Criminal Law

Military Versus Civilian Court Authority

The military has its own set of laws to deal with crimes: the Uniform Code of Military Justice (UCMJ).

When military service members are involved in crimes, either on or off a military base, they can be prosecuted in either military court or civilian court. And while civilian laws may be broken during the commission of a crime, the military has its own set of laws to deal with crimes.

Uniform Code of Military Justice (UCMJ)

The Uniform Code of Military Justice (UCMJ) is the system of rules that guide the military criminal process. It is used in the military court system, which is completely separate from the civilian court system. Members of the military can be tried and convicted in a court-martial (military court) under these rules.

The UCMJ covers the majority of the members of the military. This includes members of the Air Force, Army, Coast Guard, Marines and Navy. It also includes members of the military reserves while in active service.

Military and Civilian Court Authority

Military courts have exclusive authority over purely military crimes. Some examples of purely military crimes include:

  • mutiny
  • sedition
  • failure to obey an order, and
  • insubordinate conduct.

Most crimes, however, violate both civilian and military law. Examples include DUIs, robbery, assault, and murder. If a crime violates both military and state civilian law, it may be tried by a military court, a civilian court, or both. A military member can't be tried for the same misconduct by both a military court and another federal court, but he can be tried for the same misconduct by both a military court and a state court.

Crimes by service members are more often tried in military court than civilian court. Military court uses three types of "courts-martial." Here are the types of courts-martial and the penalties that the courts have the authority to impose.

Types of Military Courts-Martial

Under the UCMJ, there are three types of military courts-martial: summary, special, and general. Each one is for different levels of crime and the maximum punishments vary at each level.

A summary court-martial is used to resolve minor crimes under simple procedures. One commissioned officer, called a summary court-martial officer (SCMO), runs the summary court-martial and acts as prosecutor, judge, and jury. The officer will investigate the facts of the case, ask questions, and make a decision based on the evidence available. The maximum penalties include:

  • confinement of 30 days
  • hard labor without confinement for 45 days
  • forfeiture of two-thirds' pay per month for one month, and
  • reduction to the lowest pay grade.

Note that, for service members with higher pay grades (E5 and above), confinement or hard labor can't be imposed, and their pay grade can be reduced only to the next lower level.

A special court-martial is usually used for crimes that are considered misdemeanors, such as drug use, absence without leave, desertion, and disobeying orders. A military judge presides over the court-martial and at least three enlisted members act as panel members (the jury), unless the accused requests to be tried by a military judge alone. The maximum penalties that can be imposed include:

  • confinement for one year
  • hard labor without confinement for up to three months
  • forfeiture of two-thirds’ pay per month for up to one year
  • reduction to the lowest pay grade, or
  • bad-conduct discharge.

A general court-martial is used for the most serious crimes, such as robbery, drug dealing, arson, sexual abuse, rape, or murder (felonies in civilian criminal trials). It's made up of a military judge and not less than five enlisted members as panel members, unless the accused asks for a military judge alone to decide the case. A general court-martial can impose any punishment not prohibited by the UCMJ, including confinement, forfeitures of pay, and dishonorable discharges. In some cases, a death sentence or confinement for life without the possibility of parole is possible.

Questions for Your Attorney

  • If I am arrested for committing a crime, do I have any say as to where I will be prosecuted?
  • Does a state court have civilian authority if the crime took place on a military base?
  • Do I have the same due process rights in both civilian and military courts?

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