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Identify the principles of military justice

Identify the principles of military justice including criminal misconduct, jurisdiction, investigations, soldiers' rights, search and seizure, restriction, administrative separations, non-judicial and judicial punishments, and unlawful command influence.

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OBJECTIVE

Action: Identify the principles of military justice including criminal misconduct, jurisdiction, investigations, soldiers' rights, search and seizure, restriction, administrative separations, non-judicial and judicial punishments, and unlawful command influence.

Condition: Given classroom instruction and detailed discussion by an Army JAG attorney.

Standards: IAW Manual for Courts-Martial, AR 27-10, AR 601-280, and AR 635-200.

OVERVIEW

Sources of Military Law

Military Jurisdiction

Search & Seizure

Interrogations & Soldiers' Rights

Administrative Action

Non Judicial Punishment

Court-Martial Process

Crimes & Related Misconduct

Homosexual Policy

Fraternization

OSJA
Office of the Staff Judge Advocate

ATTORNEY-CLIENT
PRIVILEGE

Generally, only information provided to legal assistance attorneys or Trial Defense Service (TDS) attorneys is afforded attorney- client privilege.

Don not seek personal advice from attorneys other than legal assistance or TDS.

Do not confess to your instructor.

SOURCES OF
MILITARY LAW

JURISDICTIONS

SOVEREIGN -- Any Nation

UNITED STATES

STATE

COUNTY

CITY

PERSONS SUBJECT
TO UCMJ

Active Duty Soldiers

Service Academy Cadets (not ROTC)

Reservists and Guardsmen (if offense committed while in federal service and tried prior to discharge)

Active Duty Retirees (requires HQDA approval)

PROBABLE CAUSE
SEARCHES

Commander's Search Authorization:

Based on probable Cause:

Reasonable Belief (More more likely than not) that evidence or person will be found at location to be searched;

Timely information (Not a Stale Tip); &

Reliable Source of information (Credible).

PROBABLE CAUSE
SEARCHES

Commander's Search Authorization:

Search only areas where evidence could reasonably be expected to be found.

Seize any other items of contraband found during a lawful search.

CONSENT SEARCHES

Consent must be freely given & may be limited.

Scope of search may be limited by the soldier and may be withdrawn at any time.

Article 31 rights advisement is recommended but not required.

APPREHENSION SEARCHES

You must have a reasonable belief that the soldier has committed an offense.

You may search the person of the suspect and the area within the suspect's immediate control.

Purpose: safeguard destructible evidence and protect apprehending officials from weapons or persons which may harm them.

INSPECTIONS & INVENTORIES

Probable cause NOT required.

Purpose : To ensure property accountability, health, welfare, military fitness, & good order and discipline of the unit, in whole or in part.

Also called "Health& Welfare" inspections.

An inspection may not be a subterfuge for a search for evidence.

INTERROGATION &
ARTICLE 31 RIGHTS

BEFORE questioning a suspect:

(1) Advise him of his rights against self-incrimination.

(2) Advise him of his right to legal counsel at all critical stages of the criminal process.

(3) Ensure he understands his rights. If he decides to waive his rights and submit to questioning, ensure his decision is made voluntarily (DA Form 3881).

ADMINISTRATIVE ACTIONS

COUNSELING

REPRIMANDS

CORRECTIVE TRAINING

BARS TO REENLISTMENT

WITHHOLDING PASS PRIVILEGES

ADVERSE EVALUATION REPORTS

REVOCATION OF SECURITY CLEARANCE

MOS RECLASSIFICATION

ADMIN. REDUCTION IN RANK

ADMIN. SEPARATIONS

Administrative Actions

Counseling

Positive and negative

DA Form 4856

Corrective Training

Must address a deficiency

Not a form of punishment

Withholding Privileges

Unlike rights, privileges can be withheld without due process

Should be related to the deficiency

CHAPTER 5-8 -- Parenthood

CHAPTER 5-13 -- Personality disorder

CHAPTER 9 -- Alcohol/Drug Rehab. Failure

CHAPTER 10 -- In Lieu of Court-Martial

CHAPTER 11 -- Entry level

CHAPTER 13 -- Unsatisfactory Performance

CHAPTER 14 -- Misconduct

CHAPTER 15 -- Homosexuality

CHAPTER 18 -- Overweight

CHAPTER 14
Misconduct

Paragraph 14-5 -- Civilian conviction

Paragraph 14-12a -- Pattern of minor military infractions

Paragraph 14-12b -- Pattern of misconduct

Paragraph 14-12c -- Serious offense

Honorable, general, or OTH discharge

AR 635-200, PAR. 1-18
MAGIC COUNSELING

At least one "magic counseling" before a soldier can be separated under Chapter 5-13, 13, 14-12a and 14-12b (but NOT 14-12c).

Must state:

Reason for counseling;

That separation could occur if soldier does not improve; AND

What could happen if soldier is separated (loss of benefits, prejudice in civilian employment, etc.)

CHARACTERIZATION OF DISCHARGES

UNCHARACTERIZED:

Entry Level (1-180 days Active duty)

ADMINISTRATIVE DISCHARGES:

Honorable

General

Other Than Honorable (OTH)

PUNITIVE DISCHARGES:

Bad Conduct Discharge (BCD)

Dishonorable Discharge (DD)

Article 15 Types

Summarized (no right to counsel)

Formal (right to counsel)

Company Grade

Field Grade

General Officer

Burden of Proof (for "Guilty"):

Beyond a Reasonable Doubt

Article 15 Punishment

Punishment Company Grade __ Field Grade

Extra Duties 14 Days 45 Days

Restriction 14 Days 60 Days

Reduction (E1-E4) One rank All Rank

Forfeiture 7 Days Pay 1/2 mnth x 2

*Summarized Art 15: 14 Days Extra Duty & 14 Days Restriction only!!

Article 15 Appeals
Imposing Commander May:

Recommend denial of appeal

Suspend any or all punishment

Remit

Restore any or all rank or pay

Set Aside

Article 15 Appeals

Appeal Authority May:

Deny the appeal

Take any other action the imposing commander may take

Neither the imposing commander nor the appeal authority can increase the punishment

FRATERNIZATION

APPLICABILITY

This revised policy applies to

Relationships between Army personnel (Active or Reserve soldiers)

Relationships between Army personnel and personnel of other military Services

The term "officer" includes both commissioned and warrant officers

This revised policy is effective immediately except as noted.

What Has Not Changed

What Has Not Changed


What Has Changed

Personal Relationships

Dating, shared living accommodations, and intimate or sexual relationships between officer and enlisted are prohibited!

Exceptions:

Marriages that exist now or are entered into prior to 1 Mar 00.

Relationships that violate policy only because of the promotion or change in status of one military member (for instance, two enlisted soldiers are married and one is commissioned through OCS).

Personal Relationships

For ARNG/USAR only, personal relationships that exist due to civilian acquaintanceship (unless individuals are on active duty other than Annual Training)

For Regular Army, personal relationships with a member of the ARNG/USAR that exist due to civilian (off duty) association (unless the ARNG/ USAR soldier is on active duty other than Annual Training).

Business Relationships

Business Relationships

Social and Family Relationships

Gambling

Commander's Options

The
Court-Martial Process

Investigation

Preferral

Article 32 Investigation (GCM)

Referral

Motions

Trial

Clemency (RC 1105)

Appellate process

MILITARY
COURT LEVELS

Court-martial (trial court)

Army Court of Criminal Appeals

U.S. Court of Appeals for the Armed Forces

U.S. Supreme Court

MILITARY JUSTICE

COURTS-MARTIAL:

SUMMARY

SPECIAL

BCD SPECIAL

GENERAL COURT-MARTIAL (GCM)

Summary Court-Martial

Required Membership Convening Authority

1 Commissioned Officer Battalion Commander

Persons Triable Maximum Punishment

Enlisted Soldiers Confinement - 1month Reduction, Forfeiture: Offenses Triable 2/3 of 1 month's pay

Any non-capital offense

punishable by the UCMJ

B.CD SPECIAL
Court-Martial

Required Membership Convening Authority

Military Judge Division/ Post Commander

3 or more members

Trial/Defense Counsel Maximum Punishment Bad Conduct Discharge

Persons Triable Confinement - 6 months

Enlisted Soldiers Reduction, Forfeiture: 2/3 of Pay per month for 6 months

Offenses Triable Fine

Any non-capital offense

punishable by the UCMJ

GENERAL
Court-Martial

Required Membership Convening Authority

Military Judge Division/ Post Commander

5 or more members

Trial/Defense Counsel Maximum Punishment Persons Triable Dishonorable/Bad Conduct

Enlisted Soldiers Discharge

Commissioned Officers Life / Death

Warrant Officers Reduction

Offenses Triable Forfeiture: Total

Any capital offense Fine

punishable by the UCMJ

Crimes


CAPITAL CRIMES

Article

Desertion (wartime) 85

Disobeying order of superior 90 commissioned officer (wartime)

Mutiny & Sedition 94

Misbehavior before the enemy 99 (9)

Subordinate compelling surrender 100

Improper use of a countersign 101

Forcing a Safeguard 102

CAPITAL CRIMES

Article

Aiding the enemy (knowingly) 104

Spies (mandatory if wartime) 106

Espionage 106a

Improper hazarding of vehicle 110

Misbehavior of sentinel (lookout) 113

Murder (premed. or felony) 118

Rape 120

Conduct unbecoming officer 133

CRIMINAL
MISCONDUCT

Rape DD & Life

Indecent Assault DD & 5 Yrs

Fraternization DD & 2 Yrs

Assault 3 MOS to DD & 20 Yrs

Extortion DD & 3 Yrs

Threat DD & 1 Yr

Indecent Exposure BCD & 3Yrs

Disrespect BCD-DD & 1-5Yrs

Sodomy DD & 5-20 Yrs

Indecent Language DD & 2 Yrs

Prostitution/Pandering DD $ 1, 5 Yrs

Attempts, Solicitation, Conspiracy

Unlawful Command
Influence

A superior commander cannot tell a subordinate commander how to dispose of disciplinary problems under the UCMJ.

Each commander is required to exercise independent judgment in all UCMJ cases.

HOMOSEXUAL CONDUCT

THE UNIFORM CODE OF MILITARY JUSTICE RECOGNIZES HOMOSEXUAL CONDUCT IN THE WORKPLACE AS A CRIME.

SAM: STATEMENT, ACT, MARRIAGE.

"SAM"

Make a Statement

Perform an Act

Contract a Marriage

HOMOSEXUAL CONDUCT

You have violated the DoD policy on

Homosexuality if:

1. You are not a commander and you initiate an investigation.

2. Accuse a soldier without credible evidence

3. Require a soldier to reveal their sexual orientation.

Extremist Organizations

Participation is inconsistent with military service

Organizations or activities which advocate racial, gender, ethnic hatred or intolerance

Commanders have widespread authority to prohibit soldiers from participating in these activities

Extremist Organizations

Prohibitions

1. Public demonstration or rally

2. Attending in Uniform

3. Fundraising

4. Recruiting or Training

5. Visible Leadership Role

6. Distributing Literature

HAZING

Any conduct by a service member regardless of rank, that is cruel, abusive, humiliating, repressive, demeaning or harmful to another service member, regardless of rank.

HAZING

Abusive or Harmful Practical Jokes

Branding

Tattooing

Body Painting

"Blood Wings" Ceremonies

Forced Consumption of Alcohol

CYA

CALL

YOUR

ATTORNEY