Defense Primer: The Uniform Code of Military Justice (UCMJ)

Defense Primer: The Uniform Code of Military Justice (UCMJ)

November 16, 2016
Defense Primer: The Uniform Code of Military Justice (UCMJ)
Under Article I, Section 8 of the U.S. Constitution,
accused refuses to consent to a trial by summary court-
Congress has the power to raise and support armies;
martial, a trial may be ordered by special or general court-
provide and maintain a navy; and provide for organizing
martial, as may be appropriate, at the discretion of the
and disciplining their members. Under this authority,
Convening Authority (CA). A summary court-martial can
Congress has enacted the Uniform Code of Military Justice
adjudge maximum punishments of 30 days’ confinement;
(UCMJ), which is the code of military criminal laws
hard labor without confinement for 45 days; restriction to
applicable to all U.S. military members worldwide.
specified limits for 45 days; forfeiture of two-thirds’ pay
per month for one month; and reduction to the lowest pay
The President implemented the UCMJ through the Manual
grade. In the case of enlisted members above pay grade E-4,
for Courts-Martial (MCM), which was initially prescribed
the summary court-martial may not adjudge confinement or
by Executive Order 12473 (April 13, 1984). The MCM
hard labor without confinement, and can only reduce the
contains the Rules for Courts-Martial (RCM), the Military
member to the next lower pay grade.
Rules of Evidence (MRE), and the UCMJ. The MCM
covers almost all aspects of military law. Military courts are
Special Courts-Martial
not considered Article III courts, but instead are established
The special court-martial can try any servicemember for
pursuant to Article I of the Constitution and, as a result, are
any noncapital offense or, under presidential regulation,
of limited jurisdiction.
capital offenses. Special courts-martial generally try
offenses that could be considered misdemeanors under
Jurisdiction
civilian or federal law (offenses punishable by less than one
The UCMJ gives courts-martial jurisdiction over
year in confinement). The accused is entitled to an
servicemembers as well as several other categories of
appointed military attorney or a military counsel of his or
individuals. Jurisdiction of a court-martial does not depend
her selection (at no cost to the servicemember), or the
on where the offense was committed; it depends solely on
accused can personally hire and pay for a civilian counsel.
the status of the accused (e.g., an active duty
Regardless of the offenses tried, the maximum punishment
servicemember or a member of the National Guard when in
allowed at a special court-martial is confinement for one
federal service).
year; hard labor without confinement for up to three
months; forfeiture of two-thirds’ pay per month for up to
Types of Offenses
one year; reduction in pay grade; and a bad-conduct
Courts-martial try “military offenses,” which are listed in
discharge.
the punitive articles of the UCMJ and are codified in 10
U.S.C. §877 et seq. Some “military offenses” have a
General Courts-Martial
civilian analog, while others are exclusive to the military.
A general court-martial is the highest trial level in military
The President is authorized to prescribe the punishments
law, and is usually used for the most serious offenses. Prior
that a court-martial may impose within the limits
to convening a general court-martial, a preliminary hearing
established by Congress. For offenses specifically not
must be conducted. Known as an Article 32 hearing, it is
covered by the UCMJ, the Armed Forces have used Article
meant to ensure that there is a basis for prosecution. As
134 to assimilate state and federal criminal laws in order to
with the special court-martial, the accused is entitled to an
impose court-martial jurisdiction. The potential
appointed military attorney or a military counsel of his or
punishments for such violations generally match those
her selection (at no cost to the servicemember), or the
applicable to the corresponding civilian offense.
accused can personally retain and pay for civilian counsel.
It can adjudge, within the limits prescribed for each offense,
Types of Courts-Martial
a wide range of punishments to include confinement;
Congress, in creating the military justice system,
reprimand; forfeitures of up to all pay and allowances;
established three types of courts-martial: (1) summary,
reduction to the lowest enlisted pay grade; punitive
(2) special, and (3) general. While the promulgated RCM
discharge (bad-conduct discharge, dishonorable discharge,
and the MRE are applicable to all courts-martial, the
or dismissal); restriction; fines; and, for certain offenses,
jurisdiction and authorized punishments vary among the
death.
different courts-martial types.
Post-Trial Review
Summary Courts-Martial
Convictions at a general or special court-martial that
The summary court-martial can adjudicate minor offenses
include a punitive (bad-conduct or dishonorable) discharge
allegedly committed by enlisted servicemembers. Summary
are subject to an automatic post-trial review by the CA.
courts-martial are composed of one commissioned officer
Upon review of the record of trial and the Staff Judge
who need not be a lawyer. The accused must consent to the
Advocate’s recommendation, the CA may, among other
proceedings and normally is not entitled to a lawyer. If an
remedies, suspend all or part of the sentence, disapprove of
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Defense Primer: The Uniform Code of Military Justice (UCMJ)
a finding or conviction, or lower the sentence. The CA may
not increase the sentence. Once the CA takes action on the
case, the conviction is ripe for an appeal.
The 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)
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.
If the conviction is affirmed by the service court, the
appellant may request review by the Court of Appeals for
the Armed Forces (CAAF) and ultimately the U.S. Supreme
Court. Review by these courts is discretionary.
All court-martial convictions not reviewable by the service
appellate courts are reviewed by a judge advocate to
determine if the findings and sentence, as approved by the
CA, are correct in law and fact. If those criteria are met, the
conviction is final. If not, the judge advocate forwards the
case to the officer exercising general court-martial
convening authority at the time the court-martial was
convened for corrective action. If the CA declines to take
corrective action, the case is referred to the Judge Advocate
General for review.
Relevant Statutes
Title, 10, Chapter 47—The Uniform Code of Military Justice,
United States Code

Other Resources
The Manual for Courts-Martial, available at https://www.loc.gov/rr/
frd/Military_Law/CM-manuals.html

CRS Products
CRS Report R41739, Military Justice: Courts-Martial, an Overview, by
R. Chuck Mason

R. Chuck Mason, rcmason@crs.loc.gov, 7-9294
IF10504
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