Uniform Code of Military Justice

The Uniform Code of Military Justice (UCMJ, 64 Stat. 109, 10 U.S.C. §§ 801–946), is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power....To make Rules for the Government and Regulation of the land and naval forces."

History

Further information: Articles of War
Further information: Rocks and Shoals

On June 30, 1775, the Second Continental Congress established 69 Articles of War to govern the conduct of the Continental Army.

Effective upon its ratification in 1788, Article I, Section 8 of the United States Constitution provided that Congress has the power to regulate the land and naval forces.[1] On April 10, 1806, the United States Congress enacted 101 Articles of War, which were not significantly revised until over a century later. Discipline in the sea services was provided under the Articles for the Government of the Navy (commonly referred to as Rocks and Shoals). While the Articles of War evolved during the first half of the twentieth century, being amended in 1916, 1920, and culminating with the substantial reforms in the 1948 version pursuant to the Selective Service Act of 1948 (a/k/a the Elston Act) (Pub.L. 80-759, 62 Stat. 604), its naval counterpart remained little changed by comparison. The military justice system continued to operate under the Articles of War and Articles for the Government of the Navy until May 31, 1951, when the Uniform Code of Military Justice went into effect.

The UCMJ was passed by Congress on May 5, 1950, and signed into law by President Harry S. Truman the next day. It took effect on May 31, 1951. The word uniform in the Code's title refers to its consistent application to all the armed services in place of the earlier Articles of War, Articles of Government, and Disciplinary Laws of the individual services.[2]

The UCMJ, the Rules of Court Martial (the military analogue to the Federal Rules of Criminal Procedure), and the Military Rules of Evidence (the analogue to the Federal Rules of Evidence) have evolved since their implementation, often paralleling the development of the federal civilian criminal justice system. In some ways, the UCMJ has been ahead of changes in the civilian criminal justice system. For example, a rights-warning statement similar to the Miranda warnings (and required in more contexts than in the civilian world where it is applicable only to custodial interrogation) was required by Art. 31 (10 U.S.C. § 831) a decade and a half before the Supreme Court ruled in Miranda v. Arizona; Article 38(b) (10 U.S.C. § 838(b)), continued the 1948 Articles of War's guarantee that qualified defense counsel be provided to all accused without regard to indigence (and at earlier stages than required in civilian jurisdictions), whereas the Supreme Court only guaranteed the provision of counsel to indigents in Gideon v. Wainwright. Additionally, the role of what was originally a court-martial's non-voting "law member" developed into the present office of military judge whose capacity is little different from that of an Article III judge in a U.S. district court. At the same time, the 'court-martial' itself (the panel of officers hearing the case and weighing the evidence) has converted from being essentially a board of inquiry/review presiding over the trial, into a jury of military service-members. The current version of the UCMJ is printed in latest edition of the Manual for Courts-Martial (2012), incorporating changes made by the President (executive orders) and National Defense Authorization Acts of 2006 and 2007.

Jurisdiction

Courts-martial

Courts-martial are conducted under the UCMJ and the Manual for Courts-Martial United States. If the trial results in a conviction, the case is reviewed by the convening authority – the commanding officer who referred the case for trial by court-martial. The convening authority has discretion to mitigate the findings and sentence, set aside convictions, and/or to remand convictions and/or sentences back to a court-martial for re-hearing.

If the sentence, as approved by the convening authority, includes death, a bad conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement for one year or more, the case is reviewed by an intermediate court. There are four such courts – the Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Air Force Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals.

After review by any of these intermediate courts, the next level of appeal is the United States Court of Appeals for the Armed Forces (CAAF). The Supreme Court of the United States has discretion under 28 U.S.C. § 1259 to review cases under the UCMJ on direct appeal where the CAAF has conducted a mandatory review (death penalty and certified cases), granted discretionary review of a petition, or otherwise granted relief.[3] If the CAAF denies a petition for review or a writ appeal, consideration by the Supreme Court may be obtained only through collateral review (e.g., a writ of habeas corpus).[4] Since 2007, several bills have been introduced into Congress to expand the accessibility of service members to the Supreme Court. See also Equal Justice for United States Military Personnel legislation.

Personal jurisdiction

The UCMJ allows for personal jurisdiction over all members of the uniformed services of the United States: the Air Force, Army, Coast Guard, Marine Corps, Navy, NOAA Commissioned Officer Corps, and Public Health Service Commissioned Corps. The Coast Guard is administered under Title 14 of the United States Code when not operating as part of the U.S. Navy. However, commissioned members of the NOAA and PHS are only subject to the UCMJ when attached or detailed to a military unit or are militarized by presidential executive order.

Members of the military Reserve Components under Title 10 of the United States Code (Army Reserve, Navy Reserve, Marine Forces Reserve, and Air Force Reserve) or Title 14 of the United States Code, Coast Guard Reserve when not operating as part of the U.S. Navy, are subject to the UCMJ if they are either (a) active duty Full-Time Support personnel such as FTS or Active Guard and Reserve (AGR), or (b) traditional part-time reservists performing either (i) full-time active duty for a specific period (i.e., Annual Training, Active Duty for Training, Active Duty for Operational Support, Active Duty Special Work, One Year Recall, Three Year Recall, Canvasser Recruiter, Mobilization, etc.), or (ii) performing Inactive Duty (i.e. Inactive Duty Training, Inactive Duty Travel and Training, Unit Training Assembly, Additional Training Periods, Additional Flying Training Periods, Reserve Management Periods, etc., all of which are colloquially known as "drills").

Soldiers and airmen in the National Guard of the United States are subject to the UCMJ only if activated in a Federal capacity under Title 10 by an executive order issued by the President or during their Annual Training periods, which are orders issued under Title 10. Otherwise, members of the National Guard of the United States are exempt from the UCMJ. However, under Title 32 orders, National and State Guard [5] soldiers are still subject to their respective state codes of Military Justice.

Cadets and midshipmen at the United States Military Academy, United States Naval Academy, United States Air Force Academy, United States Merchant Marine Academy and United States Coast Guard Academy are subject to the UCMJ.[6] Also, Reserve Officers' Training Corps (ROTC) cadets and midshipmen as members of reserve components are subject to the UCMJ while on inactive-duty training.[7]

Members of military auxiliaries such as the Civil Air Patrol and the Coast Guard Auxiliary are not subject to the UCMJ, even when participating in missions assigned by the military or other branches of government. However, members of the Coast Guard Auxiliary can be called by the Commandant of the Coast Guard into the Temporary Reserve, in which case they become subject to the UCMJ.

Retired members of a regular component who are entitled to retirement pay are also subject to the UCMJ, Article 2(a)(4), as are retired reservists who are receiving hospital care from an Armed Force, UCMJ, Article 2(a)(5)], prisoners of war in the custody of the U.S. Armed Forces, detained medical personnel and military chaplains in the custody of the U.S. Armed Forces, and persons in custody of the U.S. Armed Forces serving a sentence imposed by a court-martial.

Non-judicial punishment

Under Article 15 of the Code (Subchapter III), military commanders have the authority to exercise non-judicial punishment (NJP) over their subordinates for minor breaches of discipline. These punishments are carried out after a hearing before the commander, but without a judge or jury. Punishments are limited to reduction in rank, loss of pay, restrictions of privileges, extra-duty, reprimands, and, aboard ships, confinement. Guidelines for the imposition of NJP are contained in Part V of the Manual for Courts-Martial United States and the various service regulations.

Complaints of wrongs and loss of property

Article 138 of the UCMJ provides that any service member may bring a complaint of wrongs against their commanding officer to the officer exercising general court-martial authority over the commander. That officer will investigate the complaint of wrongs and then report the findings of the investigation to the service Secretary (e.g., Secretary of the Army, Navy, Air Force) concerned.

Article 139 (10 U.S.C. § 939) provides for the convening of an investigation board of from one to three commissioned officers to investigate and adjudicate claims of willful damage, destruction, or theft of personal property, only if both parties are subject to the Code.

Current subchapters

The UCMJ is found in Title 10, Subtitle A, Part II, Chapter 47 of the United States Code.

Subchapter Title Section Articles
I General Provisions § 801 1–6
II Apprehension and Restraint § 807 7–14
III Non-Judicial Punishment § 815 15
IV Court-Martial Jurisdiction § 816 16–21
V Composition of Courts-Martial § 822 22–29
VI Pre-Trial Procedure § 830 30–35
VII Trial Procedure § 836 36–54
VIII Sentences § 855 55–58
IX Post-Trial Procedure and Review of Courts-Martial § 859 59–76
X Punitive Articles § 877 77–134
XI Miscellaneous Provisions § 935 135–140
XII Court of Appeals for the Armed Forces § 941 141–146

General provisions

Subchapter I, "General Provisions" has six sections (articles):

Section Article Title
§ 801 1 Definitions
§ 802 2 Persons subject to this chapter
§ 803 3 Jurisdiction to try certain personnel
§ 804 4 Dismissed officer's right to trial by court-martial
§ 805 5 Territorial applicability of this chapter
§ 806 6 Judge advocates and legal officers
§ 806a 6a Investigation and disposition of matters pertaining to the fitness of military judges

Article 1 (Definitions), defines the following terms used in the rest of the UCMJ: Judge Advocate General, the Navy, officer in charge, superior commissioned officer, cadet, midshipman, military, accuser, military judge, law specialist, legal officer, judge advocate, record, classified information, and national security. This article also provides that "The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force" for the purposes of the UCMJ.[8]

Pre-trial procedure

Section Article Title
§ 830 30 Charges and specifications
§ 831 31 Compulsory self-incrimination prohibited
§ 832 32 Investigation
§ 833 33 Forwarding of charges
§ 834 34 Advice of staff judge advocate and reference for trial
§ 835 35 Service of charges

Under Article 31, coercive self-incrimination is prohibited as a right under the Fifth Amendment. Arresting officers utilize the Article 31 warning and waiver as a means to prevent this self-incrimination, much like the Miranda warning. Article 31 was already well-established before Miranda.

Article 32 refers to the pre-trial investigation and hearing conducted before charges are referred to trial for court-martial. It may be conducted by a Judge Advocate General (JAG) officer or non-JAG officer.

Punitive articles

Subchapter X, "Punitive Articles," is the subchapter that details offenses under the uniform code:

Section Article Title
§ 877 77 Principals
§ 878 78 Accessory after the fact
§ 879 79 Conviction of lesser included offense
§ 880 80 Attempts
§ 881 81 Conspiracy
§ 882 82 Solicitation
§ 883 83 Fraudulent enlistment, appointment, or separation
§ 884 84 Unlawful enlistment, appointment, or separation
§ 885 85 Desertion
§ 886 86 Absence without leave
§ 887 87 Missing movement
§ 888 88 Contempt toward officials
§ 889 89 Disrespect toward superior commissioned officer
§ 890 90 Assaulting or willfully disobeying superior commissioned officer
§ 891 91 Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer
§ 892 92 Failure to obey order or regulation
§ 893 93 Cruelty and maltreatment
§ 894 94 Mutiny or sedition
§ 895 95 Resistance, flight, breach of arrest, and escape
§ 896 96 Releasing prisoner without proper authority
§ 897 97 Unlawful detention
§ 898 98 Noncompliance with procedural rules
§ 899 99 Misbehavior before the enemy
§ 900 100 Subordinate compelling surrender
§ 901 101 Improper use of countersign
§ 902 102 Forcing a safeguard
§ 903 103 Captured or abandoned property
§ 904 104 Aiding the enemy
§ 905 105 Misconduct as prisoner
§ 906 106 Spies
§ 906a 106a Espionage
§ 907 107 False official statements
§ 908 108 Military property of United States – Loss, damage, destruction, or wrongful disposition
§ 909 109 Property other than military property of United States – waste, spoilage, or destruction
§ 910 110 Improper hazarding of vessel
§ 911 111 Drunken or reckless operation of a vehicle, aircraft, or vessel
§ 912 112 Drunk on duty
§ 912a 112a Wrongful use, possession, etc., of controlled substances
§ 913 113 Misbehavior of sentinel
§ 914 114 Dueling
§ 915 115 Malingering
§ 916 116 Riot or breach of peace
§ 917 117 Provoking speeches or gestures
§ 918 118 Murder
§ 919 119 Manslaughter
§ 919a 119a Death or injury of an unborn child
§ 920 120 Rape and carnal knowledge
§ 920a 120a Stalking
§ 921 121 Larceny and wrongful appropriation
§ 922 122 Robbery
§ 923 123 Forgery
§ 923a 123a Making, drawing, or uttering check, draft, or order without sufficient funds
§ 924 124 Maiming
§ 925 125 Forcible sodomy; bestiality
§ 926 126 Arson
§ 927 127 Extortion
§ 928 128 Assault
§ 929 129 Burglary
§ 930 130 Housebreaking
§ 931 131 Perjury
§ 932 132 Frauds against the United States
§ 933 133 Conduct unbecoming an officer and a gentleman
§ 934 134 General article

General article (Article 134)

The general article (Article 134) authorizes the prosecution of offenses not specifically detailed by any other article: all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty. Clause 1 of the article involves disorders and neglect "to the prejudice of good order and discipline in the armed forces." Clause 2 involves "conduct of a nature to bring discredit upon the armed forces." Clause 3 deals with non-capital offenses violating other federal law; under this clause, any such offense created by federal statute may be prosecuted under Article 134. United States v. Perkins, 47 C.M.R. 259 (Air Force Ct. of Military Review 1973).[9]

The most recent version of the Manual for Courts-Martial lists the following offenses commonly prosecuted under Article 134: Abusing public animal; adultery; assault with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking; bigamy; bribery or graft; burning with intent to defraud; check, worthless, making and uttering; by dishonorably failing to maintain funds; child endangerment; cohabitation, wrongful; correctional custody – offenses against; debt, dishonorably failing to pay; disloyal statements; disorderly conduct, drunkenness; drinking liquor with prisoner; drunk prisoner; drunkenness – incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug; false or unauthorized pass offenses; false pretenses, obtaining services under; false swearing; firearm, discharging – through negligence; firearm, discharging – willfully, under such circumstances as to endanger human life; fleeing scene of accident; fraternization; gambling with subordinate; homicide, negligent; impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official; indecent language; jumping from vessel into the water; kidnapping; mail: taking, opening, secreting, destroying, or stealing; mails: depositing or causing to be deposited obscene matters in; misprision of serious offense; obstructing justice; wrongful interference with an adverse administrative proceeding; pandering and prostitution; parole, violation of; perjury: subornation of; public record: altering, concealing, removing, mutilating, obliterating, or destroying; quarantine: medical, breaking; reckless endangerment; restriction, breaking; seizure: destruction, removal, or disposal of property to prevent; self-injury without intent to avoid service; sentinel or lookout: offenses against or by; soliciting another to commit an offense; stolen property: knowingly receiving, buying, concealing; straggling; testify: wrongful refusal; threat or hoax designed or intended to cause panic or public fear; threat, communicating; unlawful entry; weapon: concealed, carrying; wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.[10]

See also

Notes

  1. ↑ U.S. Const., Art. I, Sec. 8
  2. ↑ "Truman Signs Code of Service Justice". New York Times. May 7, 1950. Retrieved March 31, 2014.
  3. ↑ Supreme Court Appellate Jurisdiction Over Military Court Cases by Anna C. Henning, Congressional Research Service, October 6, 2008
  4. ↑ Appellate Review, CAAF website (retrieved on October 13, 2008)
  5. ↑ http://iga.in.gov/legislative/laws/2014/ic/titles/010/articles/016/chapters/006/#section-2
  6. ↑ ucmj.us
  7. ↑ 802. Article 2. Persons Subject to This Chapter, subdivisions (a)(2) and (3)
  8. ↑ 10 U.S.C. § 801 Art. 1: Definitions.
  9. ↑ James R. Silkenat and Mark R. Shulman. The Imperial Presidency and the Consequences of 9/11: Lawyers React to the Global War on Terrorism (2007). Greenwood Publishing Group: p. 193.
  10. ↑ Manual for Courts-Martial (2008 ed.). IV-111 to IV-145.

Further reading

Military Law Review. ISSN 0026-4040. OCLC 423510314.

External links

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