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In the military justice system there are three types of court-martial – General Court-Martial, Special Court-Martial, and Summary Court-Martial. Only General Courts-Martial and Special Courts-Martial are actual federal criminal trials; Summary Courts-Martial are, essentially, enhanced administrative hearings that do not result in a federal criminal conviction because they do not afford a military accused the same due process rights as required for an actual federal criminal trial. Therefore, the remainder of this page will only address General Courts-Martial and Special Courts-Martial.
The military does not label offenses as “felonies” or “misdemeanors.” A General Court-Martial or Special Court-Martial conviction is considered, and described as, a federal criminal conviction. In terms of possible sentences for conviction, however, a General Court-Martial is sometimes viewed to be roughly similar to a felony trial and a Special Court-Martial is sometimes viewed to be roughly similar to a misdemeanor trial.
In the military, court-martial trials are governed by the Manual for Courts-Martial (MCM), which contains the Uniform Code of Military Justice (UCMJ), Rules for Courts-Martial (RCM) and the Military Rules of Evidence (MRE). Each service branch has its own rules of criminal trial procedure as well. The UCMJ is the criminal code applicable to all military members.
If a military member faces a General Court-Martial or Special Court-Martial, the military accused will be appointed a military defense lawyer in his/her branch of service. The military accused also has the right to hire a civilian defense attorney. If a civilian criminal defense lawyer is hired, the military defense lawyer will remain on the case, and will act as the civilian defense lawyer’s co-counsel.
Military members face considerable jeopardy in court-martial trials – possible federal criminal conviction, and possible court-martial sentences including confinement in military prison/jail, punitive discharge (Dishonorable Discharge, Bad Conduct Discharge or Dismissal for officers), and a variety of other legal, professional, personal, and family consequences. In cases alleging sex crimes, for example, the military member could face sex offender registration.
Defending military members in court-martial trials is what our civilian court-martial defense lawyers do. The only type of law they handle is military law. Mr. Stevens and Mr. Spinner are civilian criminal defense attorneys and former military JAG lawyers who exclusively defend military members stationed around the world who are facing military trials, discipline and investigations. If you’re facing military court-martial allegations, don’t hesitate to seek the legal help you’re going to need. For a free initial case consultation, please contact us.
General Court-Martial trials and Special Court-Martial trials are presided over by Military JudgesA military accused facing a General Court-Martial or Special Court-Martial gets to choose the forum for his/her trial – who will decide his/her case. A military accused’s case in a court-martial trial can be judged by a Military Judge alone or before court members (military “jury” called a panel). If the military accused goes to trial before court members, the rank of those court members is dependent upon the rank of the accused. An enlisted accused can choose a panel of all officer court members or a panel that includes enlisted court members. If an enlisted accused chooses a panel that includes enlisted court members, at least 1/3 of the court members must be enlisted, and they all must outrank the accused, at least by date of rank. If an officer accused chooses a court-martial before court members, those court members must be officers and they all must outrank the accused, at least by date of rank. A General Court-Martial requires no fewer than five court members. A Special Court-Martial requires no fewer than three court members.
On a court-martial charge sheet there will be one or more “charges” and one or more “specifications.” A court-martial “charge” is the Article of the UCMJ that was allegedly violated. A court-martial “specification” is a description of the distinct alleged criminal act. All specifications fall under the charged UCMJ Article. So, for example, there could be one charge of Larceny under UCMJ Article 121, and several specifications under that charge that describe each specific claim of theft under that charge.
Procedurally, initial court-martial charging is called “preferral” of court-martial charges. This is when the accused military member is first formally charged. Then, if the appropriate Court-Martial Convening Authority determines the preferred charges and specifications should be heard in a court-martial trial, those charges and specifications are then “referred” to trial by court-martial. Any charges and specifications decided in a court-martial trial have been both preferred then referred to trial by court-martial.
In this type of military criminal court, the jurisdictional maximum sentence you can receive, if you are found guilty of any or all specifications (allegations), is whatever sentence is authorized by UCMJ law for each separate specification you are found guilty of. In other words, each specification you face has a maximum imposable punishment according to the UCMJ; the maximum punishments for each specification you are convicted of are totaled up to reach the maximum jurisdictionally authorized sentence in the case. A General Court-Martial punishment can include confinement time (military jail/prison), hard labor without confinement (enlisted), forfeitures of pay and allowances, a fine, a reprimand, reduction in rank to E-1 (enlisted) and/or a punitive discharge – Dismissal (officer cases) or a Dishonorable Discharge or Bad Conduct Discharge (enlisted cases). The minimum authorized punishment for most General Courts-Martial is no punishment at all. So, for most General Courts-Martial, the authorized range of punishments for conviction runs from no punishment at all to the jurisdictional maximum authorized for the offenses the military member is convicted of.
There are exceptions to this general description, such as conviction for non-capital premeditated murder (mandatory life in prison, no lesser confinement term is authorized). The death penalty is authorized for certain offenses under the UCMJ, such as Premeditated Murder with aggravating factors (UCMJ Article 118), Spying (UCMJ Article 106), Espionage in certain circumstances (UCMJ Article 106a), Desertion in time of war (UCMJ Article 85) and some other select offenses under special circumstances.
In order for preferred charges and specifications to be referred to trial by General Court-Martial, the case must first be considered in an Article 32 Preliminary Hearing (UCMJ Article 32 and RCM 405). In an Article 32 hearing, an appointed Preliminary Hearing Officer (PHO) considers the case (witnesses and evidence) and makes non-binding recommendations about his/her view of whether there is probable cause, how the case was, or should be, charged, and how the case should be resolved (a court-martial or some other course of action, to include dropping the case). These non-binding recommendations are then considered in the referral decision. An Article 32 hearing is not required for a Special Court-Martial.
In this type of military criminal court, the jurisdictional maximum sentence you can receive, if you are enlisted and you are found guilty of any or all specifications, is a Bad Conduct Discharge, confinement for 1 year (military jail/prison), forfeitures of 2/3 pay per month for 1 year, and reduction in rank to E-1. As with most General Courts-Martial, the minimum authorized punishment for Special Courts-Martial conviction is no punishment at all. Although a military officer technically can face trial by Special Court-Martial, that occurs very rarely because the maximum authorized punishment in a Special Court-Martial for an officer is significantly limited; for example, an officer facing a Special Court-Martial cannot be sentenced to a punitive discharge (Dismissal) or reduction in rank.
The bottom line with all of this information is that military courts-martial are federal criminal trials and they are very serious. You should treat them as such. You need to make the best decisions to protect and defend yourself and to try to obtain the results you hope to achieve, including winning the case if possible. The first step in that process is to receive quality, experienced legal advice. Our Civilian court-martial defense lawyers provide free initial case consultations and advice based on their years of military law and military justice experience.