By Dr. Jarrod Sadulski
Faculty Member, Criminal Justice
Military discipline is a topic that does not get a lot of attention until a servicemember gets in trouble and is under investigation. However, all servicemembers, especially if they are new to the military, should understand how the military discipline system works because it is much different than the traditional criminal justice system.
Understanding the Uniform Code of Military Justice
The Uniform Code of Military Justice (UCMJ) is a full set of laws and regulations that apply to active-duty servicemembers. The UCMJ has a long list of crimes – including homicide, sexual assault, theft and other common offenses – that are similar to typical civilian crimes.
However, the UCMJ also has many laws and rules (called articles) under which servicemembers can be disciplined. Examples of these military articles include:
- Article 92 – involves a failure to obey an order or regulation
- Article 134 – refers to punishable offenses that align with “all disorders and neglects to the prejudice of good order and discipline in the Armed Forces, all conduct of a nature to bring discredit upon the Armed Forces.”
Article 134 covers a wide range of offenses and provides commanders with a lot of discretion when determining behavior that is a violation of the UCMJ. Some common examples of Article 134 violations are:
- Failing to pay a debt
- Cheating on tests
- Using social media for posts that discredit the military, for hazing others or that show content that is unbecoming for a servicemember to post
- Being drunk and disorderly
- Insulting officers, in or out of that officer’s presence
The Different Types of Court-Martials
The UCMJ went into effect in 1951 and has acted as the guiding framework for the Manual of Courts-Martial ever since. Court-martials are used for the most serious violations of the UCMJ, and servicemembers who are disciplined by court-martial could spend time being incarcerated in a military prison.
According to Military. com, there are three different types of court-martials: the summary court-martial, special court-martial and general court-martial. A summary court-martial involves one commissioned officer who acts as the judge and jury for less serious offenses committed by enlisted personnel.
A special court-martial involves three servicemembers; two of these servicemembers act as the jury and another as the judge. This court-martial is commonly referred to as misdemeanor court.
A general court-martial involves five servicemembers who act as a jury and an additional person who serves as the judge. General court-martials are used in cases involving serious offenses.
Defendants at all three types of court-martials may have an attorney present. However, defendants in summary court-martials do not have the right to a free military attorney as they have in the other types of court-martials.
Legal representation for servicemembers accused of UCMJ violations is crucial; an effective attorney can prove useful during a court-martial. If a servicemember hires a civilian attorney, that attorney should have a deep understanding of military procedures, the UCMJ, and the differences between court-martials and civilian criminal court.
Not all violations of the UCMJ are disciplined through court-martials. Commonly used for less serious offenses, non-judicial punishment (NJP) can be issued by commanders.
Commanding officers are typically in charge of serving as the judge and jury in NJP hearings. NJP hearings may be held in front of the unit, whose members act as observers.
If accused servicemembers must attend a NJP hearing, they should ensure that all of the circumstances when the violation occurred is presented during the hearing. If permitted, the accused servicemembers can witnesses testify about their character and track record of good behavior to mitigate any disciplinary measures.
NJP may be issued for general article violations such as habitually showing up to work late, cheating, destroying government property and other violations that don’t rise to the level of discipline issued during court-martials. Common discipline through NJP includes base confinement, extra duties, reduction in rank and forfeiture of basic pay.
Understanding Your Rights If You’re Accused of a UCMJ Violation
Once an allegation of a violation of the UCMJ is made toward a servicemember, an investigation is initiated. Investigators will obtain statements from witnesses, collect any video footage associated with the alleged violation and take a statement from the accused servicemember.
Accused servicemembers should know their rights. Similar to the U.S. Constitution’s Fifth Amendment, Article 31 of the UCMJ provides protection for accused servicemembers against self-incrimination and requires investigators to inform the servicemember of the alleged charges. Similar to civilian defendants, servicemembers also have the right to remain silent regarding the allegations against them.
Reservists and UCMJ Violations
There is often some confusion regarding whether a reservist can be charged under the UCMJ. But in the 2014 case of United States v. Morita, it was determined that there “is no UCMJ jurisdiction over a reservist who commits an offense when not in a military status.” In other words, reservists are expected to uphold themselves to military standards when they are not in a drilling status, and failure to do so (such as getting arrested for a crime) can still lead to administrative disciplinary measures, such as discharge.
Military Service Requires a Knowledge of Rules and Regulations
During active duty, servicemembers should understand the military rules and regulations that govern their behavior. In addition, servicemembers accused of a UCMJ violation should understand their rights and the evidence against them.
Gaining an understanding of the UCMJ and military expectations in terms of behavior can be helpful in avoiding avoid a lot of problems, especially for junior servicemembers. However, supervisors and mentors can also help junior servicemembers to more easily understand what behavior could cause them to get in trouble, which in turn could have an adverse impact on their military careers.