Referral of Charges and Convening a Military Court-Martial

The Armed Forces do not have permanently established trial courts for prosecuting military members. Courts-martial (military criminal trial courts) are convened (established) by commanders possessing the authority to do so, on an “as needed” basis.

Court-Martial Convening Authority. Congress, through the Uniform Code of Military Justice (UCMJ), specifies which commanders and officials possess the authority to convene a court-martial. A commander who possesses the authority to convene a court-martial is known as a Convening Authority (CA). The CA convenes a court-martial by issuing an order that charges previously preferred (initiated) against an accused service member will be tried by a specified court-martial. This order is called a “convening order” and shall designate the type of court-martial (summary, special or general) that will try the charges. The convening order may designate when and where the court-martial will meet.

Detailing the Court-Martial Panel. For special and general courts-martial, the convening order will also designate the members of the court-martial panel (the military equivalent of the jury). Although the ultimate membership of the panel is determined, as in the civilian system, through voir dire, the CA initially details the panel members to the court-martial. As required by Congress in Article 25, UCMJ, the CA must choose members who are best qualified to serve based on their age, education, training, experience, length of service, and judicial temperament. However, it is the accused’s choice whether he or she will be tried by a panel of officers, a combined panel of officers and enlisted members, or by the military judge sitting alone.

Types Of Courts-Martial. The characteristics of the different types of courts-martial are described below.

Summary Court-Martial

A summary court-martial has jurisdiction over all personnel, except commissioned officers, warrant officer, cadets, aviation cadets, and midshipmen, charged with a UCMJ offense referred to it by the convening authority.

• Composed of one commissioned officer on active duty, usually pay grade O-3 or above;
• The accused member is not entitled to be represented by a military attorney, but may hire a civilian lawyer at his own expense. [In rare cases, military exigencies may preclude the reasonable availability of civilian counsel.] As a matter of Air Force policy, all accused at summary courts-martial are afforded representation by military counsel;
• The accused member may object to trial by summary court-martial, in which case the charges are returned to the convening authority for further action (e.g., disposition other than by court-martial or action to send the charges to a special or general court-martial);
• The maximum punishment a summary court-martial may award is: confinement for 30 days, forfeiture of two-thirds pay for one month, and reduction to the lowest pay grade (E-1);
• In the case where the accused is above the fourth enlisted pay grade, a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next lowest pay grade.

Special Court-Martial

A special court-martial has jurisdiction over all personnel charged with any UCMJ offense referred to it by the convening authority.

• Composed of not less than three members, which may include commissioned officers and enlisted members (at the accused’s request);
• Usually presided over by a military judge;
• The military judge may conduct the trial alone, if requested by the accused;
• A military lawyer is detailed to represent the accused member at no expense to the accused. The member may instead request that a particular military attorney, if reasonably available, represent him or her;
• The member may also retain a civilian attorney at no expense to the government;
• The prosecutor is a military lawyer (judge advocate), unless precluded by military exigencies;
• The maximum punishment a special court-martial may adjudge is: confinement for six months, forfeiture of two-thirds pay for six months, reduction to the lowest pay grade (E-1), and a bad conduct discharge.

General Court-Martial

A general court-martial has jurisdiction over all personnel charged with any UCMJ offense referred to it by the convening authority.

• Unless the accused waives this right, no charge may be referred to a general court-martial until a thorough and impartial investigation into the basis for the charge has been made. This pretrial proceeding is known as an “Article 32” investigation or preliminary hearing and essentially serves the equivalent function of a grand jury hearing in civilian jurisdictions;
• Composed of a military judge and not less than five members, which may include commissioned officers (and enlisted members at the accused’s request);
• In non-capital cases, military judges may conduct the trial alone at the accused’s request;
• A military lawyer is detailed to represent the accused member at no expense to the accused. The member may instead request that a particular military attorney, if reasonably available, represent him or her;
• The member may also retain a civilian attorney at no expense to the government;
• The prosecutor must be a military lawyer (judge advocate);
• A general court-martial may adjudge any sentence authorized by the Manual for Courts-Martial for the offenses that the accused is found to have committed.

Independent Defense – Independent Judiciary. It is the duty of military defense counsel to zealously represent their clients’ legal interests. It is the duty of military judges to be fair and impartial in overseeing trials, applying the law, and if applicable, passing judgement and sentence upon an accused service member. Defense counsel and military judges are assigned to an independent judiciary within the military, with command and performance rating chains that are separate from those of the prosecutors and convening authorities. To further insure complete independence, prosecutors, defense counsel, and military judges maintain separate office facilities.