FEBRUARY 2025 | 19 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. 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. Jonathan 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 25-4002, 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 courtsmartial (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.
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