FEBRUARY 2025 | 15 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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 Adams34 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 separation36 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
RkJQdWJsaXNoZXIy OTk3MQ==