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Chapter 17

MILITARY LAW

EVOLUTION OF THE UNIFORM CODE OF MILITARY JUSTICE

Our system of military justice came into existence with the first Continental Armies during the Revolution, in 1775. At that time the British Army was regulated by the Mutiny Act and the British Articles of War, with which the colonists were familiar. When the need suddenly arose for raising and disciplining an army, the British articles were used as a guide in preparing the American Articles of War.

From the time when the initial Articles were drafted (by a committee under the chairmanship of General Washington) until after the cessation of hostilities in World War I, there were no fundamental changes in the Articles of War, although from time to time they were slightly modernized. In 1920, however, Congress enacted sweeping changes. The fundamental effect was to remove the operation of military justice from the control of line officers without legal training and to place its administration under the general supervision of The Judge Advocate General, by establishing an

automatic appellate review system and other safeguards.

Following World War II the Secretary of War convened a special board, headed by Dean Arthur T. Vanderbilt of New York University Law School, to make a report on the administration of justice during the war. The committee, after a prolonged study, found that the overall administration of military justice had been excellent, but recommended, among other things, further safeguards of the rights of accused persons and an increase in the number of Judge Advocate personnel. Legislation to enact these recommendations was presented to the 80th Congress. Title II of the Selective Service Act of 1948 amended 43 of the existing 121 Articles of War.1

The Judge Advocate General at once took measures to implement the new Articles. They included the preparation of a revised Manual for Courts-Martial effective on 1 February 1949, measures for ascertaining and certifying to the qualifications of officers qualified to

1 Some of the salient features of this revision wereEnlisted personnel were authorized to sit as members of general and special courts-martial upon a written request of an accused enlisted person.

The authority of commanding officers to impose nonjudicial disciplinary punishment officers and warrant officers, but not as to enlisted men.

Officers became subject to trial by special court-martial.

Qualified lawyers were required as law members of general courts-martial.

was extended as to

In all general court-martial cases the legally appointed defense counsel had to be a lawyer if the trial judge advocate was a lawyer.

An accused was entitled to counsel at the pretrial investigation.

A bad conduct discharge, considered less onerous than a dishonorable discharge, could be adjudged by general and special courts-martial.

Automatic appellate review was redefined, and the power of confirmation of a sentence, except in cases involving the death sentence and cases involving general officers, was vested in the Secretary of the Army, The Judge Advocate General, and a Judicial Council composed of three general officers of The Judge Advocate General's Corps.

Provision was made for granting new trials upon petition of accused persons within one year after final appellate action, or within one year after termination of World War II.

A lesser sentence than death or life imprisonment was authorized for unpremeditated murder and rape. Specific provisions were made to prevent coercion or undue influence upon members of a court in their consideration of any caso.

act as law members, and procurement of additional judge advocates required to implement the Articles of War.

of

Meantime, however, Secretary of Defense Forrestal had appointed (in July 1948) a special committee, under the chairmanship Professor Edmund Morgan, Jr., of Harvard Law School, to draft a code of military justice for all of the Armed Forces. The committee's seven months' study resulted in H. R. 2498, a bill to provide a uniform code of military justice ("UCMJ"). The code is uniformly applicable to the Army, Navy, Air Force, and Coast Guard. It covers both the substantive and the procedural law governing military justice and its administration in all of the Armed Forces. Insofar as the Army is concerned it supersedes the Articles of War, and is the sole statutory authority for: (1) the imposition of disciplinary penalties for offenses without judicial action; (2) the establishment of pretrial and trial procedure; (3) the creation and contribu

tion of three types of courts-martial, summary, special, and general; (4) the eligibility of members of each of the courts and the qualifications of law officers and counsel; (5) the review of findings and sentence and the constitution of reviewing tribunals; (6) the enumeration and definition of offenses.

On 5 May 1950, the President signed "An Act to unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard, and to enact and establish a Uniform Code of Military Justice." This code went into effect, generally, on 31 May 1951. On the same date the President prescribed the Manual for Courts-Martial, United States, 1951, to implement the Code.

Although Congress, in codifying Title 10 of U. S. Code, effected some minor language changes in the Uniform Code of Military Justice, no substantive change has been enacted since 5 May 1950.

PUNITIVE ARTICLES OF THE CODE

The Uniform Code of Military Justice is divided into 11 subchapters containing 140 articles. These subchapters, or basic groups, are: General Provisions, Apprehension and Restraint, Nonjudicial Punishment, Court-Martial Jurisdiction, Composition of Courts-Martial, Pre-trial Procedure, Trial Procedures, Sentences, Review of Courts-Martial, Punitive Articles, and Miscellaneous Provisions.

Of the 140 articles only 58 are punitive articles, that is, provisions which explain in detail the offenses that are punishable by courts-martial. Although these offenses run the gamut from a feigned illness calculated to avoid KP to premeditated murder, they may be generally classified into three groups:

(1) military offenses, such as absence without leave, desertion, willful disobedience of orders, misbehavior before the enemy, and misbehavior of sentinel; (2) crimes common to both civil and military law, such as murder, rape, arson, burglary, larceny, and forgery; and (3) a general group of offenses, not otherwise specifically provided for, which may be described as "conduct unbecoming an officer and a gentleman," "all disorders and neglects to the prejudice of good order and discipline in the armed forces," and "all conduct of a nature to bring discredit upon the armed forces."

To form a trained, effective, ready military unit from a group of individuals banded together by their oath of en

2 Among the provisions designed to secure uniformity are the following: (1) the offenses made punishable by the code are identical for all the services; (2) the same system of courts, with the same judicial limitations for each court, is set up in all the services; (3) the procedure for general courts-martial is identical as to the institution of charges, pretrial investigation, action by the convening authority, review by the board of review, and review by the Court of Military Appeals; (4) the rules of procedure at trial are equally applicable to all the services; (5) the Judge Advocates General of the three military departments are required to make uniform rules of procedure for the boards of review in each department; (6) the required qualifications for members of the court, law officers, and counsel are identical for all the Armed Forces; (7) the Court of Military Appeals, which finally decides questions of law, is the ultimate appellate tribunal for each of the Armed Forces, and acts with the Judge Advocates General of the three departments as an advisory body, with a view toward securing uniformity in policy and in discovering and remedying defects in the system and its administration.

listment requires that the individuals be physically present to perform their duties unless they are properly absented; that they respond quickly and unfailingly to the lawful orders of their superiors; and that they abide by the standards of conduct established for them. These are fundamental duties, willingly assumed by most soldiers, inspired through leadership in others, and instilled through fear of punishment in a few. However, to insure proper performance of military duties in all cases, the military offenses have been incorporated in the Code. For example, the military offenses of fraudulent or unlawful enlistment, appointment or separation, desertion, and absence without leave are designed to guarantee that individuals are at their proper places of duty. The offenses of contempt toward officials, disrespect toward superior officer, assaulting or willfully disobeying officer, insubordinate conduct toward noncommissioned officer, failure to obey regulation, mutiny, sedition, and subordinate compelling surrender are intended to insure the proper functioning of the chain of command, so essential to the successful operation of a military unit. The offenses of cruelty and maltreatment toward subordinates, unlawful detention of another, noncompliance with procedural rules, misbehavior before the enemy, improper use of countersign, forcing a safeguard, misuse of captured or abandoned property, aiding the enemy, misconduct as prisoner, spying, making false official statement, willfully or through neglect losing, damaging, or destroying property of the United States, improper hazarding of vessel, misbehavior of sentinel, and malingering are included in the

Code so as to provide that all soldiers will abide by the standard of conduct established for them.

Article 14 of the Code provides that the Secretary of the Army (in the case of Army personnel) may prescribe regulations providing for the delivery of a member of the Army to the civil authority of a State, upon request, for the trial of an offense which is punishable under the law of that particular State. It is the policy of the Department of the Army that a member of the Army will not be shielded from a just prosecution solely because of his status as a member of the Army. With respect to extradition from one State to another, military personnel are considered to be in the same status as persons not members of the Army.

The general articles (Articles 133 and 134) are the "catch-all" provisions in military law. They are designed to insure that violations of military practice, usage, or custom, and service-discrediting violations of Federal and State law, do not go unpunished even though such acts are not specifically enumerated in one of the other articles. To attempt to list, as specific offenses, all possible human acts that would violate the customs of the service or discredit the Armed Forces would be a burdensome and probably a vain task. Therefore Congress used the vehicle of the general articles to insure the complete coverage of all acts requiring military discipline. Examples of conduct condemned by the general articles are: failing to pay just debts, disloyal statements, drunk and disorderly conduct, unauthorized use of narcotics, use of false pass, breaking restriction, unclean uniform, and straggling.

OPERATION OF THE CODE

DISCIPLINE AND NONJUDICIAL PUNISHMENT. Military justice is based essentially on the premise that the least severe measures which can be effective should be employed to correct a wrong-doer.

The lowest form of punitive measure that may be employed by a commanding officer is that conferred upon him

by Article 15 of UCMJ, nonjudicial punishment. Under the authority of Article 15 any commanding officer may, for minor offenses, without the intervention of a court-martial, impose disciplinary punishments upon officers, warrant officers, and other personnel of his command. Whether an offense is to be considered "minor" depends upon

its nature, the time and place of commission, and the person committing it. An offense for which punishment of death or confinement at hard labor for one year or more may be adjudged is not a minor offense.

The procedure followed in using nonjudicial punishment is that the commanding officer, after ascertaining to his satisfaction by such investigation as he deems necessary that an offense cognizable by him under Article 15 has been committed by a member of his command, will notify such member of the nature of the offense and that he proposes to impose punishment under Article 15. The accused may refuse to accept nonjudicial punishment and demand trial; or he may accept nonjudicial punishment and submit such matters as he desires in mitigation, extenuation, or defense. The commanding officer, with respect to offenses for which no demand for trial is made, may impose the following punishments, in addition to or in lieu of admonition or reprimand

1. Upon officers and warrant officersa. Withholding of privileges for a period not to exceed two consecutive weeks; or

b. Restriction to certain specified limits, with or without suspension from duty, for a period not to exceed two consecutive weeks; or

c. If imposed by an officer authorized by the Uniform Code of Military Justice to convene a general court-martial, forfeiture of not to exceed one-half of one month's pay per month for a period not exceeding one month.

2. Upon other military personnel of his command

a. Either of the punishments preprescribed in la or b above; or

b. Extra duties for a period not to exceed two consecutive weeks, and not to exceed two hours per day, holidays included; or

c. Reduction to the next inferior grade if the grade from which demoted was established by the command or an equivalent or lower command; or

d. If imposed upon a person attached to or embarked in a vessel, confinement for a period not to exceed seven consecutive days; or

e. If imposed upon a person attached

to or embarked in a vessel, confinement on bread and water or diminished rations for a period not to exceed three consecutive days.

The accused will be informed of the punishment imposed as soon as practicable, and at the same time will be informed of his right to appeal from the punishment. A person punished who deems his punishment unjust or disproportionate to the offense may, through proper channels, appeal to the next superior of the commanding officer who imposed the punishment.

APPREHENSION AND RESTRAINT. If a member of the Army commits an offense, he may be taken into custody for the purpose of detaining him until charges are preferred against him. All officers, warrant officers, petty officers, noncommissioned officers, and military policemen and guards, when in the performance of their duties, may take a member of the service into custody provided there is a reasonable belief that an offense has been committed and that the person being detained committed it. In military law this is called "apprehension," while in civilian practice it is sometimes referred to as "police arrest."

After the offender has been apprehended, he may be placed in "arrest," or, if the circumstances require it, he may be confined in a guardhouse or stockade. The term "arrest" in this connection means only the moral obligation, on the part of the individual, arising out of an oral or written order from someone in authority limiting his personal liberty. There is no required form of the order placing a person in arrest, other than telling him, in effect, that he is in arrest and will confine himself to a particular area.

Instead of arrest, the accused may be simply restricted to a given area while awaiting trial. One who is restricted may continue to perform his usual duties, whereas a person in arrest is not permitted to perform any duty involving the exercise of command or the bearing of arms.

Article 97 of the Code provides that any person who arrests or confines another unlawfully will be subject to trial and punishment.

TYPES OF COURTS-MARTIAL. The code provides for three types, called summary, special, and general courtsmartial.

Summary Court-Martial. It consists of only one officer and is used for the prompt disposition of relatively minor offenses by a simple form of procedure. Officers, warrant officers, cadets, aviation cadets, and midshipmen are exempt from trial by summary court-martial, but all other personnel who are subject to court-martial jurisdiction may be thus tried. With the exception of capital offenses, any offense punishable under the Uniform Code of Military Justice may be tried by summary court-martial. A summary court-martial may not adjudge punishment greater than confinement at hard labor for one month, hard labor without confinement for two months, or forfeiture of twothirds of one month's pay.

Special Court-Martial. It consists of not less than three members. Any person who is subject to the jurisdiction of the Uniform Code of Military Justice may be tried by a special courtmartial for any noncapital offense. The maximum punishment which a special court-martial may adjudge is confinement at hard labor for three months, hard labor without confinement for six months, or forfeiture of two-thirds pay per month for six months.

Although it is not used at present in the Army, there is a provision in the Uniform Code of Military Justice which permits a special court-martial to adjudge a bad conduct discharge, provided a complete record of the proceedings and testimony before the court is made.

A distinction is made between the summary court-martial and the special court-martial as to capital cases. An offense for which the death penalty is permissible but not mandatory may be tried by a special court-martial, provided that the proper authority determines that the case is to be treated as "not capital." Such an offense can never be tried by a summary court under any circumstances.

General Court-Martial. It consists of not less than five members, and is the highest trial court provided for by the Uniform Code of Military Justice. It may

try any person who is subject to military jurisdiction, for any offense made punishable by military law. It may adjudge any punishment not forbidden by the Code, including the penalty of death when specified by the Code. The Code goes one step further and provides that a general court-martial may try and punish any person subject to trial and punishment by the law of war. (The law of war deals with the rights and obligations of persons who are classified as neutrals or belligerents, or those who are under military government or martial law; see also chapter 30.)

SAFEGUARDS FOR THE ACCUSED. The code provides many safeguards for the rights of an accused person. One is the provision for a law officer, required in all general courts-martial. He must be a trained lawyer who has been admitted to practice law in a Federal court or the highest court of a State, and has been certified by The Judge Advocate General of the Army as qualified to carry out the duties of law officer. His relation to the members of the court is much like that of a judge to a civilian jury. He sees to it that the law is observed while the trial is in process. Like a judge, he decides questions of law that arise during the trial, such as whether a certain piece of evidence may be admitted. Before the members of the court vote on whether a charge has been proved, he instructs them on various matters in the presence of the accused and his counsel. Like a civilian judge who does not deliberate or vote with the jury, the law officer does not deliberate or vote with the court.

Another right is the provision for enlisted persons to serve on courtsmartial of other enlisted persons. In any court-martial except the summary court-martial an accused enlisted person may demand in writing, before the court is convened, that at least onethird of the members of the court be enlisted personnel, if they are available. However, the enlisted members may not belong to the accused's unit.

Any one accused of violating the Uniform Code of Military Justice must be promptly informed of the charges against him. He has a right to refuse

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