See 10 U.S.C. §822 (1988).

[39] The military has many different forms of punishment – administrative, judicial and nonjudicial. The civilian practitioner should be aware of these lesser forms to effectively plea bargain if necessary to help prevent a conviction on the servicemember’s record.

[40] The Coast Guard uses the term “law specialists,” but it is the equivalent of the JAG officers in the other services. The exception is that Coast Guard law specialists are all line officers and are not part of a separate “corps.”

[41] The Air Force created an Area Defense Counsel program, the Army has a Trial Defense Service, and the Navy has a Legal Services Command. See United States v. Davis, 20 M.J. 61 (C.M.A. 1985); United States v. Nicholson, 15 M.J. 436 (C.M.A. 1983).

[42] UCMJ, Article 37(b), 10 U.S.C. §837(b).

[43] The SJA is usually a senior military attorney with extensive and broad experience and usually supervises a large staff of attorneys and serves as the legal advisor to the convening authority. Although similar to a district attorney or the U.S. attorney, final decisions to go forward to a GCM or to grant clemency are made by the convening authority. Though usually the senior attorney at any given military installation, the SJA does not supervise or have the authority to influence the military defense counsel stationed there. See UCMJ Art. 34 and 60(d), 10 U.S.C. §§834 and 860(d).

[44] Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335 (1968).

[45] See generally, Wayne L. Friesner, “Military Justice and the Military Justice Act of 1968: How Far Have We Come?” 23 Sw. L.J. 554, 568–69 (1969).

[46] The military judge is usually a senior military attorney appointed by and working directly for the judge advocate general and thus independent of any local military chain of command. See UCMJ Art. 1 and 26, 10 U.S.C. §§801 and 826.

[47] U.S. Const. Amend. V. “No person shall be held to answer for ... (a) crime, unless on a presentment or indictment of a Grand Jury except in cases rising in the land or naval forces, or in the Militia, when in actual service in time of War.”

[48] Hurtado v. California, 110 U.S. 516 (1884).

[49] An accused servicemember can waive their right to an Article 32 investigation for strategic purposes and/or as a tool in plea negotiations.

[50] Okla. Const. Art. II, §18, 22 O.S.A. §351, et al., Rule 6 of the Federal Rules of Criminal Procedure.

[51] 22 O.S. §258.

[52] Talbot v. Toth, 215 F.2d 22 (D.C. Cir. 1954); See Gaydos, “A Comprehensive Guide to the Military Pretrial Investigation,” 111 Mil. L. Rev. 49 (1986).

[53] United States v. Roberts, 10 M.J. 308 (C.M.A. 1981); R.C.M. 405(a) discussion.

[54] In the Army, Air Force and Coast Guard, the judges wear black judicial robes, although the Navy and Marine judges still appear in their military uniform.

[55] R.C.M. 802 governs these meetings in chambers.

[56] UCMJ, Art. 39(a).

[57] United States v. Anderson, No. 22-0193 (C.A.A.F. June 29, 2023), citing Ex parte Milligan, 71 U.S. 2, 123 (1866); Ex parte Quirin, 317 U.S. 1, 40 (1942); and Whelchel v. McDonald, 340 U.S. 122, 127 (1950).

[58] The Articles of War of 1920, art. 4 (June 4, 1920) reprinted in Manual for Courts-Martial, United States (1921 ed.), app. 1, at 494, available at www.loc.gov/item/2011525334.

[59] Report of the Military Justice Review Group, Part I 252 (Dec. 22, 2015) [MJRG Report].

[60] See also United States v. Youngblood, 47 M.J. 338, 346 (C.A.A.F. 1997)(Crawford, J., dissenting) (citations omitted).

[61] The Jury Selection and Service Act of 1968 (JSSA) codified at 28 U.S.C. §§1861-1878 (1994), is to implement the Sixth Amendment’s fair-cross-section requirement.

[62] UCMJ 25(d)(2), 10 U.S.C. §825(d)(2).

[63] “Panel” is a military term of art for a jury.

[64] UCMJ Art. 25(c), 10 U.S.C. 825(c).

[65] The federal rules are applied in all civilian federal trials and in at least 27 state courts.

[66] While the U.S. Supreme Court has stated that juries of fewer than six members are unconstitutional, see Ballew v. Georgia, 435 U.S. 223, 245 (1978), and that six-person juries must return unanimous verdicts, see Burch v. Louisiana, 441 U.S. 130 (1979), it has not reconsidered its 1942 validation of military panels in Ex Parte Quirin, 317 U.S. 1 (1942).

[67] 10 U.S.C. §829(b) (1988).

[68] UCMJ, Art. 52, 10 U.S.C. §852.

[69] 10 U.S.C. §852.

[70] North Carolina v. Alford, 400 U.S. 25 (1970).

[71] R.C.M. 910(c).

[72] National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81 [FY22 NDAA], §539E, 135 Stat. 1541 (2021).

[73] R.C.M. 705(b).

[74] R.C.M. 1202, 1204(b)(1) and 1110(b).

[75] UCMJ Article 66(c), 10 U.S.C. §866(c).

[76] UCMJ Art. 61, 66-67a, 10 U.S.C. §§861, 866-867a.

[77] This three-member judiciary is nominated by the president and confirmed by the Senate, however, not tenured because the CAAF is an Article I court in contrast with the civilian Article III courts.

[78] This right was initiated with the Military Justice Act of 1983 and codified at UCMJ art. 67(h); see also R.C.M. 1205.