Application of military discipline: how the UCMJ works
By Dr. Jarrod Sadulski
faculty member, criminal justice
Military discipline is a topic that doesn’t get much attention until a military member gets in trouble and is investigated. However, all service members, especially if they are new to the military, should understand how the military discipline system works, as it is very different from the traditional criminal justice system.
Understanding the Uniform Code of Military Justice
The Uniform Code of Military Justice (UCMJ) is a comprehensive set of laws and regulations that apply to active duty military personnel. The UCMJ has a long list of crimes – including homicide, sexual assault, theft, and other common offenses – that are similar to typical civil crimes.
However, the UCMJ also has many laws and rules (called articles) under which military personnel can be disciplined. Examples of these military items include:
- Section 92 – involves disobeying an order or regulation
- Article 134 – refers to the punishable offenses which correspond to “all disorders and negligence prejudicial to good order and discipline in the armed forces, all conduct likely to bring discredit on the armed forces”.
Article 134 covers a wide range of offenses and gives commanders wide latitude to determine behavior that constitutes a violation of the UCMJ. Here are some common examples of Section 134 violations:
- Not paying a debt
- Cheating on tests
- Using social media for posts that discredit the military, confuse other people, or post content unbecoming of a military member to post
- Being drunk and messy
- Insulting officers, in the presence or without the presence of this officer
The different types of courts martial
The UCMJ came into effect in 1951 and has served as the guiding framework for the Manual of Courts Martial ever since. Courts-martial are used for the most serious violations of the UCMJ, and military personnel who are disciplined by court-martial could spend time incarcerated in a military prison.
According to military. com, there are three types of courts martial: Summary Court Martial, Special Court Martial and General Court Martial. A summary court martial involves a commissioned officer who acts as judge and jury for less serious offenses committed by enlisted personnel.
A special court-martial involves three military personnel; two of these soldiers act as a jury and another as a judge. This court martial is commonly referred to as a correctional court.
A General Court Martial involves five military personnel who act as a jury and an additional person who acts as a judge. General Courts Martial are used in cases involving serious offences.
Defendants in all three types of courts martial may be accompanied by counsel. However, defendants in summary courts martial do not have the right to free military counsel as they do in other types of courts martial.
The legal representation of soldiers accused of violations of the UCMJ is crucial; an effective lawyer can prove useful at a court martial. If a military member hires a civilian attorney, that attorney should have a thorough understanding of military procedures, UCMJ, and the differences between courts martial and civilian criminal courts.
Not all violations of the UCMJ are sanctioned by courts martial. Commonly used for less serious offences, non-judicial sanctions (NJP) can be imposed by commanders.
Commanders are generally responsible for serving as judge and jury in NJP hearings. NJP hearings can be held in front of the unit, whose members act as observers.
If accused service members must attend an NJP hearing, they must ensure that all of the circumstances in which the violation occurred are presented at the hearing. If permitted, accused service members may testify to their character and record of good conduct to mitigate any disciplinary action.
The NJP may be issued for general violations of articles such as habitually reporting late for work, cheating, destroying government property, and other violations that fall short of the level of discipline pronounced at courts martial. Common discipline across the NJP includes base confinement, additional duties, reduction in rank, and forfeiture of base pay.
Understand your rights if you are accused of a violation of the UCMJ
Once an allegation of UCMJ violation is made against a service member, an investigation is initiated. Investigators will obtain witness statements, collect all video footage associated with the alleged violation, and take a statement from the accused service member.
Accused service members must know their rights. Similar to the Fifth Amendment of the U.S. Constitution, Section 31 of the UCMJ provides protection to accused service members against self-incrimination and requires investigators to notify the service member of alleged charges. Like civilian defendants, military personnel also have the right to remain silent about the allegations against them.
Reservists and violations of the UCMJ
There is often some confusion as to whether a reservist can be charged under the UCMJ. But in the case of 2014 of United States vs. Morita, it was determined that there “is no UCMJ jurisdiction over a reservist who commits an offense while not on military status.” In other words, reservists are expected to conform to military standards when not in drill status, and failure to do so (such as arrest for a crime) can still result in administrative disciplinary action. , such as referral.
Military service requires knowledge of rules and regulations
While on active duty, service members must understand the military rules and regulations that govern their behavior. In addition, service members accused of a UCMJ violation must understand their rights and the evidence against them.
Gaining an understanding of UCMJ and military behavioral expectations can be helpful in avoiding many problems, especially for junior military personnel. However, supervisors and mentors can also help junior military members more easily understand what behavior could get them in trouble, which could negatively impact their military career.