Order Code RS21850
May 26, 2004
CRS Report for Congress
Received through the CRS Web
Military Courts-Martial: An Overview
Estela I. Velez Pollack
Legislative Attorney
American Law Division
Summary
The recent reports of abuse of prisoners held by the military in Iraq have raised
questions about how the armed forces discipline and punish those who commit crimes
or violate the rules and regulations of the military. Congress, under the authorities
vested in it, enacted a code of military laws, the Uniform Code of Military Justice
(UCMJ). The President, by Executive Order, has, in turn, established standards and
procedures for prosecuting violators of the UCMJ and certain other laws. Military
criminal courts are known as courts-martial. This report provides an overview of
military courts-martial: who can be tried, potential punishments, and the appeals
process.
Background
Under Article I, sec. 8 of the U.S. Constitution, Congress has the power to raise and
support armies; provide and maintain a navy; and provide for organizing and disciplining
them. Under this authority, the Congress has enacted the Uniform Code of Military
Justice (UCMJ),1 the code of military criminal laws applicable to all military members
worldwide. The President implemented the UCMJ through the Manual for Courts-Martial
(MCM), which was prescribed by Executive Order 12473 (April 13, 1984). The Manual
for Courts-Martial contains the Rules for Courts-Martial (RCM), the Military Rules of
Evidence (MRE),2 and the UCMJ The MCM covers almost all aspects of military law.3
Military criminal trial courts are known as courts-martial. Military courts are not
considered Article III courts but instead are established pursuant to Article I of the
1 Codified in 10 U.S.C. §§ 801-941.
2 Rules of procedure and rules of evidence for courts-martial are established by the President as
authorized by Art. 36, UCMJ (10 U.S.C. § 836).
3 Each military service supplements the MCM to meet its individual needs. The Army has Army
Regulation 27-10; the Navy and Marine Corps have the Manual for the Judge Advocate General;
and the Air Force has Air Force Instructions.
Congressional Research Service ˜ The Library of Congress

---

CRS-2
Constitution.4 This report provides an overview of military courts-martial. It does not
cover administrative disciplinary options such as nonjudicial punishments.5
Jurisdiction
In order to be tried by a court-martial, the court-martial must have jurisdiction over
the person. Jurisdiction of a court-martial does not depend on where the offense was
committed. Rather, it depends solely on the status of the accused as a member of the
armed forces on active duty, whether in the regular or reserve component.6 In addition
to servicemembers, several other categories of individuals may be tried by courts-martial
including retired members of a regular component of the armed forces entitled to pay;
retired members of a reserve component who are hospitalized in a military hospital;
persons in custody of the military serving a sentence imposed by a court-martial; members
of the National Oceanic and Atmospheric Administration and Public Health Service and
other organizations, when assigned to serve with the military; enemy prisoners of war in
custody of the military; and persons with or accompanying the military in the field during
“times of war,” limited to declared wars.7
Types of Offenses
Courts-martial try “military offenses,” which are listed in the punitive articles of the
UCMJ and are codified in 10 U.S.C. 877 et seq.8 Some “military offenses” have a civilian
analog, but a number of “military offenses” are specific to the military.9 The President
is authorized to prescribe the punishments which a court-martial may impose within the
limits established by Congress.10 In addition, a servicemember may be tried at a court-
martial for offenses not specifically covered by the UCMJ Article 134–General Article11
states that all “crimes and offenses not capital, of which persons subject to this chapter
may be guilty, shall be taken cognizance of by a general, special, or summary court-
martial, according to the nature and degree of the offense.” This means that any state or
federal offense for which there is no analogous crime in the UCMJ may be assimilated
4 Article III of the U.S. Constitution addresses the judicial powers of the United States and
contains certain requirements such as life tenure for judges. Article I of the U.S. Constitution
addresses the legislative powers of the United States which are vested in the Congress. Article
I courts are not subject to all the structural and procedural requirements that pertain to Article III
courts.
5 Nonjudicial punishment allows military commanders to discipline servicemembers for minor
offenses without having to face a court-martial. It is frequently referred to as “Article 15's,”
because of the relevant UCMJ article. Art. 15, UCMJ; 10 U.S.C. § 815.
6 See Solorio v. United States, 483 U.S. 435, 447 (1987).
7 Art. 2, UNIFORM CODE OF MILITARY JUSTICE, MCM (2002 ed.); 10 U.S.C. § 802.
8 The punitive articles run from Arts. 77 through 134 of the UCMJ; 10 U.S.C. §§ 877-934.
9 Military specific offenses include mutiny or sedition (Art. 94, UCMJ); insubordinate conduct
(Art. 91, UCMJ); failure to obey an order (Art. 92, UCMJ); cruelty and maltreatment (Art. 93,
UCMJ); and misconduct as a prisoner (Art. 105, UCMJ).
10 Art. 56, UCMJ;10 U.S.C. § 856.
11 10 U.S.C. § 934.

---

CRS-3
and tried at a court-martial. The potential punishments for violations of Article 134 are
the same as the punishments applicable to the corresponding civilian offense.
Investigation
When a servicemember has reportedly committed an offense, the accused’s
immediate commander will conduct an inquiry into the alleged offense.12 This inquiry
will vary according to the offense(s) alleged and the complexity of the case. It may range
from an examination of the charges and an investigative report or summary of expected
evidence to a more extensive investigation. The investigation may be conducted by
members of the command or, in more complex cases, military and civilian law
enforcement officials. Once evidence has been gathered and the inquiry is complete, the
commander can choose to dispose of the charges by (1) taking no action, (2) initiating
administrative action,13 (3) imposing nonjudicial punishment, (4) preferring charges, or
(5) forwarding to a higher authority for preferral of charges.14 Preferral of charges is the
first formal step in a court-martial. Preferral of charges consists of drafting a charge sheet
containing the charges and specifications15 against the accused. The charge sheet must
be signed by the accuser16 under oath before a commissioned officer authorized to
administer oaths.17 Once charges have been preferred they may be referred18 to one of
three types of courts-martial: summary, special or general.19 The seriousness of the
offenses alleged generally determines the type of court-martial. The court-martial must
be convened by the convening authority,20 who will generally be the commissioned
officer, or successor, in command of the unit the accused is attached to.21
Types of Courts-Martial
Summary Courts-Martial. The summary court-martial can adjudicate minor
offenses allegedly committed by enlisted servicemembers. It can adjudge maximum
punishments of thirty days confinement, hard labor without confinement for 45 days,
restriction to specified limits for 45 days, forfeiture of two-thirds pay per month for one
month, and reduction to the lowest pay grade. In the case of enlisted members above pay
12 RCM 303.
13 Administrative action can include separation from the military. See 10 U.SC. §§ 1161 et seq.
14 RCM 306(c).
15 A specification is a plain and concise statement of the essential facts constituting the offense
charged. RCM 307(c)(3).
16 Any person subject to the UCMJ may prefer charges as the accuser. RCM 307(a).
17 RCM 307(b).
18 Referral is the order that states that charges against an accused will be tried by a specific court-
martial. RCM 601.
19 See RCM 401(c).
20 RCM 504.
21 RCM 103(6).

---

CRS-4
grade E-4,22 the summary court-martial may not adjudge confinement or hard labor
without confinement and can only reduce them to the next lower pay grade.23 Summary
courts-martial are composed of one commissioned officer who need not be a lawyer.24
The accused must consent to the proceedings25 and normally is not entitled to a lawyer.26
Special Courts-Martial. The special court-martial can try any servicemember for
any noncapital offense or, under presidential regulation, capital offenses.27 This court-
martial can be composed of a military judge alone, three members,28 or a military judge
and three members.29 Contrary to civilian criminal trials, only two-thirds of the members
of a court-martial need to agree as to the guilt of the accused for the accused to be found
guilty. Otherwise, the accused is acquitted.30 There are no “hung juries” in courts-
martial.
Regardless of the offenses tried, the maximum punishment allowed at a special
court-martial is confinement for one year, hard labor without confinement for up to three
months, forfeiture of two-thirds pay per month for up to one year, reduction in pay grade
and a bad-conduct discharge.31 Most often special courts-martial will try offenses
considered misdemeanors. The accused is entitled to an appointed military attorney, a
military counsel of his or her selection, or he or she can hire a civilian counsel at no
expense to the government.32
22 Paygrade E-4 consists of corporals or specialists (Army), petty officers 3rd class (Navy),
corporals (Marine Corps), and senior airman (Air Force).
23 RCM 1301; Art. 20, UCMJ; 10 U.S.C. § 820.
24 Art. 16, UCMJ; 10 U.S.C. § 816.
25 Art. 20, UCMJ; 10 U.S.C. § 820.
26 Middendorf v. Henry, 425 U.S. 25 (1970).
27 Arts. 16 & 19, UCMJ; 10 U.S.C. §§ 816, 819; RCM 201(f)(2)(A).
28 Members in the military justice system are the equivalent of jurors and are generally composed
of officers from the accused’s command.
29 The accused has the right to choose the composition of the court-martial or whether he or she
chooses to be tried by a military judge alone, a military judge and members or a panel of
members. Enlisted servicemembers have the choice to request that the member’s panel include
enlisted members. RCM 903.
30 RCM 921(c). The same is applicable to general courts-martial with the exception of offenses
where the death penalty is mandatory, which require a unanimous verdict. Art. 52, UCMJ; 10
U.S.C. § 852.
31 Art. 19, UCMJ; 10 U.S.C. § 819; RCM 201(f)(2)(B). A bad-conduct discharge, confinement
for more than six months, or forfeiture of pay for more than six months, may only be adjudged
if a complete record of the proceedings and testimony has been made, defense counsel was
appointed, and a military judge presided over the court-martial. If a military judge could not be
appointed, a detailed written statement stating the reasons why must be submitted by the
commander who convened the court-martial.
32 Art. 27, UCMJ; 10 U.S.C. § 827.

---

CRS-5
General Courts-Martial. A general court-martial is the highest trial level in
military law and is usually used for the most serious offenses. It is composed of a military
judge sitting alone, or five members and a military judge.33 It can adjudge, within the
limits prescribed for each offense, a wide range of punishments to include confinement,
reprimand, forfeitures of up to all pay and allowances, reduction to the lowest enlisted
paygrade, punitive discharge (bad conduct discharge, dishonorable discharge or
dismissal), restriction, fines and, for certain offenses, death.34 The accused is entitled to
an appointed military attorney or a military counsel of his or her selection, or the accused
can hire a civilian counsel at no expense to the government.
Prior to the convening of a general court-martial, a pretrial investigation, more
commonly known as the Article 32 hearing, must be conducted. The Article 32 hearing
is the equivalent of a civilian grand jury, meant to assess the truth of the charges to ensure
that there is a basis for prosecution.35 An investigating officer, who must be a
commissioned officer,36 presides, and the accused has the same entitlements to counsel
as in a special courts-martial. However, unlike in a civilian grand jury investigation
where the accused has no access to the proceedings, the accused is afforded the
opportunity to examine the evidence presented against him, cross-examine witnesses and
present his own arguments.37 If during the course of the investigation evidence surfaces
that the accused committed an offense not charged, the investigating officer can
recommend that more charges be brought against the accused.38 Likewise, if the
investigating officer believes that there is not enough evidence to support a charge, he can
recommend that it be dismissed.
Once the Article 32 investigation is complete, the investigating officer will make
recommendations to the convening authority (CA) via the CA’s legal advisor. The legal
advisor in turn, provides the CA with a formal written advice, known as the Article 34,
UCMJ advice, as to the disposition of charges. The CA then determines whether to
convene a court-martial or dismiss the charges.39
Post-Trial Review
One of the unique aspects of the military justice system is the post-trial review by the
CA. For convictions at a general or special court-martial that include a punitive
33 Art. 16, UCMJ The accused has the right to choose who he or she will be tried by with the
exception of capital cases where members are required. See note 29, supra. and RCM
201(f)(1)(C).
34 RCM 1003. It must be noted that there are restrictions on allowable punishments depending
on a person’s status as an officer or an enlisted servicemember.
35 Art. 32, UCMJ; 10 U.S.C. § 832.
36 RCM 405(d)(1).
37 Art. 32(b)-(c), UCMJ; 10 U.S.C. § 832(b)-(c); RCM 405(f).
38 Art. 32(d), UCMJ; 10 U.S.C. § 823(d); RCM 405(e).
39 Art. 33-35, UCMJ; 10 U.S.C. §§ 833-835; RCM 407.

---

CRS-6
discharge,40 the process starts with the review, the staff judge advocate (SJA), and a
recommendation to the CA as to what action to take on the case. This is recognized as
the accused’s best hope for relief as the CA has broad powers to act on the case.41 Upon
review of the record of trial and the SJA’s recommendation, the CA may, among other
remedies, suspend all or part of the sentence, disapprove a finding or conviction or lower
the sentence.42 The CA may not increase the sentence. Once the CA takes action on the
case, the conviction is ripe for an appeal.
In the case of summary court-martial or a court-martial where the service appellate
courts do not have jurisdiction,43 convictions will be reviewed by a judge advocate44 to
determine if the findings and sentence, as approved by the CA, are correct in law and
fact.45 If those criteria are met, the conviction is final. If not, the judge advocate will
forward the case to a general court-martial CA for corrective action.46 If the CA refuses
to take corrective action, the case is referred to the Judge Advocate General for review.
Appellate Review
Convictions by a special or general court-martial are subject to an automatic 47 appeal
to a service Court of Criminal Appeals if the sentence includes confinement for one year
or more, a bad-conduct or dishonorable discharge, death, or a dismissal in the case of a
commissioned officer, cadet or midshipman.48 Appeal is mandatory when the sentence
includes death. If the conviction is affirmed by the service court, the appellant may
request review by the Court of Appeals for the Armed Forces49 and ultimately the U.S.
Supreme Court.50 Review by these courts is discretionary.
40 There are two kinds of punitive discharges: bad-conduct discharge and dishonorable discharge.
41 United States v. Davis, 58 M.J. 100, 102 (2003).
42 Art. 60, UCMJ; 10 U.S.C. § 860; RCM 1107.
43 There are three service appellate courts: the Navy-Marine Corps Court of Criminal Appeals,
the Army Court of Criminal Appeals and the Air Force Court of Criminal Appeals. A service
appellate court will have jurisdiction in cases where the sentence includes confinement for one
year or more, a bad-conduct or dishonorable discharge, death, or a dismissal from service in the
case of a commissioned officer, cadet or midshipman. Art. 66, UCMJ; 10 U.S.C. § 866.
44 Art. 64, UCMJ; 10 U.S.C. § 864; RCM 1111, 1112 and 1306.
45 Art. 64, UCMJ; 10 U.S.C. § 864; .RCM 1112.
46 Art. 64(c)(3), UCMJ; 10 U.S.C. § 864(c)(3); RCM 1112.
47 Military appellate courts are required to review cases over which they have jurisdiction unless
the appellant waives his or her right to appeal. An appellant may not waive his right to appeal
when the sentence includes death. RCM 1110.
48 Art. 66, UCMJ; 10 U.S.C. § 866.
49 See Art. 67, UCMJ; 10 U.S.C. § 867. The Court of Appeals for the Armed Forces (CAAF)
is a civilian court composed of five civilian judges appointed by the President.
50 Congress did not grant the U.S. Supreme Court jurisdiction over decisions of the CAAF until
1984. Military Justice Act of 1983, P.L. 98-209, 97 Stat. 1393, 28 U.S.C. § 1259.

---