Rights Under Article 31(b), UCMJ
Military members enjoy the same rights against self-incrimination as any United States citizen. As a military member, you do not have to say or do anything that might tend to incriminate you. Too often, military members think that they can simply talk their way out of a difficult situation. Unfortunately, even for those members who have done nothing wrong, making a statement or cooperating with those people that are questioning you can make that difficult situation even worse. In such situations, remember the following:
If you ever find yourself accused or suspected of a crime, the safest and smartest way to proceed is to consult with an attorney qualified in military law, even if you do not think you have done anything wrong.
Military Administrative Discharge vs. Punitive Discharge/Dismissal
Commanders can initiate administrative separation actions against military members for a variety of reasons, ranging from criminal misconduct (military or civilian) to failed fitness tests to fear of flying. If a member is administratively separated from the military, that member’s service will be characterized as Honorable, General (Under Honorable Conditions), or Under Other Than Honorable Conditions. The characterization that a member receives will largely be based upon the reason for administrative discharge balanced against the quality of the member’s service during that enlistment period. Honorable characterizations are appropriate when the quality of the member’s service generally has met standards of acceptable conduct and performance of duty, or a member’s service is otherwise so meritorious that any other characterization would be inappropriate. General characterizations are typically appropriate if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of his/her military record. Under Other Than Honorable Conditions characterizations (typically referred to as “UOTHC” or “OTH”) are deemed appropriate if based upon a pattern of behavior or acts that demonstrate a significant departure from the conduct expected of military members.
Punitive discharges can only be adjudged at a court-martial. For enlisted members, there are two types of punitive discharges – Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD). While BCDs can be adjudged at either a Special Court-Martial or a General Court-Martial, DDs can only be adjudged at a General Court-Martial. Officers cannot receive BCDs or DDs. Instead, the equivalent form of discharge is called a “Dismissal,” and can only be adjudged at a General Court-Martial. For that reason, officer cases are rarely referred to Special Courts-Martial.
The basis for discharge and the characterization of a member’s service will greatly impact the benefits to which the member is entitled, such as veteran’s benefits and the G.I. Bill.
Courts-martial are governed by a variety of rules including, but not limited to: the Uniform Code of Military Justice (UCMJ); the Rules for Courts-Martial (RCM); the Military Rules of Evidence (MRE); and a number of service-specific regulations and other administrative guidance such as service/local Rules of Court. All services employ trial by Court-Martial to address criminal activity by service members. There are three types of Court-Martial: Summary (SCM), Special (SPCM), and General (GCM).
Summary Court-Martial. The SCM is the lowest level Court-Martial in the military justice system. The SCM is ordinarily used to dispose of relatively minor offenses where nonjudicial punishment (Article 15/Captain’s Mast) is not considered severe enough. The SCM is composed of one officer who acts as judge, prosecutor, and defense counsel; he or she is charged with impartially inquiring into both sides of the matter and ensuring that the interests of both the Government and the member are safeguarded and that justice is done. A military defense counsel is typically not authorized to represent the service member in a summary Court-Martial, but service regulations differ on this point. A civilian defense counsel may represent the member at the member’s expense, if the appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it. The service member does not have to accept trial by SCM. He or she may decline to be tried by SCM. However, the command does have the option to convene a SPCM or GCM, addressed below, if the SCM is declined. At the SCM, the member has the right to cross examine any witnesses, call witnesses and produce evidence, testify under oath in the findings (guilty/not guilty) phase, remain silent; and raise motions. If convicted, the member may testify under oath; make an unsworn statement; remain silent; and/or present matters in extenuation and mitigation. There are also a variety of post-trial procedures that apply to the SCM. The maximum punishment that may be imposed by SCM follows:
For E-5 and above:
For E-4 and below:
The prevalence of SCMs is also service-specific. Some services tend to move directly from the Article 15 disposition realm, immediately to the SPCM. Other services tend to employ the SCM more frequently as an efficient way to dispose of cases more serious than those calling for an Article 15, but not serious enough for a SPCM.
Special Court-Martial. The SPCM is the intermediate level of Court-Martial in the military. The jurisdictional maximum punishment that may be imposed for this court is reduction in grade to E-1; forfeiture of two-thirds pay per month for a period of twelve months; confinement for a period of twelve months; imposition of a bad conduct discharge; and a fine. The amount of the fine may not exceed the total forfeitures which could be imposed; nor can the combination of a fine and forfeiture exceed the total amount of permissible forfeitures. Unless the service member elects trial by military judge alone, the jurisdictional number of court members (jury) is four (4) officer members, to include, at the election of the enlisted accused, at least one-third enlisted members. This “forum selection” is discussed below.
General Court-Martial. The GCM is the most serious type of Court-Martial. The jurisdictional maximum punishment that may be imposed for this court is reduction to the grade of E-1 (officers cannot be reduced); forfeiture of all pay and allowances; confinement for life without eligibility for parole; imposition of a dishonorable discharge (dismissal for officers); death (if capital); and a fine in an unlimited amount. The maximum punishment that may be imposed in any given trial for the GCM is determined by the charged offenses; most offenses do not include death as an option, and most offenses provide for a confinement cap well below life. Unless the service member elects trial by military judge alone, the jurisdictional minimum number of court members is eight officer members, to include, at the election of an enlisted accused, at least one-third enlisted members.
The Court-Martial process typically begins at the conclusion of a law enforcement investigation. The report of investigation is provided to the member’s chain of command. In consultation with the local JAG office, the commander determines the proper disposition level for the case. Of course, the commander will have a variety of options besides trial by Court-Martial, to include nonjudicial punishment action (Article 15, Captain’s Mast), administrative discharge action, or other lower-level adverse administrative action. (See other Practice Areas on this site). If the commander determines Court-Martial action is appropriate, he or she will “prefer” charges against the member. From this point on in the process, the member is known as “the accused.” The preferral is no more than the commander’s statement that he or she believes the charges to be true, and a formal notification to the accused that he or she is now under charges and the Court-Martial process has begun.
If the commander has determined that the case should proceed to SPCM, the Court-Martial can quickly be convened and the case set for trial. A Court-Martial is “convened” in the military when a designated senior officer (often O-6 or above), the “Convening Authority” (CA) directs that a Court-Martial take place and appoints court members to the case from within his or her command. Members from outside the command may be appointed with the concurrence of the commander concerned. Service practices differ a bit here. Some services have their CA appoint new members each time a Court-Martial is convened. Other services have their CA appoint court members to serve on all courts convened within a certain period of time; for example, six months. When the CA convenes a Court-Martial, he or she “refers” the charges to trial by Court-Martial. Upon notice of this referral action, the accused can be tried after a statutory respite of three days, although there is typically a longer period before the trial begins. The assigned military judge, or a superior judge, will review the schedules of all counsel and set a trial date.
If the commander determines that the case should proceed to GCM, the process differs significantly. The preferral process is the same, but no case can proceed to trial by GCM without first holding a preliminary investigation under Article 32, UCMJ. This investigation is designed to protect service members from baseless charges. When required, an Article 32 investigation is conducted by an impartial Preliminary Hearing Officer (PHO) appointed by the a CA. The PHO is charged with determining three things: whether there are reasonable grounds to believe an offense occurred and the accused committed it; whether the charges are in proper form; and the appropriate level of disposition for the case. An accused has a variety of rights at an Article 32 hearing. They are:
When the PHO concludes the Article 32 investigation, he or she makes recommendations to the CA. Although the CA is not bound by the recommendations of the PHO, he or she may adopt them in whole or in part. After the Article 32 investigation, the CA may refer the case to trial by GCM. Although the CA may dismiss the case altogether, or determine a lower disposition level is appropriate, the large majority of cases that go through an Article 32 hearing are referred to GCM. Upon notice of this referral action, the accused can be tried after a statutory respite of five days, although, again, there is typically a longer period before the trial begins. As with the SPCM, the assigned military judge, or a superior judge, will review the schedules of all counsel and set a trial date.
The trial begins with a session out of the presence of the court members. At the beginning of this session, the military judge asks the accused about his or her choices regarding various rights. The military judge will ask the accused by whom he or she wants to be represented and whether he or she wants to be tried by court members or by military judge sitting alone. Also during this session, the lawyers for each side may ask the judge to rule on certain points of law. Typical motions at this phase may involve the suppression of evidence due to an improper search or seizure, suppression of statements made by the accused due to a rights violation, and attempts to introduce or exclude evidence under the Military Rules of Evidence. After the military judge rules on any motions brought before the court, the accused enters his or her pleas in the case. If the accused pleads guilty, the military judge will question him or her to determine if the pleas are knowing and voluntary. If the judge determines the pleas are provident, or acceptable, the case proceeds to sentencing. If the accused pleads not guilty, and has elected trial by court members, the “findings” (guilty/not guilty) phase of the trial begins. The trial starts with opening statements by each side. These statements are the lawyers’ views of what the evidence will show.
The Government then begins their case. The prosecutors in the military are referred to as “Trial Counsel.” Trial Counsel present their evidence and witnesses and the Defense has an opportunity to question all witnesses called by the Government. At the conclusion of the Government’s case, the Defense may present a case, or may remain silent and present no evidence. If the Defense puts on a case, all witnesses called by the Defense are subject to cross examination by the Trial Counsel, to include the accused if he or she testifies.
After both sides have an opportunity to present possible rebuttal evidence, the military judge will close the court and have a session with the lawyers and the accused to determine what instructions he will provide the members. The judge is obligated to instruct the members on the law applicable in the case; sometimes there are are disagreements as to the appropriate instructions, and the judge will rule on these issues out of the presence of the court members. The members are then called back into the courtroom and the judge provides the substantive instructions to the members.
The lawyers then make closing arguments. Closing arguments are more than just the lawyers’ recitation of the facts; these arguments are the lawyers’ opportunity to convince the judge or members that their respective cases are the more believable. After the arguments of the lawyers, the military judge provides the instructions on the applicable procedures for closed session deliberations, voting by the members, and announcing the findings. In the military, unlike the civilian community, an accused can be convicted if three-fourths of the members vote for conviction on any given offense – a unanimous verdict is not required. If the accused is convicted of an offense before the court, the case proceeds immediately to the sentencing phase. If the accused is acquitted – or found “Not Guilty” – of all charged offenses, the trial is over and the accused returns to duty.
In the civilian community, there is often a period of time between a conviction and the sentencing phase of the trial. This respite allows for completion of such items as a sentencing report for the judge; it is also often undertaken before a judge without a jury and governed by state or federal sentencing guidelines. In the military, however, the sentencing phase of the trial follows immediately after the findings phase. T
The sentence case procedure mirrors the findings case procedure in that the Trial Counsel goes first. The Trial Counsel presents a number of mandatory items from the accused’s military record, and any other evidence directly relating to or resulting from the offenses of which the accused has been convicted. The Trial Counsel’s evidence is known as “matters in aggravation.” The Defense goes next, and presents matters in “extenuation and mitigation.” At the conclusion of the evidence, the judge again instructs the jury, the lawyers argue, and the jury deliberates. If the accused is sentenced to confinement, the confinement takes place immediately, with very limited exceptions. If the accused is sentenced to a reduction in rank or forfeitures, the effective dates of those portions of the sentence depend upon the service of the accused. If the accused is sentenced to a punitive discharge, the effective date is driven by the completion of post-trial processing and any appeals in the case.
When a case proceeds to trial, an accused has a variety of rights. They include:
While all these rights are important, some bear further explanation:
The Right to Counsel. The right to counsel is the foundation for effectively and persuasively exercising all other rights available to an accused in a Court-Martial. An accused is entitled to be represented by detailed military defense counsel, free of charge. Different services make defense counsel assignment decisions based upon different criteria. Some services tend to place second-assignment JAGs or above in defense counsel billets, while other services may assign JAGs fresh out of law school. You should be sure to ask your detailed counsel about his or her level as experience as a lawyer, a defense counsel, and counsel in the type of case you are facing. In addition to your detailed counsel, you may ask for another military counsel to represent you.
If the requested counsel is reasonably available (different service rules apply), he or she will be appointed to represent you also free of charge. If this second military counsel is appointed, however, you would no longer have the right to keep your originally detailed military counsel. You may ask your original counsel’s superiors to allow him or her to remain on the case, but hat request would not have to be granted; that is because you are entitled to only one military lawyer. If you asked for a specific military lawyer, you should again be very careful to question that person about his or her level of experience, especially in a case like the one you face. These may be hard or awkward questions to ask, but you should get past that and do so – your future depends upon it.
In addition to military counsel, you may also be represented by a civilian counsel of your choosing, but you must pay for the civilian. If you are represented by a civilian, you can keep your military lawyer on the case to assist the civilian, or you can be represented alone by the civilian. It is usually not a good idea to dismiss your military lawyer, so think very carefully about that issue if it comes up.
Right to Confront Witnesses. The right to confront witnesses means the right to cross examine witnesses. However, it means much more than simply standing up and asking the witness any questions that come to mind. The cross examination right, properly exercised, requires significant preparation, and a great deal of thought as to how the cross examination of each witness plays into the overall case strategy. It certainly requires interviewing each opposing witness prior to trial; sometimes on more than one occasion. Simply, it requires experience to be conducted effectively.
Right to Select Forum. In a Court-Martial, an accused may be tried by either court-members or by military judge alone. If tried by military judge alone, the judge first determines whether the accused is guilty or not guilty of the charged offenses. If the judge finds the accused guilty of any charged offense, the judge also determines the sentence in the case. The accused may also be tried by court members. If the accused is enlisted, and he or she elects enlisted membership on the court, the Court-Martial panels must include at least one-third enlisted membership; however, typically no enlisted member will come from the accused’s unit, and no enlisted member will be junior to the accused. If the accused elects trial by members, the members must vote by secret written ballot to determine the guilt or innocence of the accused. If there is a conviction, the members again vote, by secret written ballot, to determine the sentence of the accused.
In the military, with one limited exception, court members are only excused if it can be demonstrated that they cannot hear the case fairly and impartially. However, the lawyers do get a chance, as noted above, to question the court members in order to determine whether they are fair and impartial. Additionally, each side is permitted one challenge against a court member, which results in the excusal of the court member, without demonstrating partiality. This exercise, too, requires significant study of the background of the court members as set forth in their background data sheets supplied before trial, and application of experience to determine which court members are better suited to sit. For example, one may think it would be a good idea from a Defense perspective, to try and remove any women from a Court-Martial panel in a sexual assault case. This is not always the case; in fact, in some sexual assault cases, it is a good idea to try and keep women on the Court-Martial panel. Only years of experience puts the Defense in a position to make such calls.
The Right to Testify. The right to testify is much more than an accused’s right to sit before the jury and tell his or her side of the story. Whether or not to testify is a decision made by the accused with the advice of his or her lawyer. However, an accused will never be in a position to make such a decision until he or she is fully prepared for the prospect of testifying. The military defense attorney should prepare the accused for trial testimony by actually taking an accused into the courtroom and conducting a mock examination – to include cross examination – with an accused. Only then can an accused make an informed judgment about whether or not to testify. In fact, only then can a military defense lawyer make an informed recommendation to an accused about whether or not to testify. This part of trial preparation, like all others, requires significant experience. Only the seasoned advocate is in the best position to make such crucial recommendations to an accused as his or her future hangs in the balance.
There are two different processes for administrative discharge: Notification Processing or Board Processing. Most cases are processed using notification procedures, where the notification and the member’s response are limited to writings. If a member is entitled to have his/her case heard by an administrative discharge board, however, board procedures are used.
A member recommended for discharge (Respondent) must be offered a hearing by an administrative discharge board if the command seeks to characterize the Respondent’s service as Under Other Than Honorable Conditions (also known as “UOTHC” or “OTH”). In addition, there are other criteria that entitle a Respondent to a board hearing, though these criteria differ slightly from service to service. Some examples of the criteria that would automatically entitle a Respondent to a board hearing are:
An administrative discharge board is comprised of three (3) members senior in rank to the Respondent, a Legal Advisor (typically a JAG), and a Recorder, who serves as the “prosecutor” and represents the command. Board proceedings are administrative in nature and the board is not bound by formal rules of evidence. Thus, the board may consider information which might not be admissible at a court-martial. Further, the board’s decisions are based upon a preponderance of the evidence presented, rather than beyond a reasonable doubt.
At an administrative board, the Respondent has a variety of rights. These include:
When the administrative board convenes, the board considers all the evidence, both for and against the Respondent. In closed session deliberations, the board members then vote upon the following decisions:
These findings of fact and recommendations are forwarded to the Respondent’s chain of command. Generally, the board’s findings of fact and recommendations are binding upon the chain of command, although there are some service-specific exceptions.
Contrary to popular belief, one’s discharge or discharge characterization is not automatically upgraded after six (6) months. While there are procedures in place whereby one can request relief from the Discharge Review Board or the Board for Military Corrections, as a general rule, one’s military discharge basis and characterization will likely follow them for the rest of their life. For that reason, it is imperative that a military member facing administrative discharge is represented by a lawyer experienced in military law and discharge board litigation.
Grover H. Baxley is the founding attorney of JAG Defense. As a former member of the U.S. Air Force Judge Advocate General’s Corps, Mr. Baxley now provides highly experienced representation for military members in all branches of service all over the world.
Army E-4 was charged with possession of child pornography and was facing the possibility of 10 years confinement, a dishonorable discharge, and a sex offender registration. At his Article 32 hearing, our knowledgeable cross-examination of the government’s forensic computer expert highlighted the government’s inability to prove that our client ever viewed the files of child pornography that were found on his computer. As a result, the government WITHDREW AND DISMISSED the charge against our client.
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