What Are Possible Court-Martial Punishments?
What are the possible court-martial punishments? They vary, depending upon the type of court-martial you face, and the allegations you face. Summary courts-martial and special courts-martial have limits on the authorized punishment based on that type of court. For general courts-martial, the punishment limitations are based on what is authorized for each specific allegation you face. Any court-martial punishment at any level can have serious negative impacts on your military career and your future. You need the most effective defense possible to try to avoid or mitigate these negative impacts. No matter how long you planned on serving in the military, no one wants to end their military career based on a court-martial conviction. If convicted, court-martial punishments could include punitive discharge, jail time, and loss of rank, pay and/or benefits.
What is a Court-Martial?
This Military Criminal Trial Can Determine Your Future
A court-martial is the military’s version of a trial that determines whether you violated the UCMJ and, if so, what consequences you will face. The rules governing a court-martial are included in the MCM.
In the military justice system, there are three types of court-martial; a general court-martial (GCM), a special court-martial (SPCM), or a summary court-martial (SCM).
If you face a special or general court-martial in the military, some of your basic rights include the rights to:
- Legal representation by a military Judge Advocate (JAG), you can hire a civilian defense attorney at your own expense, or you can be represented by both
- Refuse to answer law enforcement or command questions
- Be free from unreasonable search and seizure of your property or your person
- A fair trial, as defined by applicable military law and the Constitution
When you serve in the military, you are subject to the Uniform Code of Military Justice (UCMJ). This body of military law governs all service branches, and the military justice system addresses and processes alleged violations of the law. The Manual for Courts-Martial (MCM) is the primary guide for the military justice system. The UCMJ and MCM define military crimes and offenses, punishment that can result if violations are found, procedural protections for those accused, and appeals if there is a court-martial conviction.
The UCMJ and MCM address crimes similar to those found in civilian law (robbery, theft, assault, rape, and murder) as well as uniquely military offenses such as being absent without leave (AWOL), maltreatment of subordinates, insubordination, and conduct unbecoming an officer and gentleman.
Article 15s and Summary Courts-Martial
Punishments for violations of the UCMJ, like civilian criminal law, depend on what allegations and provisions of the Code you have allegedly violated. One of the most common administrative disciplinary actions in the military is the Article 15. It is called an “Article 15” because it is authorized by Article 15 of the UCMJ. This disciplinary action is also called “nonjudicial punishment (NJP).” A commander in your chain of command can impose an Article 15 (NJP) in situations in which the command determines your alleged misconduct does not warrant a court-martial. Each military branch has regulations governing Article 15 (NJP) proceedings.
Generally, in Article 15 (NJP) proceedings, you have the right to present evidence in your defense or in mitigation. You have the right to present information from witnesses (either through testimony or statements and letters). You have the right to make an argument on your behalf. If you dispute the allegations but you are found “guilty” in an Article 15 (NJP) proceeding, or you plead guilty, you will face punishment. Being found “guilty” in an Article 15 (NJP) proceeding is not considered to be criminal conviction, and it cannot be reported as one.
After you receive notice of the Article 15 (NJP) outcome and punishment, you have the right to appeal the outcome of the Article 15 (NJP) and the punishment, and can request it be removed from your military records. If you are not successful with appeals within your chain of command, you can appeal the Article 15 (NJP) outcome to your service branch Board for Correction of Military Records (BCMR).
Unlike other military disciplinary actions, in most cases you have the right to decide whether you will accept your case being decided in the Article 15 forum. If you turn down an Article 15 (NJP), you are demanding your case be decided in a court-martial. This is a serious decision. You can, and should, consult with an attorney before deciding whether to accept or refuse an Article 15 (NJP).
Summary courts-martial (SCM) are not commonly used in the military, but they are available if commanders deem one appropriate. A summary court-martial is the lowest level of court-martial, and it is like a hybrid between an Article 15 and a more common court-martial, such as a special or general court-martial.
Unlike the other types of court-martial, in a summary court-martial you do not have the right to have an attorney present and you do not have the right to have the case determined by a military judge or jury. Instead, a summary court-martial is presided over by a commissioned military officer. The authorized punishments in a summary court-martial are also very limited. Because of these rights limitations, if you are found guilty in a summary court-martial, this is not considered to be a federal criminal conviction, and cannot be reported as one.
What Are General and Special Courts-Martial?
These Military Trials Provide You the Most Legal and Procedural Protections
There are two other more common types of military courts-martial with potentially more severe consequences. These courts-martial are considered federal criminal trials and a conviction in either of these courts-martial is considered to be a federal criminal conviction.
A special court-martial is normally convened to handle lower-level alleged military criminal offenses. This is similar to a misdemeanor court in the civilian system. The military does not classify offenses as “misdemeanors” or “felonies” however. Those labels are only used in civilian legal systems. A military conviction is considered a federal criminal conviction. Whether your state of residence considers your military conviction to be tantamount to a misdemeanor or felony is based on the law of your state of residence.
Special courts-martial and general courts-martial are federal criminal trials, and they provide the same general rights and procedural protections. A military judge presides over either type of court-martial. The case can be decided by either a military judge or military panel (military jury). The accused has the right to a defense attorney, the right to discovery, the right to file and argue motions, the right to call witnesses, the right to make arguments, and the right to present a defense case. If there is a conviction in the findings phase of the trial, the court-martial will then proceed into the sentencing phase.
Special courts-martial have limits on sentencing, which is why they are sometimes described as being like a misdemeanor court in the civilian system.
The most severe military offenses are decided in general courts-martial. This is the highest level of military trial court. Again, although the military does not classify offenses as “misdemeanors” or “felonies,” a general court-martial trial is often described as like a felony trial in the civilian system.
Just like in a special court-martial, a military judge presides over a general court-martial trial. Likewise, a general court-martial case can be decided by either a military judge or panel (military jury). The accused has the right to a defense attorney, the right to discovery, the right to file and argue motions, the right to call witnesses, the right to make arguments, and the right to present a defense case. If there is a conviction in the findings phase of the trial, the court-martial will then proceed into the sentencing phase.
The primary differences between a special court-martial and a general court-martial are the size of the court-martial panel (military jury) and the punishments authorized for a conviction. In the past, special courts-martial required no fewer than 3 military panel members and general courts-martial required no fewer than 5 military panel members. That has now changed for allegations after 2019.
Based on recent changes to the military justice system, general courts-martial now require 8 military panel members, which can be reduced to 6 or 7 members in certain circumstances. Capital cases require at least 12 military panel members. Special courts-martial now require no fewer than 4 military panel members, but there is also a new type of military judge alone special court-martial with specific sentencing limitations.
Unlike special courts-martial, an Article 32 hearing is required to proceed to a general court-martial trial. The recent changes to the military justice system have significantly impacted Article 32 hearings. These hearings are now probable cause hearings with limited rights to call witnesses and present evidence. The recommendations of the Article 32 Preliminary Hearing Officer are not binding.
The next step in the court-martial process is the decision by the Convening Authority about whether to refer the charges and specifications to trial by court-martial. If the Convening Authority decides to do this, the remainder of the court-martial charge sheet is filled out, and “referral” has taken place. A court-martial trial will now be scheduled.
If you are convicted in a special court-martial or general court-martial, your trial immediately proceeds to a sentencing phase. In a special court-martial, you could be sentenced to a punitive discharge, but the most serious punitive discharge you face is a Bad Conduct Discharge (BCD). In addition, while you could be sentenced to confinement in a special court-martial trial, that confinement could not exceed 1 year.
If you are an enlisted member convicted in a general court-martial, you could be sentenced to a Dishonorable Discharge (DD) or a Bad Conduct Discharge (BCD), depending on the allegations you face. An officer could be sentenced to a Dismissal, which is tantamount to a Dishonorable Discharge for an enlisted member.
Confinement limitations in a general court-martial trial are based on the allegations you face. Because general courts-martial deal with the most serious military offenses, sentences to confinement in non-capital cases could include many years up to life in prison, depending on the conviction.
Other punishments available in court-martial sentencing could include reduction in rank (enlisted only), forfeitures of pay and allowances, a fine (in certain types of cases), and reprimand.
While sex offender registration is not a punishment that is included in a court-martial sentence, if a military accused is convicted of a nonconsensual sex offense in the military justice system, that military member will likely be required to register as a sex offender based on the requirements of civilian law for such military convictions.
Court-Martial Clemency and Appeals
Special and general court-martial convictions are initially reviewed by the Convening Authority (CA) for a clemency determination. The Convening Authority is the senior officer who convened the court-martial. Based on recent changes in military law, Convening Authorities are severely limited in what types of post-trial clemency they can now grant. Clemency is addressed by Rule for Courts-Martial (RCM) 1106, 1109, 1110. Depending on the type of case and conviction, clemency could include disapproving the conviction or reducing the sentence. There are a very limited category of cases that applies to, however.
After the clemency phase, and depending on the outcome of the case, a court-martial conviction could go up on appeal to the service branch Court of Criminal Appeals. Each service branch has a military appeals court. Some military cases could further be appealed to the Court of Appeals for the Armed Forces (CAAF). Military court-martial cases can even be appealed to the U.S. Supreme Court, although it is rare for that court to take a military case.
In the post-trial clemency or appeal phase, the punishment can never be increased and made more severe.
Why Should I Hire an Attorney to Represent Me at a Court-Martial?
There Is Too Much at Stake Not to Have the Best Defense Representation Possible
The Law Offices of Richard V. Stevens defends military members in court-martial trials, military discipline, and military investigations. The firm exclusively handles military cases and only focuses on military law. Mr. Stevens is a former active duty JAG who has been handling military cases, on and off active duty, since 1995. He is joined by retired military judges Michael Coco and W. Shane Cohen. The combined experience of these three attorneys is more than six decades.
Even an administrative disciplinary action can derail or end a military career, damage or deny a military retirement, and impact the life and future of a military member. A court-martial conviction not only results in a federal criminal record, but could result in significant jail time, punitive discharge, and other serious punishments and consequences. The stakes are very high. That level of jeopardy calls for the most experienced and skilled defense representation. That is what this law firm provides.
Before the court-martial trial begins, the accused military member will select whether to have the case decided by a military judge alone, or by court members (like a civilian jury). If the military member is enlisted and chooses a trial by military court members, the accused can opt for the court member panel to include enlisted members. Members of a military court-martial panel must outrank the accused, at lease by date of rank. If the military member chooses to be tried in front of a military court-martial panel, the following process follows:
Get Help From Attorneys You Can Trust: The Law Offices of Richard V. Stevens, P.C.
If you are facing a military investigation, disciplinary action, or court-martial, the first step is to contact The Law Offices of Richard V. Stevens at 888-399-0693 for a free consultation. Our military defense lawyer can discuss your situation and you can decide if we are the right attorneys for you.