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MILITARY JUSTICE

MILITARY JUSTICE. MILITARY JUSTICE. Purpose Legal Sources Key Personnel Jurisdiction Command Influence Rights Warning Search and Seizure. Inspections Urinalysis Nonpunitive Nonjudicial Soldier’s Rights Art. 15 Hearing Punishments. OUTLINE. OUTLINE.

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MILITARY JUSTICE

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  1. MILITARY JUSTICE

  2. MILITARY JUSTICE

  3. Purpose • Legal Sources • Key Personnel • Jurisdiction • Command Influence • Rights Warning • Search and Seizure • Inspections • Urinalysis • Nonpunitive • Nonjudicial • Soldier’s Rights • Art. 15 Hearing • Punishments OUTLINE

  4. OUTLINE • Appeals • Filing • Pretrial Restraint • Preliminary Inquiry • Initiation of Court-Martial • Summary Court-Martial • Investigating Officer

  5. PURPOSES OF MILITARY JUSTICE • Promote Justice • Maintain Good Order and Discipline • Promote Efficiency and Effectiveness • Strengthen the National Security

  6. LEGAL SOURCES OF MILITARY JUSTICE • U.S Constitution • Articles of War • Uniform Code of Military Justice • Manual for Courts-Martial, U.S. 1984 • Local Regulations • Court Decisions

  7. KEYPERSONNEL IN THE MILITARY JUSTICE SYSTEM • Commander • Staff Judge Advocate • Trail Counsel • Defense Counsel • Military Judge • Legal Specialists • Court Reporter

  8. UCMJ JURISDICTION Over the Person: • Active Duty Soldiers • Reserve Soldiers, certain times • U.S. Academy Cadets • National Guard in Federal Service • Others Over the Offense: • Concurrent Civilian Jurisdiction? • Worldwide Jurisdiction

  9. UNLAWFUL COMMAND INFLUENCE • A Superior Cannot: • Order a Subordinate to take specific action • Intimidate or Discourage a Witness • Reprimand or give unfavorable ratings • for conduct as court or board member

  10. IMPORTANCE OF PROPER COMMAND CONTROL • Personal Importance • Discipline, Efficiency, and Integrity of • the system • Civilian Impressions and Reputation • of the system

  11. RIGHTS WARNING • Nature of the suspected offense • Right to remain silent • Any statement made can be used at trial • Right to consult an attorney prior to questioning and have attorney present during questioning • Right to representation at all critical stages

  12. SEARCH AND SEIZURE • Probable Cause: • A reasonable belief that items connected with • criminal conduct are located in a particular • place or on a certain person. • Analyze “totality of circumstances” • What is where and when? • How do you know? • Why should I believe you?

  13. SEARCHES NOT REQUIRING AUTHORIZATION • Consent search: • Person sets limits • Good insurance • Search incident to apprehension: • Reasonable Grounds must exist • Search person and area of immediate control • Exigent circumstances: • Evidence may be destroyed or removed • Common in cases involving cars and drugs • Administrative inspections

  14. ADMINISTRATIVE INSPECTIONS • Commanders have the right and duty to inspect troops and equipment. • Primary Purpose is to ensure security, fitness, • property accountability, or good order and discipline -- NOT collect evidence of a crime. • If contraband is found during inspection it • may be seized as evidence. • Not a “cover up” for a search; military court will scrutinize.

  15. ADMINISTRATIVE INSPECTIONS • Key Points to Consider: • Be prepared to articulate your purposes. • Tailor the inspection to your purpose. • Limit discretion and give clear guidance. • Pre-plan inspections. • “Enhanced Burden” Rule: Need clear and • convincing evidence of proper purpose if: • Done immediately after report of crime • Specific soldier chosen for inspection • Soldier inspected differently

  16. URINALYSIS RESULTS Article 15 Court- martial Admin. Separation Results Obtained by: Inspection Probable cause Consent Fitness-for-duty Yes Yes Yes Yes w/ Yes Yes Yes No Yes Yes Yes No Honorable Discharge

  17. NONPUNITIVE ENFORCEMENT • Good leadership • Counseling: Oral and written • Reprimands: Oral and written • Enlisted administrative separations • Corrective training • Bars to Reenlistment • Withhold benefits and privileges

  18. Correct, educate, reform soldiers. • Avoid the stigma of a court-martial. • Promote efficiency in discipline. • Minor crimes under UCMJ • Other administrative measures fail or • they are not appropriate NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ • Commanders authorization to impose punishment • Purposes of an Article 15: • When is an Article 15 appropriate?:

  19. NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ • No right to lawyer • Extra duties and restriction • Records not admissible at Court-martial. • Provides “formal” record • Significant punishment and rehab potential • Pay, reduction, extra duties, restriction • Right to consult with lawyer • Types of Article 15’s • Summarized: • Formal:

  20. NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ • Any officer in command may impose Article 15 • Limitations on Article 15 Authority: • Superior commander cannot direct subordinate • to issue Article 15 or impose punishment • Superior commander may withhold all or • partial Article 15 authority

  21. ACCUSED’S RIGHTS AND OPTIONS RightsFormalSummarized Art. 31B WarningYes Yes Demand Trial Yes Yes Consult Lawyer Yes No Open Hearing Yes No Spokesperson Yes No Have Witnesses Yes No Appeal Yes No

  22. ARTICLE 15 HEARING • Purpose: Determine if soldier committed offense • Standard: Proof beyond a reasonable doubt • Persons present: Commanders option; usually: • Accused • 1SG/SGM • Supervisory chain • Commander’s actions: • Consider evidence • Decide guilt or innocence • Impose punishment • Explain right to appeal

  23. ARTICLE 15 PUNISHMENTS • Reduction in Rank • Correctional Custody • Forfeiture of Pay • Extra Duty • Restriction • Reprimand/Admonition

  24. Procedure: • Written appeal • Submitted thru imposing commander • Appellate authority: • Next superior commander • Actions on appeal: • Approve punishment • Mitigate (lesson) • Remit (forgive) • Suspend (hang over head) • Set aside (wipe out) ARTICLE 15 APPEALS

  25. FILING OF ARTICLE 15’s • Summarized: • Kept at unit for two years or until transfer • Formal: • E4 and below same as summarized • E5 and above are filed in OMPF, • restricted or performance side

  26. PRETRIAL RESTRAINT • General Rule: • An accused pending charges should • ordinarily continue normal duties. • Authorized upon Probable Cause that: • UCMJ offense committed • Accused committed it • Restraint is required to ensure the • accused’s presence or to prevent • foreseeable serious misconduct

  27. PRETRIAL RESTRAINT • Forms of Pretrial Restraint: • Conditions on Liberty • Restriction (in Lieu of Arrest) • Arrest • Confinement • Factors to consider; • Type of offenses committed • Strength of the evidence • Accused’s ties and finances • Accused’s character and record • Speedy Trial Issue!

  28. ORDERING PRETRIAL RESTRAINT • Restraint Other Than Confinement: • Notice to accused • Pretrial Confinement; • Contact your JA! • Notice to accused • 72 hour memorandum • Counsel for accused • Magistrate’s review • Military judges review

  29. COMMANDER’S PRELIMINARY INQUIRY • Immediate commander is required to • investigate allegations of criminal conduct • Commander determines format; usually informal • Purpose: • Determine facts surrounding allegations • bearing on guilt or innocence • Preserve evidence/Identify witnesses • Reach an informed decision on disposition • Approach: • Gather all reasonably available evidence

  30. INITIATION OF COURT- MARTIAL CHARGES • Is Court-Martial Appropriate? Consider: • Bottom up approach - solve at lowest level. • Any previous administrative action or NJP? • Seriousness of the offense. • Impact of the offense on victims, command, • Army, or the nation. • Appropriateness of punitive discharge or • long-term confinement/ level of court-martial • Strength of the case; can JA support trial?

  31. INITIATION OF COURT- MARTIAL CHARGES • Referral of Court-Martial Charges • Unit commander is usually the “accuser”. • Speedy trial issues: Consult your JA! • Charge and specification for each offense: • technical language; let JA prepare. • Timely notice to the accused. • Forward the charges with recommendation • Pretrial Agreement Process

  32. SUMMARY COURT-MARTIAL • One officer; Captain or above. • Detailed by convening authority to administer • military justice for minor offenses. • All-encompassing responsibility to gather • evidence, determine guilt, and assess punishment • DA Pam 27-7: detailed procedural guide. • Legal Advisor appointed

  33. INVESTIGATING OFFICER ARTICLE 32(b), UCMJ • Article 32(b): Thorough and impartial • investigation is required before every GCM • Purpose: • MCM purposes • Discovery • Preservation of testimony • One officer; usually field grade. • Judicial function • DA Pam 21-17: Detailed procedural guide. • Report of Investigation

  34. QUESTIONS?

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