REDUCTION IN GRADE.- This form of punishment has the effect of taking away the paygrade of an accused and placing him or her in a lower paygrade. Accordingly, this punishment can only be used against enlisted persons in other than the lowest paygrade. Officers may not be reduced in grade. An SPCM may reduce an enlisted service member to the lowest paygrade regardless of grade before sentencing. A reduction can be combined with all other forms of punishment.

According to the power granted in Article 58(a), UCMJ, SECNAV has determined that automatic reduction will be effected according to the JAGMAN. Under the provisions of this section, a court-martial sentence of an enlisted member in a paygrade above E-1, as approved by the CA, that includes a punitive discharge or confinement in excess of 90 days (if the sentence is awarded in days) or 3 months (if awarded in months) automatically reduces the member to the paygrade of E-1 as of the date the sentence is approved. As a matter within his or her sole discretion, the CA or the supervisory authority may retain the accused in the paygrade held at the time of sentence or at an intermediate paygrade and suspend the automatic reduction to paygrade E-1 that would otherwise be in effect. Additionally, the CA may direct that the accused serve in paygrade E-1 while in confinement, but be returned to the paygrade held at the time of sentencing or an intermediate paygrade upon release from confinement. Failure of the CA to address automatic reduction will result in the automatic reduction to paygrade E-1 taking effect on the date of the CA's action.

LOSS OF NUMBERS.- Loss of numbers is the dropping of an officer a stated number of places on the lineal precedence list. Lineal precedence is lost for all purposes except consideration for promotion. This exception prevents the accused from avoiding or delaying being passed over. Loss of numbers does not reduce an officer in grade nor does it affect pay or allowances. Loss of numbers may be adjudged in the case of commissioned officers, warrant officers, and commissioned warrant officers. This punishment may be combined with all other punishments.

PUNITIVE REPRIMAND.- An SPCM may also adjudge a punitive reprimand against anyone subject to the UCMJ. A reprimand is nothing more than a written statement criticizing the conduct of the accused. In adjudging a reprimand, the court does not specify the wording of the statement but only its nature. The JAGMAN contains guidance for drafting the reprimand.

Circumstances Permitting Increased Punishments

There are three situations in which the maximum limits of part IV, MCM, may be exceeded. These are known as the escalator clauses and are designed to permit a punitive discharge in cases involving chronic offenders. In no event, however, may the so-called escalator clauses operate to exceed the jurisdictional limits of a particular type of court-martial. With respect to an SPCM, these three clauses have the following impact.

Three or more convictions-If an accused is convicted of an offense for which part IV, MCM, does not authorize a DD, proof of three or more previous convictions by court-martial during the year preceding the commission of any offense of which the accused is convicted will allow an SPCM to adjudge a BCD, forfeiture of two-thirds pay per month for 6 months, and confinement for 6 months, even though that much punishment is not otherwise authorized. In computing the 1-year period, any unauthorized absence time is excluded.

Two or more convictions-If an accused is convicted of an offense for which part IV, MCM, does not authorize a punitive discharge, proof of two or more convictions within 3 years preceding the commission of any of the current offenses will authorize an SPCM to adjudge a BCD, forfeiture of two-thirds pay per month for 6 months, and, if the confinement authorized by the offense is less than 3 months, confinement for 3 months. For purposes of the second escalator clause, periods of unauthorized absence are excluded in computing the 3-year period.

Two or more offenses-If an accused is convicted of two or more separate offenses, none of which authorize a punitive discharge, and if the authorized confinement for these offenses totals 6 months or more, an SPCM may adjudge a BCD and forfeiture of two-thirds pay per month for 6 months.

PRETRIAL ASPECTS OF GENERAL COURTS-MARTIAL

The GCM is the highest level of court-martial in the military justice system. Such a court-martial may impose the greatest penalties provided by military law for any offense. The GCM is composed of a minimum of five members, a military judge, and lawyer counsel for the government and the accused. In some cases, the court is composed of a military judge and counsel, The GCM is created by the order of a flag or general officer in command in much the same manner as the SPCM is created by subordinate commanders. Before a trial by GCM may lawfully occur, a formal investigation of the alleged offenses must be conducted and a report forwarded to the OEGCMJ. This pretrial investigation (often referred to as an Article 32 investigation) is normally convened by an SCM CA. This section will discuss the legal requisites of the pretrial investigation.

NATURE OF THE PRETRIAL INVESTIGATION

The formal pretrial investigation (Article 32, UCMJ) is the military equivalent of the grand jury proceeding in the civilian criminal procedure. The purpose of this investigation is to inquire formally into the truth of allegations contained in a charge sheet, to secure information pertinent to the decision on how to dispose of the case, and to aid the accused in discovering the evidence against which he or she must defend himself or herself. Basically, this investigation is protection for the accused; but it is also a sword for the prosecutor who may test his or her case for its strength in such a proceeding and seeks its dismissal if too frail or if groundless.

Authority to Direct

An Article 32, UCMJ, investigation may be directed by one authorized by law to convene an SCM or some higher level of court-martial. As is true of all other forms of convening authority, the power to order the Article 32, UCMJ, investigation vests in the office of the commander.

Mechanics of Convening

When the SCM or higher CA receives charges against an accused that are serious enough to warrant trial by a GCM, the CA directs a pretrial investigation, This is done by written orders of the CA, which assign personnel to participate in the proceedings. At the time the investigation is ordered, the charge sheet will have been completed up to, but not including, the referral block on page 2. Unlike courts-martial, pretrial investigations are directed as required, and standing orders for such proceedings are inappropriate. Also unlike courts-martial, there is no separate referral of a case to a pretrial investigation since the order creating the investigation also amounts to a referral of the case to the pretrial investigation. The original appointing order is sent to the assigned investigating officer along with the charge sheet, allied papers, and blank Investigating Officer's ^{Report, DD Form 457.}

Investigating Officer

The pretrial investigation is a formal one-officer investigation into alleged criminal misconduct. The investigating officer must be a commissioned officer who should be a major/lieutenant commander or above, or an officer with legal training. The advantages of appointing a judge advocate (when available)

to act as the investigating officer are substantial, especially in view of the increasingly complex nature of the military judicial process. Neither an accuser, prospective military judge, nor prospective TC or DC for the same case may act as the investigating officer. Further, the investigating officer must be impartial and cannot previously have had a role in inquiring into the offenses involved; for example, the provost marshal or public affairs officer. Mere prior knowledge of the facts of the case will not, alone, disqualify a prospective investigating officer. If such knowledge imparts a bias to the investigating officer, then he or she obviously is not the impartial investigator required by law. The law contemplates an investigating officer who is fair, impartial, mature, and with a judicial temperament. It is the responsibility of the CA to see that such an officer is appointed to pretrial investigations. If it is necessary for a nonlawyer investigating officer to obtain advice regarding the investigation, that advice should not be sought from one who is likely to prosecute the case.