Military Court Martial Process

What happens when a member of the military is charged with a crime? The answer will depend on the type of crime that is committed. However, military service members who break the law may be subject to a court-martial. A court-martial is basically the military’s version of the judicial system. A court-martial has jurisdiction over any crime a military service member commits. If a California state law is broken, servicemembers can also be tried in a California state court.

If you are a military servicemember and have been charged with a crime it is important to speak with an attorney. Our civilian military defense attorneys are familiar with both civilian and military criminal law. We have more than 18 years of experience defending veterans and soldiers before courts-martial and California state courts. We understand what is at stake, both professionally and personally, and will fight to make sure that your rights are protected. Contact our San Diego office today to schedule a free consultation.

Understanding the Court-Martial Process

The court-martial has jurisdiction over any crime committed by military servicemembers. This includes violations of the Uniform Code of Military Justice (UCMJ) and the California Penal Code. Violations of the UCMJ will be subject to a trial before the court-martial. Violations of the California Penal Code will be subject to trials before the court-martial and/or the state of California. This means that you could potentially be tried twice for the same crime. The military system and civilian system are two separate entities. As a result, there is no double jeopardy.

How does a case get before a court-martial? The following is a general overview of how a case may develop and be sent to a court-martial.

1. Accusation: When you are accused of violating the UCMJ or California Penal Code you will be brought to your Commanding Officer.
2. Probable Cause: Your Commanding Officer will listen to the accusations and determine whether there is probable cause to support the claim.
3. Confinement: If your Commanding Officer determines that probable cause exists, you can be subject to confinement for 72 hours. You must be told why you are being confined. The charges will be referred to a convening authority.
4. Reading of Charges: The court-martial process officially begins. The charges you face will be read to you in the presence of your Commanding Officer and an unbiased third party.
5. Court-Martial Assignment: The convening authority will review the charges and determine which level court-martial will hear your case.

There are three different types of court-martial: General Courts-Martial, Special Courts-Martial, and Summary Courts-Martial. The level at which your case will be tried will depend on the severity of the crime you are accused of committing.

General Courts-Martial

The General Courts-Martial is the level where the most serious crimes are tried. Serious crimes include murder, arson, robbery, and drug distribution. General Courts-Martial have jurisdiction over all military servicemembers who are accused of violating a section of the UCMJ.

The General Courts-Martial consists of a military judge and a jury of at least 5 members. If you do not want to be tried by a jury of your military peers you can formally request a bench trial. This request must be made before the proceedings begin. The request, which can be made in writing or orally on the record, must be approved by the sitting military judge.

You are entitled to a military defense attorney and, if you choose, a civilian military defense attorney. Since the General Courts-Martial is reserved for trials of the most serious offenses, defense attorneys are given a period of time before the proceedings begin to investigate and build a case.

Special Courts-Martial

The Special Courts-Martial is the level where moderately serious crimes are tried. Moderately serious crimes include assault, battery, drug use, and insubordination. Special Courts-Martial have jurisdiction over all military servicemembers who are accused of violating a section of the UCMJ.

The Special Courts-Martial consists of a military judge and a jury of at least 3 members. The members will include commissioned officers and warrant officers. If you are currently enlisted, you can request that one-third of the jury panel includes enlisted members. If you do not want to be tried by a jury of your military peers you can request a bench trial.

Summary Courts-Martial

The Summary Courts-Martial is the level where the least serious crimes are tried. Crimes heard before a summary courts-martial include some charges of misconduct, insubordination, and other minor infractions. Summary Courts-Martial have jurisdiction over enlisted members of the military.

The Summary Courts-Martial consists of a commissioned officer. There is no military judge or panel. Charges are tried before the sitting commissioned officer. A Summary Courts-Martial is more similar to an administrative hearing than a full-blown criminal trial. The sitting commissioned officer has limited authority to impose penalties.

Courts-Martial Penalties

The penalties you face for a conviction will depend on the courts-martial level at which your case is tried. The maximum penalties that can be imposed for each level courts-martial include:

General Courts-Martial

• Death penalty
• Confinement for life
• Forfeiture of all pay and allowances
• Dishonorable or bad-conduct discharge
• Reduction of pay to the lowest grade

Special Courts-Martial

• Bad conduct discharge
• Confinement for up to 12 months
• Forfeiture of two-thirds pay for a period of one year
• Reduction of pay to the lowest grade

Summary Courts-Martial

• Reduction of pay to the lowest grade
• Forfeiture of two-thirds pay for a period of one month
• Confinement for 30 days
• Hard labor for 30 days

Experienced Civilian Military Defense Attorney

If you have been charged with a violation of the UCMJ or California Penal Code it is important to speak with an attorney. Hiring an attorney who is familiar with the laws and procedures of the military and civilian court systems will increase your chances of success. The decisions you make today will impact your future. Do not hesitate to call our office to schedule a free consultation. We will review the charges against you, explain why it is important to assert a defense and answer the questions you have.