TYPES OF COURTS-MARTIAL
There are three types of court-martial proceedings that may be brought against a servicemember in the military criminal justice system. Which type of court-martial an accused servicemember will face depends upon the seriousness of the charged offense(s) and rank of the accused.
SUMMARY COURTS-MARTIAL
What is a Summary Court-Martial?
A summary court-martial (SCM) is the lowest level of court-martial in the military justice system. SCM is used to prosecute most minor offenses committed by enlisted service members. Only enlisted military personnel may be prosecuted via summary court-maritial. Trial by SCM is not adjudicated by a judge, but rather a single commissioned military officer who need not have specialized legal training or be a lawyer. This type of court-martial does not permit an accused to be represented by a physically present attorney. However, a service member facing prosecution via SCM may consult with an attorney, either military or civilian, regarding his legal rights and to prepare a defense at trial. If an accused wishes, he or she may decline to be prosecuted by SCM and request that the case be referred to one of the other two levels of courts-martial instead where the accused is afforded more substantive rights, such as the rights to counsel and trial by jury or military judge alone.
Who is subject to trial by Summary Court-Martial?
All enlisted service members may be prosecuted by summary courts-martial, including reserve, retired, or active status military personnel, as well as certain civilians who accompany the military during exercises. However, servicemembers who are officers, cadets or midshipmen may not be prosecuted by summary courts-martial. These ranking servicemembers are only subject to prosecution by higher levels of courts-martial.
What kinds of crimes are prosecuted at the Summary Court-Martial?
The Summary Court-Martial is generally utilized to prosecute crimes that are considered minor instances of misconduct by enlisted persons. Examples would include Absence without Leave (AWOL) for short durations; Failure to Obey Lawful General Orders; etc.
What are the penalties or sentences that may be adjudged by a Summary Court-Martial?
A guilty finding following trial by SCM courts-martial carries a maximum penalty of 30 days confinement, forfeiture of 2/3 pay for one month, and reduction in rank: Soldiers with a grade of E-5 and above may be reduced by one grade; Soldiers with a grade of E-4 and below may be reduced to the lowest enlisted grade, or E-1
SPECIAL COURTS-MARTIAL
What is a Special Court-Martial?
The next highest level of court-martial is called the Special Court-Martial (SPCM). Essentially, there are two types of SPCM: the Straight Special and the Special Court-Martial empowered to adjudge a Bad Conduct Discharge (BCD), or otherwise referred to as a BCD-Special. SPCM are used to prosecute servicemembers accused of committing non-capital offenses and are typically employed to prosecute offenses that are considered 'misdemeanors' under the civilian criminal justice system.
With a SPCM, an accused is tried before a 3-member panel alone without the presence of a military judge. This occurs very infrequently in the military. For all practice purposes, the Special Court-Martial empowered to adjudge a Bad Conduct Discharge is the most commonly employed SPCM used in the military justice. Here, an accused has a choice to have his case tried before a military judge alone, or a military judge in conjunction with a minimum of 3-member panel. If the servicemember being prosecuted is an enlisted person, he has the additional option of requesting that the panel hearing his case be comprised of enlisted servicemembers.
At trial by SPCM, the accused is entitled to be represented by counsel. A free military attorney from the trial defense service is appointed to represent the accused at no charge. The accused also has the option of hiring a civilian defense attorney at his or her own expense. There are many attorneys in the civilian economy who advertise for military civilian defense, however only few have the necessary experience and qualifications to effectively represent one at trial by court-martial. Because advertising can often be misleading, accuseds who wish to consult with or hire a civilian defense attorney should take the time to learn about the attorney’s experience and exposure with the military justice system and rate of success with representing servicemembers.
Who is subject to trial by Special Court-Martial?
Just as in the case of Summary Courts-Martial, all enlisted service members on active duty, as well as those civilians who are involved with military activity in some fashion are subject to trial by SPCM. Additionally, all classes of enlisted personnel who were not subject to the Summary Courts-Martial, are tried at this level of courts-martial; to wit, officers, cadets or midshipmen.
What are the penalties or sentences that may be adjudged by a Special Court-Martial?
A guilty finding following trial by Special Court-Martial carries a maximum penalty of up to one year of confinement, forfeiture of 2/3 pay per month for one year; reduction to the lowest enlisted grade if the accused is an enlisted servicemembers, and a bad conduct discharge for enlisted servicemembers only.
GENERAL COURTS-MARTIAL
What is a General Court-Martial?
A General Courts-Martial (GCM) is the highest level of court-martial. Before an accused can be tried by GCM, he or she is entitled to a preliminary hearing called an Article 32 pretrial investigation. This event is similar to a civilian grand jury proceeding, however there are several differences that favor the accused. The similarity to the grand jury proceeding is that the Article 32 hearing requires an objective and impartial finding of probable cause that the accused committed the charges offenses before being subject to trial b GCM. The differences that favor the accused are that the Article 32 hearing is not in secret; an accused may not be compelled to testify at this event; an accused is entitled to be represented by counsel at this event; through counsel, the accused may confront and cross-examine witnesses called by the government; present evidence on his or her own behalf such as testifying, calling witnesses to testify, presenting documents or other physical evidence, and lastly presenting argument. Unlike the grand jury process, however, the Article 32 pretrial investigation is presided over by a single, neutral and detached military officer, who after hearing all the evidence presented, will make a finding as to whether or not here is reason to believe the accused committed the charged offenses. This officer then recommends whether or not the charges go forward to court-martial, and if so, what level of court-martial. This recommendation is then considered by the Commander who convened the Article 32 pretrial investigation, and that Commander then determines in his sole discretion whether the case should be sent to court-martial.
Who is subject to trial by General Courts-Martial?
All military personnel are subject to trial by GCM.
What are the crimes that can be tried by General Courts-Martial?
Trial by GCM is reserved for the most serious criminal offenses, those that would be considered felonies in the civilian criminal system. These crimes include capital and non-capital offenses such as murder, rape, sexual assault, larceny, possession of child pornography, etc.
What are the penalties or sentences that may be adjudged by a General Court-Martial?
A guilty finding following trial by General Court-Martial carries a maximum penalty of confinement as set forth in Uniform Code of Military Justice for the convicted offense; total forfeiture of all pay and allowances for the maximum period set forth in the UCMJ; reduction to the lowest enlisted grade if the accused is an enlisted servicemembers; and a bad conduct or dishonorable discharge for enlisted servicemembers and dismissal of officers.
ADMITTED TO PRACTICE IN:
Rhode Island 2003
Massachusetts 2003
Connecticut 2005
New York 2005
Florida 2008
U.S. District Court for Northern District of New York 2004
U.S. District Court for Eastern District of New York 2010
U.S. District Court for Southern District of New York 2010
U.S. District Court for the District of Rhode Island 2008
U.S. District Court for the District of Massachusetts 2008
U.S. District Court for the District of Connecticut 2009
U.S. District Court for the District of Columbia 2010
U.S. Court of Appeals for the First Circuit 2004
U.S. Court of Appeals for the Second Circuit 2011
U.S. Army Court of Criminal Appeals 2011
U.S. Court of Appeals for the Armed Forces 2011
U.S. Supreme Court 2009
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