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Military Justice

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

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Military Justice

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  1. Military Justice

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

  3. PURPOSES OFMILITARY JUSTICE • Promote Justice • Maintain Good Order and Discipline • Promote Efficiency and Effectiveness • Strengthen the National Security

  4. 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 • 1SG • Legal Clerk • SJA

  5. KEY PERSONNEL IN THEMILITARY JUSTICE SYSTEM • Commander • Staff Judge Advocate • Trial Counsel • Defense Counsel • Military Judge • Legal Specialists

  6. 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

  7. UNLAWFUL COMMANDINFLUENCE • 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

  8. IMPORTANCE OF PROPERCOMMAND CONTROL • Personal Importance • Discipline, Efficiency, and Integrity of the system • Civilian Impressions and Reputation of the system

  9. 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

  10. 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?

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

  12. NONJUDICIAL PUNISHMENTARTICLE 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

  13. ACCUSED’S RIGHTSAND OPTIONS RightsFormalSummarized Art. 31B Warning Yes Yes Demand Trial Yes Yes Consult Lawyer Yes No Open Hearing Yes No Spokesperson Yes No Have Witnesses Yes No Appeal Yes No

  14. 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

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

  16. SEARCHES NOT REQUIRINGAUTHORIZATION • 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

  17. ADMINISTRATIVEINSPECTIONS • 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 courts will scrutinize.

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

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

  20. 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

  21. 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

  22. 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 • Contact your JA

  23. COMMANDER’SPRELIMINARY 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

  24. 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?

  25. 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.

  26. INVESTIGATING OFFICERARTICLE 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

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

  28. Question & Conclusion “Injustice is the all the greater when it is armed injustice” Aristotle

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