The court-martial process is governed by stringent rules that must be carefully followed. Processes are in place to ensure that the rights of the accused are properly protected, and so failure to adhere to these safeguards can have significant adverse consequences.
Beginning the Court-Martial Process
The court-martial process begins with a report of incident and is followed by an investigation, whether by civilian authorities or the appropriate military investigatory unit—Criminal Investigations Division (Army), Naval Criminal Investigative Service (Navy), and the Office of Special Investigations (Air Force). For the purposes of this post, I will focus on the Army.
The first level commander is normally the company commander, usually a captain. Based on the findings, the company commander can decide to impose non-judicial punishment, to take adverse administrative action, to take no further action, or to prefer charges.
Preferring charges—known as preferral—is the commander’s actual swearing out of charges and signing of the charge sheet . This occurs when the company commander believes that the offense occurred and that the offense is serious enough to be referred to a court-martial.
Special rules govern the court-martial process with respect to matters of sexual assault. Company commanders have no discretion to prefer charges on these matters; sexual assault cases must be preferred at least to the special court-martial convening authority—generally a lieutenant colonel battalion commander.
Going to Trial
Preferral starts the trial phase of the court-martial process. The charge sheet is sent to the summary court-martial convening authority. The summary court-martial convening authority then has the power to take any action the company commander could have taken—such as adverse administrative action, non-judicial punishment, or even dismissal of the case—or to convene a summary court-martial.
A summary court-martial can impose a maximum of 30 days confinement, and a “conviction” at a summary court-martial is not considered a criminal conviction for civilian purposes. It is a matter internal to the military.
If the summary court-martial convening authority believes the offenses to be too serious to be settled by summary court-martial, he or she may refer the matter to the special court-martial convening authority—generally a colonel brigade commander. (As stated early, this is non-discretionary in matters of sexual assault.) When the special court-martial convening authority receives the charges, he or she can do whatever the referring authority could have done, or he or she can refer the matter to the general court-martial convening authority to impose a special court-martial. (Contrary to what the terms may suggest, the special court-martial convening authority must go through the general court-martial convening authority to convene a special court-martial.)
A special court-martial can impose up to one-year confinement and a bad conduct discharge. This is roughly analogous to a misdemeanor court in the civilian world.
For more serious matters, however, the court-marital process continues. In such cases, the general court-martial convening authority—a general officer, most often a major general (2 star) division commander—may decide to send the matter to general court-martial. (Of course, as before, the general officer could also take any action the referring authority could have taken, including dismissing the case.) A general court-martial can impose the greatest punishment allowed by law up to and including death and the imposition of a dishonorable discharge.
The Article 32 Hearing and General Court-Martial
Before a general court-martial can be imposed, there must be an Article 32 hearing, which will determine whether the charges have merit. (Special and summary courts-martial do not require such a hearing.) An Article 32 hearing is very similar to grand jury proceedings in the civilian world.
If the Article 32 hearing finds probable cause to move to general court-martial, the court-martial process will then resume, beginning with an arraignment and moving through the trial phase. If the accused is convicted, sentencing will follow.
Unlike civilian cases, the same members that convicted the accused—not the judge—will impose the sentence. Even if the accused requested a bench trial, he or she can still request that sentencing be done by the members. Also unique to the court-martial process, sentencing occurs immediately after the conviction. The delays between verdict and sentencing so common in the civilian world are not present in the military.
After sentencing, the court-martial process moves into to the post-trial phase, which encompasses a wide-range of procedures including a final request for clemency. It is important to recognize even after all of this, the general court-martial convening authority can reduce the sentence imposed or even vacate the conviction. (Though this may soon change.) If the convening authority does not vacate the conviction, however, the case will move onto the appeals phase, which I will discuss in future post.
Garrett Ham is an attorney at Smith Hurst, PLC in Fayetteville, Arkansas and serves as a Judge Advocate in the Army National Guard. You may reach him at (479) 301-2444.