What Is the Court-Martial Process?

A court-martial is criminal trial in the military justice system. The two main types of court-martial are a special court-martial (similar to a misdemeanor case) and a general court-martial (similar to a felony case). A conviction in a special or general court-martial is considered a federal criminal conviction. The military does not use the designators or labels: misdemeanor and felony.

A third type of military court-martial is the summary court-martial, which is more like an administrative action. This discussion will not address summary courts-martial.

A court-martial involves a judicial procedure for members of the military accused of violating military law, under the UCMJ, or federal law.

A court-martial is the highest level of military discipline. But what is the court-martial process, exactly, and who does it involve? That depends, somewhat, on the type of court-martial. Military courts-martial look similar to civilian trials, but there are significant differences as well. Military members should have a general, working knowledge and understanding of what happens in a court-martial case and what the process includes.

Military courts-martial are presided over by military judges. The cases are prosecuted by military JAG lawyers. The cases are defended by civilian and/or military defense lawyer.

If a military member is convicted in a court-martial, that often ends the military member’s career. The convicted military member can either be discharged as part of the court-martial sentence (punitive discharge), or discharged administratively after the court-martial, if the sentence did not include a discharge. There are other serious punishments authorized for court-martial convictions. That can include confinement in prison, reduction in rank (for enlisted members), forfeitures of pay and allowances, a fine, and other possible punishments. With the support of a skilled military discharge lawyer, individuals can work towards the best possible outcome for their case.

Court-martial cases should be taken very seriously. It is critical to have an experienced and skilled defense lawyer representing a military member facing a court-martial. A civilian court-martial defense lawyer can prepare you for the court-martial process and help you to achieve a favorable outcome.

What Happens When a Soldier Is Court-Martialed?

Each military service branch has slightly different procedures regarding courts-martial, but all share the same primary procedures. All the service branches are governed by the UCMJ, MCM, and other shared sources:

• Uniform Code of Military Justice (UCMJ)
• Manual for Courts-Martial (MCM)
• Rules for Courts-Martial (RCM)
• Military Rules of Evidence (MRE)
• United States Constitution.

When a military member is court-martialed, the case generally progresses through the investigation, preferral of charges, referral of charges, trial, possible sentencing, and possible appeal.

Step 1: Investigation and Preferral of Court-Martial Charges

The first step in a military court-martial case is the investigation. Each service branch has their own law enforcement and investigative agencies. This includes the Army CID, the Air Force OSI, the Navy and USMC NCIS, and the Coast Guard CGIS.

After the investigation has concluded, the report of investigation is provided to the accused military member’s commander and the JAG. The JAG provides advice about what action to take, but the commander makes the decision.

If the commander believes a court-martial is warranted, he/she will “prefer” court-martial charges against the accused military member. This is called “preferral.” The charges and specifications against the accused military member will appear on the preferred charge sheet.

Step 2: Article 32 Hearing

If the case begins as a special court-martial case, it does not require an Article 32 hearing. If the case begins with an eye toward general court-martial, however, an Article 32 preliminary hearing is required. An Article 32 hearing is a probable cause hearing with a function similar to a civilian grand jury. A military Article 32 hearing is presided over by a Preliminary Hearing Officer (PHO) who makes non-binding recommendations to the command about whether the case should proceed to trial and how the case should be charged. The command does not have to follow the recommendations of the Article 32 PHO, but a general court-martial case must proceed through this hearing.

Step 3: Referral of Charges to Court-Martial

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.

Step 4: Court-Martial Procedure

The military will appoint a trial judge to preside over the court-martial. The phases of a military court-martial trial are:

• Arraignment
• Motion hearing
• Trial on the merits (guilt or innocence)
• Possible sentencing (if there is a conviction)
• Clemency
• Appeal

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:

• Voir Dire (selecting the court-martial panel)
• Opening statements
• Presentation of the government’s case
• Presentation of the defense case (if any)
• Closing arguments by both sides
• Verdict

This phase of the case is called the “findings” phase. This is when guilt or innocence is decided. If the court-martial verdict is not guilty to all charges and specifications, the military member has his/her record cleared, and immediately returns to continued service. If the court-martial verdict is guilty to any charge or specification, the case immediately continues into a sentencing phase.

Step 5: Sentencing Following a Court-Martial Conviction

Following a guilty verdict, the court-martial sentencing process differs from most civilian criminal court cases in several ways.

1. First, there normally is not a delay between findings verdict and sentencing in the military. If the court-martial verdict includes a guilty finding, the case immediately proceeds to sentencing.
2. Second, court-martial sentencing is a litigated hearing. That means that evidence can be presented by both sides, witnesses can be called by both sides, arguments are made by both sides, and the sentencing authority deliberates and announces the sentence.
3. In a court-martial, the accused military member is sentenced by either a military judge alone or by the court member panel that decided on the findings verdict.

Step 6: Court-Martial Clemency

If the court-martial case resulted in a guilty verdict, and the accused military member has been sentenced, the case then enters the post-trial clemency phase. In the clemency phase, the accused military member can ask the Convening Authority to take certain beneficial action in the case. Currently, there are few clemency options for Convening Authorities, and it is rare for the Convening Authority to grant favorable clemency for a convicted military member.

Step 7: Court-Martial Appeal

After the post-trial clemency phase, a court-martial in which there was a conviction enters the post-trial appeal phase. The appeal process that applies to the case depends on the how severe the sentence was. In court-martial cases with minimal sentences, the post-trial appeal is processed through the service branch Judge Advocate General. In court-martial cases with more significant sentences, the post-trial appeal is processed through the appellate courts. Each service branch has their own criminal appeals court. Above that level is the Court of Appeals for the Armed Forces (CAAF). Above that level, and in very rare circumstances, a military case could even be appealed to the United States Supreme Court.

A Civilian Court-Martial Lawyer Can Be Your Best Defense

Attorney Richard V. Stevens is a former active duty JAG attorney, who exclusively handles military cases and has been doing so since 1995. Many of his military trial successes over more than 25 years have appeared in the media, and are described on the website and blog. The combined experience of the attorneys working with the Military Defense Law Offices of Richard V. Stevens, P.C. is more than six decades of military justice experience. This experience is invaluable for military members accused of crimes.

Due to the significant negative impact a court-martial could have on the career and future of military members and their families, it is critical to be represented by a skilled and experienced defense lawyer who knows the military justice system. The Military Defense Law Offices of Richard V. Stevens, P.C. can provide you with the advice, representation, and advocacy you need during this very difficult time in your military career.

For a free initial military case consultation, call our court martial attorney at 888-399-0693.