Types of Military Court-Martial

There are three types of courts-martial: summary, special, and general.

Summary Court-Martial. Trial by summary court-martial provides a simplified procedure for the resolution of charges involving minor incidents of misconduct. The summary court-martial consists of one officer who, depending upon Service policies and practice, is a judge advocate (a military attorney). The maximum punishment a summary court-martial may impose is considerably less than a special or general court-martial. The accused must consent to be tried by a summary court-martial.

Special Court-Martial. A special court-martial is the intermediate court-martial level, and there are two types. The first consists of a military judge, trial counsel (prosecutor), defense counsel, and, should the accused elect, a four-member panel, i.e., jury. In this type of special court-martial, an accused may elect to be tried by the military judge alone, i.e., without a panel. In the second type of special court-martial, the convening authority may order that only a military judge determine an accused’s guilt or innocence and possible sentence. Regardless of the offenses involved, a sentence by a special court-martial where the accused has the option of having a panel is limited to no more than twelve months confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of pay, a bad-conduct discharge and reduction in rank (for enlisted personnel), and certain lesser punishments. A sentence by a special court-martial with a military judge alone, i.e., with no panel authorized, is no more than six months confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of pay for six months, and reduction in rank for an enlisted accused. An officer accused in a special court-martial cannot be dismissed from the service, be confined, or reduced in rank.

General Court-Martial. A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel, and six to eight court members. Unless the case is one in which a death sentence could be adjudged, an officer or enlisted accused may also request trial by judge alone. In a general court-martial, the maximum and minimum punishment is that established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement, a dishonorable or bad-conduct discharge and reduction in rank for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment. A preliminary hearing under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial, unless waived by the accused.

Joint Jurisdiction. Courts-martial have exclusive jurisdiction over purely military offenses. In the case of an offense that violates the Uniform Code of Military Justice and the criminal law of a State, other Federal law, or all three, it must be determined which jurisdiction will prosecute. This decision is normally made through coordination between appropriate military authorities (ordinarily the chief military lawyer at an installation (Staff Judge Advocate)) and appropriate civilian authorities (United States Attorney or District Attorney’s Office).

The fact that an accused is subject to trial by court-martial does not eliminate the possibility of trial by another jurisdiction. Under the United States Constitution, a person may not be tried for the same misconduct by both a court-martial and another federal court as such an act would violate the Constitution’s double jeopardy clause.

However, criminal prosecution in both federal and state courts is permissible under the Constitution. More specifically, the Constitution’s double jeopardy clause is not applicable, in this scenario, because two different sovereigns are involved, i.e. the federal government and state government. As a matter of policy, however, a person who is pending trial or has been tried by a State court is ordinarily not tried by court-martial for the same act.

Commission of an offense overseas may result in trial by the host nation. Under international law, a foreign nation has jurisdiction to punish offenses committed within its borders by members of a visiting force, unless it expressly or by implication consents to relinquish its jurisdiction to the visiting sovereign. Generally, the United States has Status of Forces Agreements (SOFAs) with host nations that dictate which sovereign will have primary jurisdiction over particular offenses. To the extent possible, efforts are made under such agreements to maximize the exercise of court-martial jurisdiction over military members or other persons subject to the Uniform Code of Military Justice.