The Court Martial Process

Presumed Guilty

You’re reading this because you or someone close to you is under investigation, charged with a UCMJ offense, or somewhere in the court-martial process. The military justice system is not only complex, but it also has blatantly unfair aspects that you simply cannot ignore. The law says that you’re “innocent until proven guilty,” but military law enforcement, commanders, convening authorities, and prosecutors often think differently. In their eyes, a military accused is almost always viewed as guilty.

Noel Tipon has been in the court martial business for decades, as both an active duty military and a defense attorney and as civilian military defense attorneys. We know where the landmines in the court martial process are and we know how to avoid them. We’ve battled military investigators, prosecutors, convening authorities, judges, and appellate courts. Most importantly, we have a track record for winning. And that success begins with having a complete understanding of the military justice system and the court martial process, which can be broken down into the following areas.

  1. Under Investigation – (Presumed Guilty)
  2. Preferral Of Charges – (Government Overcharging)
  3. Article 32 Hearing – (A Paper Sham)
  4. Referral Of Charges – (Government Thinks it Has You)
  5. Arraignment – (Kicking Things Off)
  6. Motions Litigation – (Shaping the Battlefield)
  7. Trial – (Executing Under Pressure for a NOT GUILTY VERDICT)
  8. Sentencing Phase – (Mitigating the Damage)
  9. Appeals – (Last Chances)

Differences Between the Military and Civilian Court System and Process

The greatest difference between the military court system and the civilian system is the enormous role of a military commander in deciding your fate. Not only does the commander often have a heavy hand in the investigation of a military service member, but he also decides whether to press charges and also PICKS THE JURY POOL. That’s right, the same person that sends you to a court martial also picks the pool of jurors that will judge you. If this seems terribly wrong, you’re not alone. But it’s not going to change, so you need to find a military court-martial lawyer that can even the playing field with hard-hitting and aggressive representation.

Fundamentals of a Court Martial

A court-martial is a military tribunal commenced by an accused’s commander. It is not a trial in the federal or state judicial system—those are entirely different. In Hawaii, for example, there are many military installations, including Marine Corps Base Hawaii, Pearl Harbor – Hickam, Schofield Barracks, Fort Shafter, Tripler Army Medical Center, and more. If a service member from any of these military installations is charged with violating the UCMJ, they would be tried at a court martial without federal or State of Hawaii interaction. However, a court-martial trial will not necessarily bar prosecution for the same offense in a different jurisdiction, like Hawaii State court. So it is possible for a military service member to go to trial twice for the same crime without the legal principle of double jeopardy being violated. Additionally, military appeals are handled by military appellate courts and the Supreme Court of the United States.

The Military Commander’s Role In the Military Justice System Cannot Be Overstated

At every step in the court martial process an accused’s commander, a person that has not been to law school and who may already presume an accused guilty, determines when to direct an investigation, what to charge a service member with, and what jurors will be a part of the jury pool. He also determines if NJP or other adverse administrative action will be taken. This gives you just a taste of what you’re up against if you or a loved one has been caught up in the military justice system and its court martial process.

Once a military investigation is completed by NCIS, CID, or OSI, the next step is the “preferral” of changes. The is simply the formal charging of the service member under the UCMJ. On some occasions, military law enforcement will not conduct the investigation and instead, the commander will order that a command investigation be completed by an Investigating Officer (IO) that the COMMANDER APPOINTS. Command investigations are generally ordered when, although a UCMJ violation is suspected, it does not rise to a level requiring NCIS, CID, or OSI involvement.

The Commander’s Influence On the Court Martial Process Stacks the Deck Against Accused Service Members

Most people are horrified when they discover the extent to which a commander controls the court martial process. Shockingly, the commander:

  • Decides if charges are sent to a court martial
  • Decides what charges will be sent to a court martial
  • Hand-picks the jurors who will be a part of the jury pool
  • Initially rules on defense requests for expert witnesses and other requests
  • Approves a guilty finding and sentence, if applicable

If you think it’s unfair that the person sending charges to a court martial is also the person picking the jury pool and ruling on defense witness requests, we agree with you. But that’s what you or your military loved one is up against. So you need an aggressive type-A personality defense attorney that has a reputation for fighting and winning difficult cases at both the trial and appellate level.

Making matters worse, the commander (also known as the Convening Authority) that is making these legal decisions isn’t a lawyer. He, therefore, relies on the advice of military prosecutors and a Staff Judge Advocate (SJA)—who are often already convinced of your guilt—to make these legal decisions. At the same time, a service member doesn’t get the free military attorney appointed until AFTER charges are brought against him. At this point, months or even years of critical investigation and preparation time have been lost because the service member had nobody looking out for his interests. That’s not the case with a civilian court martial lawyer. Civilian defense counsel can represent a service member and discuss the case directly with the command BEFORE charges are brought and, importantly, can begin the hard work of properly investigating the case long before the free lawyer even learns of your case.

What Options Does A Commander/Convening Authority Have Regarding UCMJ Allegations?

A commander can proceed in four different directions with UCMJ allegations:

  1. Take No Adverse Action: A commander generally takes no adverse action when they determine that no UCMJ misconduct occurred or that it was too minor to warrant further attention. It’s rare that no adverse action is taken because commander’s usually want to appear tough on crime to show that they are upholding good order and discipline in the unit, regardless of how weak the evidence is against you. An experienced civilian defense attorney can be particularly effective in getting a no-action decision because they can communicate with military prosecutors and commanders before the decision is made, which the free lawyer almost never can do because of military detailing rules.
  2. Adverse Administrative Action: This usually amounts to a negative written counseling or reprimand (e.g, GOMOR). While this may seem relatively minor, adverse administrative action will normally destroy any opportunity for promotion, re-enlistment, or other military career progressions. Service members can respond to negative written counselings by submitting rebuttal matters, but in our experience, active duty JAGs don’t have the time to meaningfully assist service members with the drafting of effective rebuttal matters. That’s not our firm. Noel Tipon has a proven track record for getting GOMORs and other written counselings tore up or only locally filed because of rebuttal matters we drafted.
  3. Nonjudicial Punishment (Article 15, NJP, Captain’s Mast): Known as Article 15 in the Army and Air Force, Captain’s Mast in the Navy, and NJP in the Marines, nonjudicial punishment is meant to address minor UCMJ offenses. Military service members accused of a minor UCMJ violation may be “offered” NJP, which they can refuse and demand trial by court martial, unless attached to or embarked on a vessel.

In the Navy, Marine, Corps, Air Force, and Coast Guard, the standard of proof to be found guilty at NJP is a “preponderance of the evidence,” which means more than a 50% certainty of guilt. In the Army though, the standard of proof is the same as at court martial: beyond a reasonable doubt. This is the highest standard of proof under the law, but it seems to be rarely applied properly by Army commanders.

  • Proof beyond a reasonable doubt is defined as proof to an evidentiary certainty: “The proof must be such as to exclude not every hypothesis of innocence, but every fair and rational hypothesis except that of guilt.” Despite this incredibly high standard, Army Soldiers that accept Article 15 are almost always found guilty and then punished. The same goes for Navy, Marine Corps, Air Force, and Coast Guard personnel. Commanders are often more concerned with “optics” than properly applying the standard to the facts of a case. Unfortunately, honorable service members can get tangled up in this defective reasoning and be found guilty when they’re really innocent.

After years of experience on and off active duty, Noel Tipon knows the strategies and tactics to employ when his clients are facing NJP. Because the decision to accept or refuse an NJP is more nuanced and complex than most realize, an inexperienced lawyer can do more harm than good when trying to help an NJP client, despite their best intentions.

4. Court Martial: If a commander opts to convene a court martial, he then decides whether that will be a: (1) summary court martial, (2) judge alone special court martial (AKA, “Short Martial”), (3) special court martial, or (4) general court martial. As you go up the list, the severity of the maximum punishments increases.

Summary Court Martial Details and Maximum Punishments

A summary court martial is the least formal type of court martial. It is presided over by a single officer who, in effect, acts as the military prosecutor, military defense counsel, military judge, and military jury. A summary court martial is only for enlisted military members, who must consent to being tried at a summary court martial. Military service members are almost always found guilty if they consent to a summary court martial. The maximum punishments at a summary court martial are as follows:

  • E-4 and Below. Reduction to E-1, forfeiture of 2/3 of 1 month’s pay, confinement for 1 month, hard labor without confinement for 45 days (in lieu of confinement), and restriction for 2 months.
  • E-5 and Above. Reduction of 1 grade, restriction for 2 months, and forfeiture of 2/3 of 1 month’s pay.

“Short Martial” – Judge Alone Special Court Martial Details and Maximum Punishments

In 2017, a new version of the special court martial was created, which is often referred to as a “short martial.” At a short martial a military service member’s guilt or innocence is determined only by a military judge—there is no jury. An accused does not have the option to refuse a short martial. The maximum punishment if convicted at a short martial is 6 months confinement and 6 months forfeiture of pay. No punitive discharge (i.e., dishonorable discharge or bad conduct discharge) can be awarded.

Because the military judge will be a trained lawyer, a different strategy for securing a not guilty verdict is generally needed at a short martial. This often involves a very “black-letter law” or “technical” approach in which the military judge’s legal knowledge is made the focal point of a winning defense strategy. While a short martial is viewed as a misdemeanor level trial, a guilty finding is still a federal conviction. And importantly, a conviction at a short martial does not provide a military service member with an automatic appellate review, but an experienced court martial lawyer knows that other avenues for an appeal of the conviction and the sentence are available.

Special Court Martial Details and Maximum Punishments

At a special court martial a military accused has the right to choose between being tried by a judge or a military jury. If the service member chooses a jury, there will be 4 jurors (called “members”). A conviction will require a 2/3 vote (75%). So a special court martial with members will require 3 guilty votes to convict, 2 not guilty votes to acquit.

Both a trial counsel (prosecutor) and a free active duty military defense attorney are supplied by the government and an accused has the right to hire a civilian defense attorney of his own choosing.

The maximum punishment that could be awarded at a special court martial is a bad conduct discharge, confinement for 1 year, hard labor without confinement for 3 months, 2/3 forfeiture of pay per month for 1 year, and reduction to E-1 for enlisted members. An officer at a special court martial may not be dismissed.

General Court Martial Details and Maximum Punishments

A general court martial is the most serious type of court martial. An accused may elect to be tried by either a military judge or a jury. If a jury is selected, it will generally consist of 8 jurors and 75% of those jurors must vote guilty for a conviction. That means a general court martial with 8 members requires 6 guilty votes to convict, and 3 not guilty votes to acquit.

Unlike all other courts martial, a general court martial requires that an Article 32 preliminary hearing first be held to determine whether there is probable cause to send the service member’s charges to a general court martial.

The maximum punishment that may be awarded to a military service member convicted at a general court martial is determined by the charge or charges they are convicted of. Maximum punishments include a sentence of death, life imprisonment with or without the possibility of parole, a dishonorable discharge or bad conduct-discharge, total forfeiture of all pay and allowances, and reduction to E-1. Military officers may receive a dismissal, but not a dishonorable or bad-conduct discharge.