MILITARY JUSTICE AND YOU

2. MILITARY JUSTICE AND YOU

3. WHY DO WE HAVE A SEPARATE MILITARY JUSTICE SYSTEM? • PROMOTE JUSTICE • HELP MAINTAIN GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES • PROMOTE EFFICIENCY AND EFFECTIVENESS IN THE MILITARY • STRENGTHEN NATIONAL SECURITY

4. COMPARISON OF MILITARY AND CIVILIAN JUSTICE SYSTEMS • ARTICLE 32 HEARING v.s. GRAND JURY • RIGHT TO COUNSEL • JURY SYSTEM • GUILTY PLEAS

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

6. KEY PERSONNEL IN THE MILITARY JUSTICE SYSTEM • COMMANDER • Staff Judge Advocate • Trial Counsel • Defense Counsel • Military Judge • Legal Specialist/ Court Reporter

7. UCMJ JURISDICTION • OVER THE PERSON: • ACTIVE DUTY SOLDIERS & RESERVISTS WHILE ON AD • MILITARY ACADEMY CADETS AND MIDSHIPMAN • NATIONAL GUARD PERSONNEL IN FEDERAL SERVICE UNDER TITLE 10, U.S.C. • ENEMY PRISONERS OF WAR • OTHERS • OVER THE OFFENSE: • WORLDWIDE JURISDICTION • POSSIBLE CONCURRENT JURISDICTION

8. CRIMES UNDER THE UCMJ • COMMON LAW CRIMES • MILITARY CRIMES

9. Preliminary Investigation: • When are Rights Warnings Required? • Before any official questioningof an accused or suspect

10. WHAT IS THE SOURCE AND CONTENT OF THE WARNINGS? • Article 31, UCMJ, component • Nature of the suspected offense • The Right to remain silent • Any statement made can be used at trial • 5th Amendment/Miranda Component • Right to consult an attorney prior to questioning and have an attorney present during questioning • 6th Amendment Component • Right to representation at all critical stages

11. HOW TO CONDUCT A GOOD INTERVIEW • DEVELOP A LIST OF QUESTIONS BEFORE STARTING THE INTERVIEW USING THE ELEMENTS OF THE OFFENSE(S) IN PART IV OF THE MCM. • HAVE A THIRD PARTY SIT IN ON THE INTERVIEW IF POSSIBLE. THE OBSERVER TAKES NOTES. YOU ASK OPEN-ENDED QUESTIONS AND LISTEN.

12. HOW TO CONDUCT A GOOD INTERVIEW (cont.) • WRITTEN RIGHTS WAIVER CERTIFICATES AND SWORN STATEMENTS ARE GREAT, BUT NOT REQUIRED. DO THE BEST WITH WHAT YOU HAVE. • CONDUCT THE INTERVIEW IN A PLEASANT SETTING WITH AMPLE BREAKS TO AVOID A DUE PROCESS (COERCION) CHALLENGE.

13. SEARCH AND SEIZURE MESS IT UP AND GET YOUR NAME MEMORIALIZED IN AN APPELLATE COURT OPINION!

14. SEARCH AND SEIZURE • 4TH AMENDMENT • “The right of the people to be secure... against unreasonable searches and seizures, shall not be violated, and no warrants shall be issue but upon probable cause...”

15. SEARCHES NOT REQUIRING AUTHORIZATION • Consent Search • Voluntary consent (shown by clear & convincing evidence) • May be partial/limited • Good insurance, always ask for it

16. SEARCHES NOT REQUIRING AUTHORIZATION (cont.) • Investigative Detention/Frisks • IF DETAINING OR FRISKING, YOU GET TO SEARCH THE PERSON AND THE IMMEDIATE AREA SUBJECT TO HIS CONTROL

17. SEARCHES NOT REQUIRING AUTHORIZATION (cont.) • Exigent Circumstances • If delay threatens removal, destruction, or concealment of evidence

18. ADMINISTRATIVE INSPECTIONS • COMMANDERS HAVE THERIGHT AND DUTY TO INSPECT TROOPS AND EQUIPMENT • PRIMARY PURPOSE: TO ENSURE SECURITY, FITNESS (e.g.. HEALTH, SAFETY), OR GOOD ORDER AND DISCIPLINE - NOT EVIDENCE OF A CRIME

19. HANDLING EVIDENCE • PRESERVE CONDITION OF EVIDENCE • PRESERVE CHAIN OF CUSTODY

20. Then What? Offenses Should Be Disposed of in a Timely Manner, at the Lowest Appropriate Level

21. NON-PUNITIVE MEASURES TO MODIFY BEHAVIOR/CONDUCT • COUNSELING: ORAL AND WRITTEN • BAR TO REENLISTMENT • ADMONITIONS & REPRIMANDS • ADMINISTRATIVE REDUCTION • SEPARATION ACTIONS

22. Factors Considered When Choosing Your Course of Action: • Service Record • Nature of Offense • Harm Done • Punishment Available • Cooperation • Available Evidence

23. THE BAR TO REENLISTMENT • THE ARMY DESIRES TO RETAIN ONLY THOSE SOLDIERS OF HIGH MORAL CHARACTER, COMPETENCE, AND DEMONSTRATED ADAPTABILITY (AR 601-280). • INITIATION OF PROCEEDINGS REQUIRED FOR: FAILURE TO MAKE SATISFACTORY PROGRESS IN ARMY WEIGHT CONTROL PROGRAM, 2 CONSECUTIVE APFT FAILURES, REMOVAL FOR CAUSE FROM NCOES COURSES.

24. BAR TO REENLISTMENT -- PROCEDURES • INITIATE THE BAR • NOTICE TO AND REBUTTAL BY SOLDIER • APPROVAL OF BAR • PERIODIC REVIEW BY UNIT COMMANDER

25. BAR TO REENLISTMENT -- PROCEDURES • INITIATE THE BAR • NOTICE TO AND REBUTTAL BY SOLDIER • APPROVAL OF BAR • PERIODIC REVIEW BY UNIT COMMANDER

26. THE ADMINISTRATIVE REPRIMAND • OFFICIALLY DOCUMENTS MISCONDUCT OR POOR PERFORMANCE IN OFFICIAL FILES (AR 600-37) • AFTER INITIATED, SOLDIER MAY REBUT IN WRITING • FILING OF LETTER

27. ENLISTEDADMINISTRATIVE SEPARATIONS(AR 635-200) • SOLDIERS ALWAYS AFFORDED NOTICE & AN OPPORTUNITY TO RESPOND • ENTITLED TO A BOARD IF MORE THAN 6 YEARS OF SERVICE, OR OTHER THAN HONORABLE DISCHARGE SOUGHT

28. PUNITIVE OPTIONS • NONJUDICIAL PUNISHMENT (ARTICLE 15) • SUMMARY COURT-MARTIAL • SPECIAL COURT-MARTIAL • BAD CONDUCT DISCHARGE (BCD) SPECIAL COURT-MARTIAL • GENERAL COURT-MARTIAL

29. NONJUDICIAL PUNISHMENT “... any COMMANDING OFFICER may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial...”

30. ARTICLE 15 -- INITIAL RESPONSIBILITIES OF THE COMMANDER • PRELIMINARY INVESTIGATION • Whether offense was committed • Whether soldier was involved • Character & military record of the soldier • DA FORM 2627 or 2627-1 • NOTIFICATION OF SOLDIER

31. SOLDIERS’ RIGHTS IN ART 15’s • FORMAL ANDSUMMARIZED • Remain Silent • Examine Evidence • Present a Defense • Call Witnesses • Demand Trial by Court-martial • Have an Appeal • FORMAL ART 15’s HAVE ADDITIONAL RIGHTS, SEE NEXT SLIDE

32. SOLDIER’S RIGHTS IN ART 15’S • Additional rights available only in Formal Article 15’s (both Company Grade and Field Grade) • Consult with counsel • Have a spokesperson • Ask for an open hearing

33. HOW TO: ART 15 HEARING • PURPOSE: Determine if the accused committed the offense; and if so impose punishment • COMMANDER’S ACTIONS: • Consider the evidence presented • Decide guilt or innocence • Impose appropriate punishment • Explain rights to appeal • STANDARD: CO must be certain of guilt BEYOND A REASONABLE DOUBT.

34. ART 15 PUNISHMENTSCATEGORIES • Admonishment/Reprimand • Forfeiture of Pay • Restriction • Extra Duty • Reduction in Rank • Correctional Custody • Amount of punishment depends on rank of accused and imposer

35. ART 15 APPEALS • PROCEDURE; • Written appeal (some CO’s permit personal appearance) • Submitted thru imposing CO • APPELLATE AUTHORITY • Next highest level commander

36. FILING OF AN ARTICLE 15 • SUMMARIZED: KEPT IN UNIT (LOCAL) FILE FOR TWO YEARS OR TRANSFER • FORMAL: DEPENDS UPON PAYGRADE OF ACCUSED • E-4 and belowit is filed locally • E-5 and aboveit is filed in the OMPF

37. COURTS-MARTIAL SUMMARY SPECIAL BAD CONDUCT SPECIAL GENERAL

38. PREFER & FORWARD CHARGES PREFER & FORWARD CHARGES • DD FORM 458 (CHARGE SHEET), AND R.C.M. 307 PROVIDE INSTRUCTIONS • CHARGE & SPECIFICATION FORMAT • OATH & PERSONAL KNOWLEDGE or INVESTIGATION • FORWARD TO SCMCA WITH RECOMMENDATION

39. PRETRIAL RESTRAINT IS AUTHORIZED UPON PROBABLE CAUSE THAT: • UCMJ Offense has been committed, • Accused committed it; and • Restraint isREQUIREDto ensure the accused’s presence or to prevent foreseeable serious criminal misconduct

40. FORMS OF PRETRIAL RESTRAINT • Conditions on liberty • Restriction (in lieu of arrest) • Arrest • Confinement

41. PRETRIAL CONFINEMENT INFORM THE SJA!

42. SPEEDY TRIAL REQUIREMENTS • 120-Day Rule • 90-Day Rule

43. 10 COMMANDMENTS OF UNLAWFUL COMMAND INFLUENCE 1) Commander may NOT order a subordinate to dispose of a case in a certain way. 2) Commander must not have an inflexible policy on disposition or punishment. 3) Commander, if the accuser, may NOT refer the case. 4) Commander may neither select nor remove court members in order to obtain a particular result.

44. 10 Commandments of Unlawful Command Influence 5) No outside pressures may be placed on the judge or court members to arrive at a particular decision. 6) Witnesses may NOT be intimidated or discouraged from testifying. 7) The COURT decides punishment. Accused may NOT be punished before trial.

45. 10 Commandments of Unlawful Command Influence 8) Recognize that subordinates & staff may “commit” command influence that will be attributed to the CO, irregardless of his knowledge or intentions. 9) Commander may not have an inflexible attitude towards clemency. 10) If a mistake is made, raise the issue immediately.

46. RECAP OF MAIN TEACHING POINTS • Comparison of Military & Civilian Justice Systems • UCMJ Jurisdiction • Rights Warnings before official questioning • Search Authorization/ Admin. inspections • Nonpunitive Administrative Actions • Article 15, How to • Pretrial Restraint • Initiation of Court-martial Charges • Unlawful Command Influence

47. DoD POLICY ON HOMOSEXUAL CONDUCT

48. DoD Policy on Homosexual Conduct At the conclusion of this session, you will be able to: • State basic points of DoD Policy • Define Sexual Orientation • State Commander’s Responsibilities • Describe characteristics of credible information • List staff resources who can provide assistance

49. The Policy: Suitability is based on CONDUCT

50. SEXUAL ORIENTATION • Is a personal/private matter • Is “an abstract sexual preference for persons of a particular sex as distinct from a propensity to engage in sexual acts”