Military justice is like and it is unlike civilian justice. For those of you that have never been in the military or even if you have, you may not be familiar with the courts-martial system and what it means to you or your family member. In this and subsequent articles I’ll try to help your understanding of military justice.
There are several types of courts-martial, including (1) summary court-martial, (2) special court-martial, and (3) general court-martial. Each is unique in what they do and what authority is held in each.
First of all, Courts-martials are created by individual Court-Martial Convening Orders (CMCO). They are not what you call: ‘standing courts”. Without this CMCO there is no court and there’s no authority to try or adjudicate any offense. The Rules of Courts-Martial (RCM) and the Military Rules of Evidence (MRE) apply to all of the services there are differing levels of the types and the authority for each.
First of all there is the “Summary Courts-Martial” or “SCM”. This is basically the lowest level and least formal type of court-martial but since the SCM is a streamlined procedure providing fewer protections and rights, the maximum possible punishment is very limited. Furthermore, it may try only enlisted personnel and only those who consent to be tried by SCM. It is the least protective of the individual’s rights. The function of the summary court-martial is to “promptly adjudicate minor offenses under a simple procedure” and “thoroughly and impartially inquire into both sides of the matter” ensuring that the “interests of both the Government and the accused are safeguarded and that justice is done.” The SCM is a streamlined trial process involving only one officer who theoretically performs the prosecutorial, defense counsel, judicial, and panel member (juror) functions. The summary court-martial can adjudicate minor offenses allegedly committed by enlisted service members. Don’t be confused by what might be an “administrative charge” or “non-judicial punishment”. Those are reserved for even lesser violations or infractions.
Next, there is the “Special Courts-Martial”. This process generally tries offenses that are considered misdemeanors. The formality and procedural protections are much more involved in a special court-martial as opposed to a summary court-martial. A convening authority can refer a case to two types of special courts-martial: those consisting of a military judge and four members (although the accused can later elect to trial by military judge alone); and those consisting of a military judge alone.
Lastly is the “General Courts-Martial”. This court-martial action is the highest trial level in military law and is reserved for the most serious offenses.
Word to the Wise: Even though there are options for lesser types of judgment (Article 15, SCM or otherwise), under no circumstances should you take any action or accept any offers without first contacting and heeding the guidance of your local military defense attorney.
NOTE: If there is an allegation of a sexual offense, that allegation must be reported to the appropriate Military Criminal Investigative Organization (for the Army that is the Criminal Investigation Command, or CID; for Navy/Marine, NCIS; for Air Force and Space Force, OSI). They are not handled by lesser authorities.
Future articles will address aspects of the Special and General Courts-martial systems.