SUMMARY COURT-MARTIAL PUNISH-MENTS.- The maximum punishment at a summary court-martial is discussed in the following paragraphs.

E-4 and Below.- The jurisdictional maximum sentence that a summary court may adjudge in the case of an accused who, at the time of trial, is in paygrade E-4 or below extends to (1) reduction to the lowest paygrade; (2) forfeiture of 2/3 of 1-month's pay, not to be apportioned over more than 3 months; (3) a fine not to exceed 2/3 of 1 month's pay; (4) confinement not to exceed 1 month; (5) hard labor without confinement not to exceed 45 days (in lieu of confinement); and (6) restriction to specified limits for 2 months. If the accused is attached to or embarked in a vessel and is in paygrade E-3 or below, he or she may be sentenced to serve 3 days' confinement on bread and water/diminished rations and 24 days' confinement in lieu of 30 days' confinement.

E-5 and Above.- The jurisdictional maximum that a summary court can impose in the case of an accused who, at the time of trial, is in paygrade E-5 or above extends to (1) reduction, but only to the next inferior paygrade; (2) restriction to specified limits for 2 months; and (3) forfeiture of 2/3 of 1 month's

pay. Unlike non-judicial punishment, where an E-4 may be reduced to E-3 and then awarded restraint punishments imposed only upon an E-3 or below, at a summary court-martial an E-5 cannot be sentenced to confinement or hard labor without confinement, even if a reduction to E-4 has also been adjudged.

ADVICE TO ACCUSED-COUNSEL.- While the MCM, 1984, creates no statutory right to provide a military defense counsel at a summary court-martial, it has created a limited right to civilian defense counsel. Therefore, the convening authority may still permit the presence of a counsel if the accused can obtain such counsel. The accused has a right to hire a civilian lawyer and have that lawyer appear at trial, if such appearance will not necessarily delay the proceedings and if military exigencies do not prevent it. The accused must, however, bear the expenses involved. If requested, the summary court officer should allow a reasonable time for the accused to retain a civilian counsel.

Even though an accused has no right to military counsel at a summary court-martial, if not given an opportunity to consult with counsel before accepting a summary court-martial, the summary court findings will be inadmissible at a later trial by court-martial. The term independent counsel means a lawyer qualified in the sense of Article 27(b), UCMJ, who in the course of regular duties does not act as the principle legal advisor to the convening authority.

To be admissible at a later trial by court-martial, evidence of a summary court-martial at which an accused was not represented by counsel must affirmatively demonstrate that . the accused was advised of his or her right to

confer with counsel prior to deciding to accept trial by summary-court martial; . the accused either exercised his or her right to

confer with counsel or made a voluntary, knowing, and intelligent waiver; and . the accused voluntarily, knowingly, and intelligently waived his or her right to refuse a summary

court-martial.

When an accused has been properly advised of the right to consult with counsel and to refuse a summary court-martial, the elections or waiver in this regard are made in writing and signed by the accused. Use a form

similar to that shown in figure 5-1 to record the advice/waiver. The "Acknowledgement of Rights and Waiver," properly completed, contains all the necessary advice to an accused. When it is properly executed it will establish a voluntary, knowing, and intelligent waiver of the accused's right to consult with counsel and/or his or her right to refuse trial by summary court-martial. A page 13 entry in the accused's service record should be made, and a copy of the form should be attached to the record of trial.

Assuming these Booker warnings have been given (proper advice and recording of election/waivers), evidence of the summary court-martial will be admissible at a later trial by court-martial.

Final Pretrial Preparation

After the pretrial interview, the summary court officer determines whether the accused has decided to accept or refuse trial by summary court-martial. If the accused needs more time to decide, it should be

Figure 5-1.-Summary Court-Martial Acknowledgement of Rights and Waiver.

Figure 5-1.-Summary Court-Martial Acknowledgement of Rights and Waiver-Continued.

provided. If the case is to proceed, the witnesses or the description of other evidence that the accused wishes to present at trial should be identified. The summary court-martial officer arranges for a time and place to hold the open session of the trial. These arrangements are made through the legal officer, and the summary court officer notifies all personnel involved of the time and place of the first meeting. The summary court-martial officer plans an orderly trial procedure to include a chronological presentation of the facts. Appendix IX, MCM, is a summary court-martial trial guide. The summary court-martial officer should follow it closely and precisely during the hearing. The admissibility and authenticity of all known evidentiary matters are determined and numbers assigned to all exhibits to be

offered at trial. The evidence reviewed by the summary court officer includes not only that contained in the original file but also any other relevant evidence discovered by other means. The summary court-martial officer has the duty to insure that all relevant and competent evidence in the case, both for and against the accused, is presented. It is the responsibility of the summary court officer to ensure that only legal and competent evidence is received and considered at the trial. The military rules of evidence apply to a summary court-martial and must be followed. Therefore, only legal and competent evidence received in the presence of the accused at trial can be considered in determining guilt or innocence. If a question regarding admissibility of evidence arises, the summary court officer may seek assistance from a Navy Legal Service Office in resolving the issue.

The summary court is authorized to issue subpoenas to compel the appearance at trial of civilian witnesses. In such a case, the summary court-martial officer follows the same procedure that a special or general court-martial trial counsel would follow.