The Uniform Code of Military Justice, or UCMJ, is the legal framework that governs all members of the United States military. The UCMJ covers a variety of legal issues from apprehension and confinement of military personnel to regulations covering courts of military appeals.
History Of The Uniform Code Of Military Justice
The UCMJ has its roots in the Articles of War, which were enacted in June of 1775 by the Second Continental Congress.
A few months earlier the Provisional Congress of Massachusetts Bay set to paper the first written code of military justice in the Colonies, known as the Massachusetts Articles.
Other colonies followed suit. Connecticut, Rhode Island, New Hampshire, Pennsylvania and South Carolina codified military conduct in a similar manner. But then came the Articles of War.
69 Articles Of War To Govern The Whole Continental Army
The 69 Articles of War (later to be greatly expanded) regulated the Continental Army with specific applications and directives to cover many aspects of the profession of arms. One example is Article 15 from the revised 101 Articles of War (see below), dictating how U.S. military officers were to approach head-counting or “muster” duties to keep track of troops and horses for official purposes:
“Every officer who shall make a false muster of man or horse, and every officer or commissary of musters who shall willingly sign, direct, or allow the signing of muster-rolls wherein such a false muster is contained, shall, upon proof made thereof, by two witnesses, before a general court-martial, be cashiered, and shall be thereby utterly disabled to have or hold any office or employment in the service of the United States.”
Later, the United States Constitution would give a more permanent mandate to Congress to maintain and regulate military forces. When Section 8 of the U.S. Constitution was ratified in 1789 it gave Congress the power to authorize new military rules and regulations.
Expanding The Articles Of War
In 1806, a new set of Articles of War were drawn up, this time with 101 articles that were left within that organizational framework more than 100 years. The Uniform Code of Military Justice, once authorized, would be the first major revision and the new approach to military law.
That said, several more revisions would occur over the years including an important update in 1916 that required the jurisdiction of a general court-martial to be made concurrent with war tribunals and related proceedings. This update also made bringing charges of murder and rape for U.S. troops possible when such offenses occurred in peacetime outside the United States.
Other updates made significant changes, too. The Articles of War of 1948, for example, created the Bad Conduct Discharge and strengthened protections against self-incrimination by accused military members.
In 2018 Article 128b was added to address domestic violence including assault, intimidation, violation of a protective order, and damaging property or injuring animals in a domestic assault situation.
The Uniform Code Of Military Justice
The United States military would operate under the 101 Articles of War until the Uniform Code of Military Justice was passed by Congress in 1950. President Harry S. Truman signed the UCMJ into law. There have been changes since the passage of the UCMJ, some due to executive orders and some as a result of the passage of the National Defense Authorization Act of 2006 and the National Defense Authorization Act 2007.
As part of the 2016 Military Justice Act there was a review of the set of rules and regulations that dictate criminal offenses for service members and how they are adjudicated. Effective Jan. 1, 2019 the following changes were made:
- Replaces the offense of adultery with “extra-marital sexual conduct.”
- Broadens the definition of sexual intercourse, which now includes same-sex affairs.
- Legal separation is no longer considered adultery.
Protecting Junior Soldiers
- Stiffer penalties for recruiters, drill sergeants and others in “positions of special trust.” (UCMJ Article 93a)
- Maximum sentence was increased from two years to five years of confinement for those in authority engaging in prohibited sexual activities with junior Soldiers.
- Protects victims and those reporting crimes from retaliation.
- Stiff penalties for soldiers who wrongfully access unauthorized information on government computer or personally identifiable information (PII).
- Increased penalties for fraudulent use of credit cards, debit cards or other access devices to acquire anything of value.
- Cyberstalking is also now included as a stalking offense (Article 130).
- A “bench trial” by a judge alone can now determine guilt or innocence for many offenses.
- Expanded judges’ authorities to issue investigative subpoenas earlier in the process.
- The definition of burglary has changed to include breaking and entering any building or structure of another, anytime, with the intent to commit any offense.
- Penalty for wearing unauthorized medals of valor has increased from 6 months to a max of one-year confinement along with forfeiture of pay and a bad-conduct discharge.
12 Sections Of The Uniform Code Of Military Justice
The UCMJ features a dozen sections. They are as follows:
- General Provisions
- Apprehension and Restraint
- Non-Judicial Punishment
- Court-Martial Jurisdiction
- Composition of Courts-Martial
- Pre-Trial Procedure
- Trial Procedure
- Post-Trial Procedure and Review of Courts Martial
- Punitive Articles
- Miscellaneous Provisions
- Court of Military Appeals
Note that the UCMJ is concerned with the military justice system and is not concerned with being a comprehensive regulatory guide to every rule, executive order, military regulation, or other guidance.
No single rule book can anticipate every scenario that might be actionable under the military justice system. The Uniform Code of Military Justice is intended to create a consistent and consistently enforceable code of law to deal with those who are accused of crimes, misconduct, or other infractions that must be dealt with in a manner unique to the military and outside the scope of the civilian legal system.
Who Does The UCMJ Apply To?
The key to understanding who falls under the Uniform Code of Military Justice is the word “military”. There is a list of personnel who are governed by the UCMJ. They include, but may not be limited to, the following:
- All military members (active, reserve, or retired)
- Members of quasi-military organizations including the Public Health Service when those members serve with armed forces)
- Military prisoners
- Prisoners of war
- Certain civilians
The Supreme Court ruled against the court-martial of civilians accompanying the armed forces in the field during peacetime. Furthermore, some articles of the UCMJ are only used to punish members of the armed forces.
How Should We View The UCMJ?
The Uniform Code of Military Justice is more or less a complete set of criminal laws. Some laws are similar or identical to non-UCMJ laws against murder, drunk driving, theft, etc. but other UCMJ rules are designed to protect good order and discipline.
Some actions classified as crimes in the UCMJ are unique to military service. The crimes of desertion, absence without leave, disrespect towards superiors, failure to obey orders, dereliction of duty, conduct unbecoming… these have no real parallels in the civilian criminal justice system.
The UCMJ also addresses crimes committed “before the enemy” that have few if any parallels in civilian law. Improper use of countersign, the dereliction of duty by a sentinel, misconduct as a prisoner, aiding or providing comfort to the enemy, spying, and espionage…all of these are also addressed in the UCMJ.
Does The UCMJ Take Precedence Over Civilian Law?
This is a complex question. The short answer is no. The Apprehension And Restraint section of the UCMJ tell us, “Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial”.
So it’s easy to see that someone in uniform who violates civilian laws may be turned over to the proper authority for trial. But when offenses are committed overseas in another country, this issue gets more complicated.
UCMJ Rules And The Status Of Forces Agreement (SOFA)
The UCMJ is enforceable as American law in American territories, but when military troops are stationed overseas, the United States Military may (or may not) have a Status Of Forces Agreement that determines what is to happen, should a United States military member violate the laws of the host nation.
SOFA agreements are negotiated on a case-by-case basis and there is no specific set arrangement a military member can count on as a universal. All countries negotiate their SOFA arrangements with the United States individually.
In some cases, the SOFA agreement is such that the host nation promises to let the U.S. military justice system handle situations where lawbreaking and misconduct occurs. In these such cases, the UCMJ would apply as fully as permitted or appropriate for the situation.
In other cases, the U.S.A may have a SOFA agreement that allows for some alternative handling of a violation of host country laws. Some nations may not permit a SOFA agreement and insist on having infractions dealt with in the host country’s preferred way. This is not, in the eyes of military leadership, an ideal situation. In most cases, commanders and military legal experts prefer to keep such problems “in-house”.
UCMJ Rules For Judicial And Non-Judicial Punishment
Not all the provision of the Uniform Code of Military Justice require a court-martial or trial-like procedure. Just as there are minor infractions of civilian laws, there are minor infractions of the UCMJ that do not require a trial, arrest, confinement, or other punitive measures that require legal counsel.
Non-Judicial Punishment Under the UCMJ
Section Three of the UCMJ addresses non-judicial punishment. Consider the section that discusses what a commander may do in lieu of judicial 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” to include the following for officers under the commander’s authority, “Restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days”.
In cases where if imposed by an officer exercising general court-martial jurisdictions or an officer of general flag rank in command:
- Arrest in quarters for not more than 30 consecutive days
- Forfeiture of not more than one-half of one month’s pay per month for two months
- Restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days
- Detention of not more than one-half of one month’s pay per month for three months
In cases where the punishment is required for “other personnel” under the officer’s command, the UCMJ prescribes the following options:
- If imposed upon a person attached to or embarked in a vessel, confinement on bread and water or diminished rations for not more than three consecutive days
- Correctional custody for not more than seven consecutive days
- Forfeiture of not more than seven days’ pay
- Reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction
- Extra duties, including fatigue or other duties, for not more than 14 consecutive days
Restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days
- Detention of not more than 14 days’ pay
Non-judicial punishment is often referred to as Article 15 punishment, but depending on the branch of military service may be referred to as Captain’s Mast (Navy) or Office Hours in the Marine Corps. Article 15 punishment is less severe than a court-martial but anyone due to receive Article 15 punishment may refuse it and elect a court-martial instead.
UCMJ Rules For Judicial Punishment
The Uniform Code of Military Justice provides for three different types of courts-martial, each one appropriate for a specific level of offense depending on circumstances and the recommendation of a commander or the military justice system.
The Summary Court-Martial is the lowest form of military judicial punishment trial/proceeding and may be presided over by a single commissioned officer.
According to the UCMJ, Summary courts-martial have the power to try anyone subject to military law “except officers, cadets, aviation cadets, and midshipmen” and the Summary court-martial may be used for “noncapital offenses”.
Furthermore, “No person with respect to whom summary court-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate.”
The punishment phase of a Summary court-martial can result in any punishment except “death, dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, hard labor without confinement for more than 45 days, restrictions to specified limits for more than two months, or forfeiture of more than two-thirds of one month’s pay”.
The jurisdiction of the Special court-martial under the UCMJ includes all persons “subject to this chapter for any noncapital offense made punishable by this chapter” of the UCMJ and, “under such regulations as the President may prescribe, for capital offenses.” This type of court-martial is presided over by:
- A panel of “not less than three members” or
- A military judge and not less than three members, or
- Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in clause (1)(B) so requests
The punishment phase of a Special court-martial can include any authorized punishment except “death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months.”
Furthermore, this portion of the UCMJ says that a bad-conduct discharge may not be adjudged “unless a complete record of the proceedings and testimony has been made, counsel having the qualifications prescribed under section 827(b) of this title (article 27(b)) was detailed to represent the accused, and a military judge was detailed to the trial”.
There is an exception in cases where a military judge could not “be detailed to the trial”, where the convening authority is required to submit a detailed written statement explaining the reasons why a military judge could not be present as required otherwise.
A general court-martial is the highest judicial proceeding of the three. It is administered by:
- A military judge and not less than five members, or
- Only a military judge. The accused must consent to this and/or request such a proceeding in writing or otherwise “on the record”. The judge must also approve.
The general court-martial has the authority to try anyone subject to the UCMJ for any offense punishable under it. The punishment phase of the general court-martial may include “any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter.”
General courts-martial may also try anyone who via the laws of war is subject “to trial by a military tribunal and may adjudge any punishment permitted by the law of war.” Cases, where the death penalty may be appropriate, may have certain exceptions in the “laws of war” scenarios.
Court Of Military Appeals
Those subject to UCMJ punishment via a court-martial may have recourse through the Military Court of Appeals. According to the final chapter of the UCMJ, “There is a court of record known as the United States Court of Military Appeals. The court is established under Article 1 of the Constitution. The court is located for administrative purposes only in the Department of Defense”.
A court of military appeals may correct erroneous findings, reduce a sentence that seems excessive, and is restricted in certain ways where the verdict itself is concerned. “… the Court may only affirm findings of guilty and the sentence or such parts of the sentence that it finds correct in law and fact.”
When reviewing the record of a court-martial the Court may “weigh the evidence, judge the credibility of witnesses, and determine disputed questions of fact, recognizing that the trial court saw and heard the witnesses”. However, the court may not change a verdict of “not guilty” to “guilty” and cannot increase the severity of a sentence.
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