Whether a service member is informed of the charges or not, the process will continue. Here’s what happens behind the scenes: Initially, the charge sheet will be delivered to the unit’s commanding officer. The platoon leader, OIC, company level commander, or some other officer at the first level of command will make a determination about the seriousness of the offense and decide whether to handle the charge at his level or send it higher.
If the charge is not considered serious, the commander or OIC will ask the unit legal officer or Senior Staff Non-Commissioned Officer in Charge to draft a unit punishment book (UPB) in order to conduct a non-judicial punishment proceeding which is also known as an Article 15 and Captain’s Mast. If the first level commander or OIC believes the charge is too serious to be resolved at an Article 15 hearing or non-judicial punishment, he will send the charge sheet to the next commander in the chain of command who is normally a battalion commander, squadron level commander, or ship’s Captain. This commander is often also known as the Convening Authority if he or she has the authority to convene courts-martial. Once the battalion or squadron level commander or ship’s Captain receives the charge sheet, he or she will decide whether to hold a battalion / squadron level non-judicial punishment or Article 15, or in the Navy, a Captain’s Mast. If the commander decides to hold an Article 15 hearing, then the process may end there. If, however, he or she decides that the charges are too serious for an Article 15, they will send the charge sheet to the legal services office so that a prosecutor may be assigned to the case to investigate and prosecute. At about the same time, a similar copy of the file will be forwarded to the defense services office so that a defense lawyer may also be assigned.
Once the prosecutor receives the charges, he or she will draft a more formal charge sheet which will be used in the court-martial. Depending on the seriousness of the accusation, the charges may be referred to a Special or — the more serious — General court-martial. A Special court-martial is distinguished from a General court-martial by the maximum punishment that may be awarded. A special court martial has a maximum punishment of 1 year in confinement, forfeitures of 2/3 of all pay (but not allowances) for a period of 12 months, reduction to E-1, and a bad conduct discharge. A General court-martial on the other hand may carry a sentence of death, life in prison, or any other term of confinement depending on the severity of the charge, total forfeitures of all pay and allowances for the period of confinement, reduction to E-1, and dishonorable discharge or a dismissal in the case of officers.
A court-martial is just like the trials often seen in TV court dramas. It will have a judge, a prosecutor, a defense attorney, and if the defendant chooses, a jury made up of military members. Courts-martial must be conducted in accordance with very strict rules of procedure and evidence and require an experienced trial attorney who is thoroughly familiar with all the rules of evidence and procedure and who is comfortable in the court-room to achieve the best results possible for an accused service member.
In a court-martial, the Government must present evidence and witnesses to prove its case of guilt beyond a reasonable doubt. The defendant also has a right to present evidence and witnesses and to demonstrate that the Government cannot prove its case beyond a reasonable doubt. Once all the evidence and witnesses are presented, lawyers give closing arguments and the jury deliberates on guilt and innocence. In the military justice process, the jury does not have to be unanimous. If 2/3 agrees on guilt, then the defendant is guilty.
If a defendant is found not guilty, then everything ends. If, however, a finding of guilty is made, the defendant will be sentenced. And depending on the finding and the sentence, the defendant will have a right to appeal the conviction. The appeal is automatic if the defendant is sentenced to one year in prison or receives a punitive discharge of any type.
In a case when a defendant is found guilty but does not receive a bad conduct discharge, the military will almost always begin what is known as administrative separations processing. This will force the defendant who has just gone through a court-martial to have to defend him or herself all over again in front of an administrative separations board which may award a discharge other than an honorable discharge. An experienced attorney is essential during this phase as well to ensure that the service member’s rights are not abused.
A military defendant is entitled to consult with a lawyer at any time he or she is accused and to be represented by an attorney during a court-martial. The above explanation of the military justice process is a brief overview of a very complex process that often frustrates and demoralizes individuals who find themselves at the center of it. Our experienced, aggressive, and knowledgeable attorney is talented at skillfully navigating the military justice process and achieving successful results for our clients.