There are four levels or types of courts-martial: Summary, Special, BCD Special, and General. Each type differs with regard to the maximum punishment that can be adjudged, and with regard to the person who is authorized to send your case to that type of court-martial. This blog post is intended to give you just a little bit of information about each type of court-martial, and what you should expect, procedurally. While this is merely a 3,000 foot view of the process, I plan on addressing each portion in much greater detail in future posts. If you can’t wait, give me a call, and I’ll be glad to personally talk you through it. A court-martial is an anxiety filled process, but knowing what to expect helps tremendously.
A Summary Court-Martial is the lowest level of court. This type of court-martial is supposed to be reserved for handling “minor” offenses. As such, the maximum punishment that can be given at a Summary Court-Martial is fairly low, and it depends upon your rank.
E-4 and below: 30 days confinement, reduction to the lowest pay grade (E-1), forfeiture of two thirds of one month’s pay
E-5 and above: reduction of one pay grade; forfeiture of two thirds of one month’s pay – E-5 and above cannot be confined at a Summary Court-Martial.
These courts do not have a “judge.” Instead, the person who presides over the trial is a Summary Court-Martial Officer (SCMO), which is simply a commissioned officer (not necessarily a lawyer) who is detailed to the task by the officer who convenes the court. Also, there are no lawyers present at a Summary Court-Martial, generally speaking. The SCMO acts as the prosecutor, defense counsel, and judge all in the same lick.
Summary Courts-Martial are “convened” by the Summary Court-Martial Convening Authority. Usually, this would be your battalion commander. The authority to convene these courts may be withheld to the brigade commander’s level, but that is rare.
Generally speaking, a conviction at a Summary Court-Martial does not render a “federal conviction” for records purposes. This is because the accused is not afforded a number of rights at a Summary Court-Martial to which they would otherwise be entitled. Additionally, a Summary Court-Martial is not an “adversarial process” since there is no prosecutor and defense attorney involved. This does not mean that an accused cannot be represented by an attorney at a Summary Court-Martial. It just means that if their attorney represents them, in person, at the trial, then there is a likelihood that the prosecutor will also show up. If that happens, then the process starts to look a lot more “adversarial.” This means that it is more likely that the conviction could be considered as a “federal conviction” for record purposes.
With that said, there is no reason why you cannot be fully prepared to defend yourself at a Summary Court-Martial. Your attorney can draft motions for you to file, he/she can prepare you to make objections, and he/she can help you with drafting questions for witnesses, and in determining which witnesses to call.
Ultimately, the standard of proof at a Summary Court-Martial is the same as any other court-martial: beyond a reasonable doubt. Additionally, the same rules of evidence apply. This means that hearsay objections, authenticity objections, relevance objections, etc. work the same here as they do at a General Court-Martial. Being prepared is the key to success.
Lastly, you need to know that you have the right to turn down a Summary Court-Martial and request to be tried at a Special or General Court-Martial. This is due to the fact that you have less rights at a Summary Court-Martial. Sure, the punishment is lower, but the rights are diminished as well. If you want the additional rights, you have to subject yourself to the possibility of increased punishment at a Special or General Court-Martial. You definitely should speak to an attorney prior to making this decision. Once you make it, there’s no turning back.
The Special Court-Martial is a mid-level type of court. The maximum punishment that can be given at a Special Court-Martial is 12 months confinement, reduction to the Grade of E-1, and forfeiture of 2/3 pay per month for 12 months. Generally speaking, a brigade commander is the court-martial convening authority for a Special Court-Martial. That means that your brigade commander could send your case to a regular Special Court-Martial. Most likely, he/she will not do so. Instead, he or she will likely recommend that your case be referred to a Special Court-Martial empowered to adjudge a Bad Conduct Discharge. The maximum punishment for this type of court-martial includes a Bad Conduct Discharge (“BCD”). Your brigade commander cannot send your case to this type of court-martial, because they ordinarily do not have the authority to do so. Only the General Court-Martial Convening Authority (usually the commanding general for your unit) may convene a BCD Special Court-Martial.
Most commanders see a regular Special Court-Martial as a waste of time and resources, because the punishment does not include a discharge. This means that the command would have to chapter the Soldier after the punishment is served. As such, most commanders prefer to recommend a BCD Special Court-Martial, instead.
Note that a BCD Special Court-Martial, in contrast to a General Court-Martial, does not require a preliminary hearing under Article 32, U.C.M.J. So, it takes less time for a command to push a case to a BCD Special Court-Martial, versus a General Court-Martial.
A military judge presides over a BCD Special Courts-Martial. The military judge is usually at least a Lieutenant Colonel who has served in several criminal litigation jobs throughout his/her career in the JAG Corps. Moreover, a BCD Special Court-Martial also comes with a jury (referred to as a “panel” in the Army). Generally speaking, most panels will start out with around ten members. Then, the prosecution and the defense have the opportunity to conduct voir dire, which means that the attorneys get to ask the panel members questions to determine whether they are a good fit for the particular trial. After voir dire, the attorneys can make challenges to the panel members (outside of the members’ presence, of course), and ask the judge to remove those members from the panel. I’ll go more in depth into the voir direprocess in a separate post. For now, the important thing to understand is that the panel cannot have fewer than three members for a BCD Special Court-Martial.
Note that officers are usually not prosecuted at a BCD Special Court-Martial. This is because a BCD Special Court-Martial cannot sentence an officer to confinement or to a discharge of any sort. So, almost always, officers are tried at a General Court-Martial.
A General Court-Martial is the military’s equivalent of a felony level trial court. A General Court-Martial is empowered to sentence an accused up to the maximum punishment for a specific offense. For example, the maximum punishment for an enlisted Soldier convicted of false official statement, in violation of Article 107, is reduction to the grade of E-1, total forfeiture of all pay and allowances, five years confinement, and a Dishonorable Discharge. So, a General Court-Martial could adjudge that exact punishment, whereas a BCD Special Court-Martial could only adjudge one year of confinement (rather than five) and a Bad Conduct Discharge (rather than a Dishonorable Discharge).
A General Court-Martial also differs with regard to the number of panel members that must be on the panel. While a BCD Special Court-Martial only requires three members, a General Court-Martial requires at least five.
Lastly, there are certain offenses that must be tried at a General Court-Martial. Namely, charges of Rape and Sexual Assault in violation of Article 120 must be tried at a General Court-Martial, as any other level of court-martial lacks jurisdiction, pursuant to Rule for Court-Martial 201.
Officers vs. Enlisted
As noted above, officers are usually prosecuted at General Courts-Martial, because a Special Court-Martial, even if empowered to adjudge a BCD, cannot sentence a commissioned officer to a discharge or confinement. However, at a General Court-Martial, commissioned officers (including commissioned warrant officers) can be discharged by way of a “dismissal.” So, while an enlisted Soldier can receive either a Bad Conduct or a Dishonorable Discharge at a BCD Special or General Court-Martial, a commissioned officer receives a Dismissal.
Also, a court-martial sentence cannot reduce an Officer in grade. For example, a Captain cannot be sentenced to be reduced to a First Lieutenant or Second Lieutenant.
Court-Martial Process (Generally)
From here forward, when I use the term “court-martial,” I am referring to either a BCD Special Court-Martial or a General Court-Martial. I am not referring to Summary Courts-Martial. I want to explain to you the key parts of a court-martial, without going into a tremendous amount of detail. A separate blog post will examine each of these key parts much more closely.
What is referral? Every trial starts with a referral. This is not to be confused with “preferral.” Preferral is when someone (usually your commander) officially charges you with offenses of the U.C.M.J. He or she takes an oath and swears to the charges on the charge sheet, thus charging you with crimes. When I think of preferral, I think of a doctor analyzing all of the treatment options for a medical situation, and he/she “prefers” to prescribe one medication instead of another. However, if the doctor cannot issue the prescription or just does not have the expertise to handle the situation, he or she may “refer” you to a different treatment provider who can, like a specialist. When it comes to court-martial charges, I think about a lower level commander “preferring” to charge a Soldier with crimes, versus using some other form of disposition, and I think of the Commanding General “referring” those charges to a military judge, since he doesn’t have the expertise to handle the particular situation.
To sum it up: preferral is when a Soldier gets charged, referral is when those charges are officially sent to a trial court.
How do we get to referral? After preferral of charges, the charge sheet is forwarded through every level of your chain of command. Each commander has the option to either dismiss the charges, refer the charges to a court-martial to which they are authorized to refer charges, or forward the charges to a higher commander with the recommendation that they be referred to a higher level court-martial.
For example, if your company commander prefers charges against you, the charge sheet is forwarded to your battalion commander. At that point, your battalion commander could dismiss the charges, refer the charges to a Summary Court-Martial, or forward the charges to the brigade commander with a recommendation that the case should be referred to a BCD Special or General Court-Martial. If he/she takes the last approach, when the brigade commander receives the charge sheet, he/she can dismiss the charges, refer the charges to a Summary Court-Martial or a Regular Special Court-Martial, or forward the charge sheet to the Commanding General with a recommendation that the charges be referred to a BCD Special or General Court-Martial.
For a BCD Special or General Court-Martial, the Commanding General is typically the only person who can refer the charges to trial. As such, he/she is referred to as the “General Court-Martial Convening Authority.” If the General Court-Martial Convening Authority (GCMCA), decides to refer your charges to trial, he indicates the same in writing, and then the prosecutor sends the charge sheet to the military judge.
At this point, you will be served with a copy of the referred charge sheet. It is the same charge sheet you received at preferral, except that it has the referral block signed on the back. As soon as you get this, you need to call your attorney, as your arraignment will likely be taking place within a week or two.
The arraignment is your initial appearance in court before the military judge. It is a relatively short ordeal (normally about 15 minutes), but five incredibly important things happen. First, the arraignment stops the Rule for Courts-Martial (R.C.M.) 707 clock. R.C.M. 707 states that the prosecution has 120 days after the preferral of charges to get the case to an arraignment. If not, then the charges should be dismissed.
Second, at your arraignment, the military judge will tell you that you can be tried in “abstentia.” That means that if you do not show up for trial, then your trial will proceed anyways, even in your absence. So, it is imperative that you keep your attorney informed as to your whereabouts between arraignment and your trial date.
Third, you will enter your plea to the charges. In the case that you do not have a pre-trial agreement (or plea deal), then your attorney will likely advise you to plead Not Guilty to all charges.
Fourth, you will enter your desired forum selection. Forum is the type of court by which you want to be tried. You have two options here. First, you can elect to be tried by military judge alone. This would mean that you do not have a jury or panel. Instead, the military judge would determine your guilt or innocence, and if you are convicted, he or she will also determine the sentence. Second, you can elect to be tried by a panel of officers. If you are enlisted, you can request that at least one third of the panel be comprised of enlisted members, none of which could come from your unit.
Fifth, there are a few types of motions that must be filed prior to the entry of your pleas. These include motions to dismiss and motions to suppress evidence – by far the most essential motions you can file. This is partly why it is so important to get an attorney involved in your case early on, such that these motions can be prepared for filing prior to the entry of pleas. Certainly, your attorney can request to file these motions at a later date, but if you get ahead of the game, your case will be far better situated.
Discovery and Production
At the time that your case is referred to trial, the prosecutor’s discovery obligations take effect. This means that the prosecutor, by law, must provide certain documents to you and allow you to inspect their evidence. This evidence include the case file that was examined by the GCMCA and the commanders who provided recommendations. The prosecutor must also disclose to you any exculpatory evidence (any evidence that makes it look like you didn’t commit the crime).
You also have the ability to request various other things through the discovery process, as there are a number of things that the prosecutor does not automatically have to give to you. But, if you ask for the material in a discovery request, the prosecutor may have to give it to you. If he/she does not provide the requested material, your attorney can file a motion requesting the military judge to compel the prosecutor to comply with your discovery request.
Discovery and Production are two different concepts. Discovery refers to material that is in the prosecutor’s possession. In other words, you are discovering what cards the prosecutor has in his or her hands. Production, on the other hand, is asking the prosecutor to produce evidence that he or she does not have in his or her hands.
For example, let’s say that you are charged with violating a no contact order by calling a certain person on the telephone. If the prosecutor has copies of a statement from the other person asserting that you called them, they have to give that statement to you through discovery. However, if you also want a copy of the other person’s phone records to show that you never called them, you can request that the prosecutor produce those phone records, even though the prosecutor does not already have them. If the prosecutor agrees with your request, he/she will send a subpoena to the phone company ordering them to produce the records, by authority of the President of the United States. If he/she denies your request, however, then you can file a motion asking the military judge to compel the prosecutor to send the subpoena.
The military judge will likely set a deadline by which you have to file motions. A motion is simply a written request for the military judge to take some action. You can file a motion to dismiss the charges, a motion to prevent pieces of evidence from being considered, a motion to compel discovery, etc. As long as the request is appropriate, has a legal basis, and is not frivolous, you can file it.
If and when you do file motions, you can ask for a hearing on those motions. The judge will set an initial date upon which he/she will hear the motions. At the motions hearing, you can call witnesses, provide written evidence, or even testify. Your attorney can orally argue the motions in front of the judge in an effort to convince him/her to rule in your favor.
After all motions have been ruled upon, you will have a good idea of what evidence will be admissible at your trial, who will be testifying, etc. In other words, the battlefield will have been prepped, and you’ll know what you’re up against.
The trial is broken down into two key portions: the merits portion and the pre-sentencing portion. The merits portion is the actual trial to determine whether the Government has proven your guilt beyond a reasonable doubt. After voir dire of the panel is finished, opening statements are given, witnesses are called and cross-examined, evidence is admitted, and closing arguments are made. Then, the panel (or the military judge if you elected a trial by military judge alone) retires to deliberate on a verdict.
In order to obtain a conviction, the prosecutor must prove your guilt beyond a reasonable doubt. That means that they must prove your guilt to the exclusion of every other reasonable hypothesis of the evidence. That’s an incredibly high standard, when applied properly. However, the panel does not need to unanimously find that you are guilty. Instead, only two thirds of the panel must vote that you are guilty in order to convict.
If a conviction results, then the trial moves into the second key portion – the presentencing portion. The pre-sentencing portion of the trial is essentially a separate trial of its own. However, instead of determining whether or not you are guilty, the court decides what kind of sentence to issue. Witnesses are called, evidence is admitted, and arguments are made by the attorneys. The panel or military judge alone retires once again, but this time to deliberate upon an appropriate sentence. Again, two thirds of the members must agree on a particular sentence in order to impose it. The members are supposed to discuss the evidence, and each one writes down the sentence that they think is appropriate. Then, all of the individual slips of paper are given to the panel president, who organizes them from least severe to most severe. Starting with the least severe sentence, all of the panel members vote on whether that sentence should be imposed. If two-thirds of the panel members agree upon a sentence, that will be your sentence, and no more severe possibilities are considered or voted upon. One caveat — if the proposed sentence is more than ten years confinement, then three-fourths of the panel members must agree in order to impose such a sentence.
Hopefully, this bird’s eye view has educated you a little on what the court-martial process looks like and what to expect. Certainly, each portion of this process is complicated and requires a number of strategic decisions. So, be sure to ask your attorney about each aspect, even if you feel like you have your head wrapped around it. In my practice, it is absolutely essential to ensure that my clients understand what is going on in their case. Knowledge is power.