Military Defense Attorney Defines 3 Levels of Court
Military service has its share of challenging situations, especially for those who’ve been in for several years and have greater areas of responsibility. With all the complex rules and regulations that apply, it’s easy to make mistakes. Sometimes they’re small and slide under the radar, but other times they may become part of your unit’s regular safety briefing. Or, perhaps you might find yourself in a bad command environment where small infractions are used to destroy careers.
In any event, at some point during your career, you could find yourself facing some form of discipline or punishment. Depending on the nature and degree of a violation and on the discretion of your chain of command, you could face a range of adverse actions, from an informal counseling to a court-martial, which is a criminal proceeding used to adjudicate violations of the punitive provisions of the Uniform Code of Military Justice (UCMJ). There are three levels of courts-martial that a Service Member can face, depending on the severity of a violation. From least to most severe, they are:
- Summary Court-Martial;
- Special Court Martial; and
- General Court Martial.
Each of these levels is initiated by a convening authority in the Service Member’s chain of command. The convening authority selects the appropriate level of court-martial, its members, and the charges to be referred. A convening authority has considerable discretion throughout the process as it decides whether to initiate a court-martial and, even after the fact, it can amend a sentence, but only in the defendant’s favor as it cannot alter a not guilty finding or increase the severity of any punishment.
Summary courts-martial are a unique part of the military justice system that have no real equivalent in the civilian criminal justice system. They involve a streamlined process for minor offenses, and provide fewer legal protections for the accused. In fact, although a summary court-martial is technically a criminal proceeding, Service Members are not provided with free defense counsel through the military, except for those serving in the Air force. However, even if not provided with defense counsel by the military, a Service Member always has the right to hire a civilian military defense attorney to represent him or her through the process.
Summary courts-martial are available for enlisted Service Members only and, even then, only for those who consent to their use. During the process, one active duty officer, usually an O-3 or above in the same service as the accused, has the duty to impartially and thoroughly review a case. There is no judge, jury or formal trial with all of the attendant rights. Because it’s a streamlined process with fewer rights for a defendant, the punishments available through a summary court-martial are very limited. At most, then can include:
- Confinement for up to 30 days;
- Hard labor for up to 45 days;
- Area restrictions for up to 60 days;
- Forfeiture of up to two-thirds of monthly pay for one month; and
- Reduction in rank (for the grade of E-5 and above, this is limited to reduction by one grade).
A conviction by a summary court-martial is not considered a federal conviction and does not result in the same loss of benefits as a special or general court-martial. That being said, a conviction at a summary court-martial could lead to a subsequent administrative separation or a bar on re-enlistment.
Special courts-martial are for more serious offenses, but can technically be used for any non-capital offenses under the UCMJ and for some limited capital offenses (those that can result in the death penalty). A special court-martial can be used only for individuals subject to the UCMJ and therefore is not used to try civilians or enemy combatants.
Unlike a summary court-martial, special courts-martial are presided over by a judge and run more like a civilian trial as there are phases for discovery and pre-trial motions. In addition to a judge, there is a panel of no fewer than 3 members who act like a jury. Accused Service Members do have the right to free military appointed counsel, but they also have the right to hire a civilian military defense attorney to defend them.
Whereas the punishments in a summary court-martial are very limited, a special court-martial has the authority to use any punishment authorized under the UCMJ, except that it cannot impose:
- Dishonorable discharge.
- Dismissal for officers.
- Confinement for more than 1 year.
- Hard labor for more than 3 months.
- Forfeiture of more than two-thirds of monthly pay.
- Forfeiture of pay for more than 1 year.
Given its sentencing restrictions, special courts-martial are comparable to proceedings for misdemeanors in civilian courts.
A general court-martial is used for the most severe offenses and would be similar to a felony proceeding in civilian court. Like a special court-martial, this forum involves a full trial and be used for any person subject to the UCMJ. It can also be used for “any person” who violates Article 83 (fraudulent enlistment, appointment or separation), Article 104 (aiding the enemy), and Article 106 (spying) which could conceivably include civilians or enemy combatants.
A general court-martial is composed of a panel of at least 5 members in cases involving non-capital offenses and 10 members in capital cases. A general court-martial can impose the maximum punishments authorized under the UCMJ, including death, life imprisonment, and dishonorable discharge.
Who Can You Turn To?
A court-martial proceeding can result in a variety of different outcomes, such as:
- A finding of guilt;
- A dismissal of charges;
- An alternative disposition through administrative action instead of court-martial;
- Forwarding to a superior commander with recommendations;
- Returning to a subordinate commander without recommendations; or
- Referral to a different level of court-martial.
With all of these potential outcomes and the many different ways that a case can be processed, it’s important to have an experienced attorney helping you as early in the process as possible, especially one who understands the military and its criminal justice system. When it comes to defending Service Members, the Law Offices of Haytham Faraj has the experience you need and an impressive track record you can trust. Call our office today at (312) 488-4041 to speak with a military defense attorney.