Military Criminal Justice System
INSIGHTi
Military Criminal Justice System
November 2, 2021
Background
Military law comprises federal law, constitutional authority, and inherent command authority. It is meant
to promote justice, efficiency, and discipline in the armed services. Jurisdiction under military law is
based on the U.S. Constitution and relevant aspects of international law. Military law jurisdiction is
exercised through four distinct forums: (1) courts-martial, (2) courts of inquiry, (3) military commissions,
and (4) non-judicial punishment proceedings (10 U.S.C. §§815, 816, 935).
Throughout the 1940s, Congress received evidence of military justice maladministration. The primary
concerns were the system’s lack of due process and independence. Congress responded to these concerns
by enacting the Uniform Code of Military Justice (UCMJ) in 1950, which applies to each armed service
and replaced the prior military justice system.
The punitive articles in the UCMJ are military law offenses (10 U.S.C. §§877-934). Many of the punitive
articles are criminal conduct offenses that have a referent offense in modern penal codes or historical
common law (e.g., rape, murder, robbery). Other punitive articles are military misconduct offenses that
have a referent offense in medieval chivalric codes or Roman military practices (e.g., mutiny, desertion,
cowardice).
Judge Advocates
Each armed service has a senior legal officer known as the Judge Advocate General (JAG) (10 U.S.C.
§801(1)) who is the principal legal officer responsible for military justice matters. The attorneys whom
they appoint to serve as legal officers throughout the service are responsible for implementing the military
justice system (10 U.S.C. §806). When serving as a military justice practitioner, the roles and functions of
these judge advocate officers resemble those of attorneys in a civilian criminal justice system.
Although legislative reforms establishing the UCMJ relied on civilian criminal law and procedure as a
model, the reforms also preserved many historical attributes of military justice, such as a commander’s
discipline and disposition authority. This meant that while the UCMJ replicated a civilian criminal justice
system overal , the reforms did not al ow military lawyers to make decisions regarding the criminal
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prosecution of servicemembers. Prosecutorial discretion remained a function of command, and lawyers
continued to serve as advisors to commanders regarding their prosecutorial authority.
Investigation
Department of Defense (DOD) policy states that only entities with statutory law enforcement or criminal
investigatory authority may conduct criminal investigations. Each armed service has a military criminal
investigative organization (MCIO). MCIOs must identify a service nexus before initiating a criminal
investigation. This nexus is a reasonable likelihood that an al eged or suspected offense is related to
service personnel, activities, or instal ations. If a serious offense with a service nexus is al eged, including
a sexual offense, an MCIO must investigate the al egation.
Al commanders have authority to conduct inquiries into military justice matters. The form of such
inquiries can range from an administrative investigation to a court of inquiry. Commanders must conduct
preliminary inquiries into al egations that a servicemember committed an offense. However, MCIO
investigations preempt commander inquiries, and other paral el investigations, and commanders are
required to report al eged or suspected sexual offenses to an MCIO.
Prosecution
Upon completion of an inquiry or investigation, a commander makes an initial determination regarding
the al egations. For certain sexual offenses, initial determination is restricted to the first officer in the
chain of command who is in pay grade O-6 (37 U.S.C. §201(a)(1)) and a special court-martial convening
authority (10 U.S.C. §823(a)). Initial determination options are
take no action;
initiate administrative discipline;
impose non-judicial punishment;
initiate disposition of charges; or
forward for disposition of charges.
There are three levels of courts-martial, each with a corresponding level of convening authority: general,
special, and summary (10 U.S.C. §816). Special and general courts-martial try criminal conduct offenses
analogous to misdemeanors and felonies, respectively, but they may also try minor misconduct offenses.
A summary court-martial adjudicates minor military misconduct offenses.
Among the various military justice procedures, certain sequential steps must occur before a military
offense can be prosecuted in a trial by court-martial. A proper authority
must first prefer charges (press charges, provide notice to the accused); and
may then refer the charges to a court-martial (present charges, serve them upon the
accused); and
may then convene a court-martial (conduct a trial to adjudicate the charges against the
accused).
If the initial determination is to prefer charges or forward for disposition, a superior commissioned officer
may subsequently determine to dismiss the charges or to refer any or al of the charges to a court-martial,
as authorized. A general court-martial referral cannot be made before the convening authority obtains
legal advice from a staff judge advocate (10 U.S.C. §834). A court-martial must be convened for each
referral of charges, because unlike civilian criminal courts, which typical y are standing courts, a court-
martial is a temporary activity established by a convening authority to conduct a trial for specific charges.
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(For more information regarding prosecutions under the UCMJ, see CRS Report R46503, Military
Courts-Martial Under the Military Justice Act of 2016, by Jennifer K. Elsea and Jonathan M. Gaffney)
Incarceration
Servicemembers who receive a sentence of confinement may be confined in any facility under the control
of an armed force or the United States, or a place the United States may use (10 U.S.C. §858). Such
confinement typical y occurs in a military confinement facility (MCF), unless a military offender is
subsequently transferred to a federal civilian facility. According to the Annual Correctional Report issued
by each armed service, the total MCF population at the beginning of 2021 was 1,180 military offenders
(759 military sex offenders and 421 other military offenders; 64% and 36%, respectively). Military
offenders transferred to a Bureau of Prisons (BOP) facility as military inmates are not included in the
Annual Correctional Report data. As of May 2021, 247 military inmates were held in BOP facilities (116
military sex offenders and 131 other military offenders; 47% and 53%, respectively).
Author Information
Alan Ott
Analyst in Defense and Intelligence Personnel Policy
Disclaimer
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