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COURTS-MARTIAL
A court-martial is a military criminal trial. It is a temporary trial court that is created, or "convened," by the convening authority (commander) to hear a specific case. The court is not part of the civilian federal judiciary and is strictly a court of criminal jurisdiction.
The first step in prosecuting a military criminal case is preferring sworn charges against an accused. Anyone subject to the Uniform Code of Military Justice (U.C.M.J.) may serve as an accuser and prefer charges. However, the accuser and the convening authority cannot be the same person. Typically, a commander's subordinate, often the command's legal officer, will swear to the charges after the commander directs the drafting of the charge sheet, DD Form 458. A charge sheet lists the specific article of the U.C.M.J. that the accused is alleged to have violated. Each punitive article constitutes a separate charge, while each specific alleged act is a specification. For example, violating U.C.M.J. 112(a), the prohibition on illegal drug use and abuse, would give rise to one charge. If the charge sheet alleges three separate acts of drug use, then the charge will have three specifications of the charge.
The convening authority ultimately prepares the convening order that specifies the type of court-martial (summary, special, or general), the date of the hearing, the names of the members (jurors), and the names of the trial and defense counsel. In the case of a general court-martial, the convening authority must first appoint an investigating officer in accordance with Article 32 of the U.C.M.J. See also McNabb on the Article 32 Hearing-What an Accused and His Family Needs to Know.
The general court-martial is the highest trial level in military law. Depending upon the choice of the accused, it may be composed of a military judge sitting alone or of at least five members (jurors) with a military judge presiding. An accused found guilty at a general court-martial will be punished in accordance with the punitive provisions of the specific charge(s) in his case. An accused found guilty may be ordered to pay a fine and suffer a loss of benefits. He may also receive either a dishonorable discharge or a bad conduct discharge, or, in the case of officers or commissioned warrant officers, a dismissal. Confinement, sometimes substantial, is a possible outcome of a general court-martial. In espionage, murder, and similar cases, punishment options include life imprisonment and death.
100% of the firm's practice is fighting general courts-martial.
The special court-martial is the intermediate court in the military's judicial structure. It is composed of at least three members sitting with or without a judge. Any service-member may be tried by a special court-martial for any non-capital offense. Maximum punishments from this proceeding include confinement for one-year, a bad-conduct discharge, pay forfeiture, fines, and reduction to the next inferior pay-grade. An accused cannot receive a bad-conduct discharge, confinement for more than six months or forfeiture of pay for more than six months unless the accused had counsel, a verbatim record of the trial was made, and a military judge presided over the proceeding. The Army additionally requires that a general court-martial convening authority convene the special court-martial.
A summary court-martial is designed to dispose of minor offenses in a simplified proceeding. It consists of one commissioned officer who might be a lawyer, but this is not a requirement. The accused, whose consent is required for this type of court-martial, is normally not represented by a lawyer. The Supreme Court of the United States, in a case decided in 1976, characterized the summary court-martial as a "disciplinary" proceeding where the conduct would not be considered criminal in the civilian community. Only enlisted service-members may be tried by summary court-martial. Potential punishments include one-month confinement or hard labor without confinement for forty-five days and/or forfeiture of a portion of pay. Enlisted service-members in pay grade E-4 or higher may not receive confinement, hard labor without confinement, or reduction to the next inferior pay grade.
Unlike civilian federal criminal trials, the sentencing at a court-martial involves the fact finder. If a court composed of members finds the accused guilty after a "not guilty" plea, then those members will sentence the accused. If the accused pleads guilty, then, depending on the accused's prior choice between a trial by military judge alone or by members, either the military judge or the members will sentence him. The sentencing procedure normally begins immediately after the verdict is announced. It therefore behooves counsel for both sides to be prepared to move directly into the sentencing phase if a verdict of guilty is rendered. Not all jurors must agree. Conviction and sentencing require a two-thirds majority, except for sentences of more than ten-years confinement or death. To sentence an accused to more than ten years confinement, three-fourths of the members must agree. There must be a unanimous decision to impose the death penalty. Guilty verdicts in a general court-martial are subject to automatic appeal.