Summary Court-Martial Officer

An SCM is a one-officer court-martial. As a jurisdictional prerequisite, this officer must be a commissioned officer on active duty and of the same armed force as the accused. (The Navy and Marine Corps are part of the same armed forces-the naval service.) Where possible, the officer's grade should not be below O-3. The SCM officer should be qualified because of age, education, experience. and judicial temperament as his or her performance will have a direct impact upon the morale and discipline of the command. Where more than one commissioned officer is present within the command or unit, the CA may not serve as SCM officer. When the CA is the only commissioned officer in the unit, however, he or she may serve as SCM officer. Note this fact in the convening order and attach it to the record of trial. If such a situation exists, the better practice is to appoint an SCM officer from outside the command. The SCM officer does not have to be from the same command as the accused.

The SCM officer assumes the burden of prosecution, defense, judge, and jury. He or she must thoroughly and impartially inquire into both sides of the matter making sure the interests of both the govrnment and the accused are safeguarded and justice is done. While the SCM officer may seek advice from a judge advocate or legal officer on questions of law, he or she may not seek advice from anyone on questions of fact, since he or she has an independent duty to make these determinations.

Jurisdictional Limitations-Persons

Article 20, UCMJ, and R.C.M. 1301(c) provide that an SCM has the power (jurisdiction) to try only (how enlisted person who consent to trial by SCM. The right of an enlisted accused to refuse trial by SCM is absolute. Commissioned officers, warrant officers, cadets, aviation cadets, and midshipmen, or persons who are not subject to the UCMJ, may not be tried by SCM.

Jurisdictional Limitations-Offense

An SCM has the power to try all offenses described in the UCMJ except those for which a mandatory punishment beyond the maximum imposable at an SCM is prescribed by the UCMJ. An SCM cannot try capital offenses that involve the death penalty. Refer to R.C.M. 1004 for a discussion of capital offenses. You may dispose of any minor offense by an SCM.

PREFERRAL AND REFERRAL OF CHARGES

In this section, we will focus on the mechanism for properly preparing a particular case for trial before an SCM. Referral is the basic process by which you send a case to a particular type of court-martial.

Preliminary Inquiry

Every court-martial case begins with a complaint by someone that a person subject to the UCMJ has committed an offense that results in the discovery of misconduct. The officer exercising immediate NJP authority over the accused has the duty to make, or cause to be made, an inquiry into the truth of the complaint or apparent wrongdoing. Marine

Preferral of Charges

Charges are formally made against an accused when signed and sworn to by a person subject to the UCMJ. This procedure is known as preferral of charges. You prefer charges by executing the appropriate portions of the charge sheet. There are several steps involved in this preferral process. These steps include the following:

1. Personal data-Complete part I of page 1 of the charge sheet first. You can find the information relating to personal data in the pertinent portions of the accused's service record.

2. The charges-Next, you complete part II of page 1 of the charge sheet indicating the precise misconduct involved in the case. Each punitive article found in part IV, MCM, 1984, contains sample specifications. If the charges are so numerous that they will not all fit in part II, place them on a separate piece of paper and refer to it as attachment A. The preparation of charges and specifications were dealt with in detail in chapter 6.

3. Accuser-The accuser is a person subject to the UCMJ who signs item 11 in part III at the bottom of page 1 of the charge sheet. The accuser swears to the truth of the charges and has the affidavit executed before an officer authorized to administer oaths. This step is important, as an accused has a right to refuse trial on unsworn charges.

4. Oath-The oath must be administered to the accuser and the affidavit shows that it was executed by a person with proper authority. Article 136, UCMJ, authorizes commissioned officers who are judge advocates, staff judge advocates (SJAs), legal officers, law specialists, SCM officers, adjutants, and Marine Corps and Navy commanding officers, among others, to administer oaths for this purpose. Also authorized to administer oaths are officers certified by the Judge Advocate General of the Navy as counsel under Article 27, UCMJ, all officers in paygrade O-4 and above, executive officers, and administrative officers of Corps aircraft squadrons. Often the legal officer will administer the oath regardless of who conducted the preliminary inquiry. When the charges are signed and sworn to, they are preferred against the accused.

Informing the Accused

The next step that you take is to inform the accused of the charges against him or her. The purpose of this step is to provide an accused with reasonable notice of impending criminal prosecution. This action is in compliance with the criminal due process of law standards. The immediate commander of the accused is required to have the accused informed as soon as possible of the following elements: (1) the charges preferred against him or her; (2) the name of the person who preferred the charges; and (3) the name of the person who ordered the charges to be preferred.

The person who gives notice to the accused executes block 12 at the top of page 2 of the charge sheet. If not the immediate commander of the accused, the person signing on the signature line should state his or her rank, component, and authority. The law does not require a formal hearing to provide notice to the accused, but the charge sheet must show that notice was given.

When the accused is absent without leave at the time charges are sworn, it is permissible and proper to execute the receipt certification even though the accused cannot be advised of the existence of the charges. In such cases, attach a statement indicating the reason for the lack of notice to the case file. When the accused returns to military control, the notice should then be given.

Once formal charges have been signed and sworn to, the preferral process is complete. The preferred charges are then receipted for by the officer exercising SCM jurisdiction over the accused. This officer or his or her designee may formally receipt for the preferred charges. The purpose of this receipt certification is to stop the running of the statute of limitations for the offense charged. The receipt section, part IV of the charge sheet, is filled in now.