GENERAL COURTS-MARTIAL-TRIAL PROCEEDINGS

As you have just learned, there are prerequisites to convening a general court-martial, Once an Article 32 investigation has been conducted and a case is referred to a general court-martial, the actual procedure is the same as that of a special court-martial. However, there are some differences in composition and qualification of parties.

Who May Be Tried

A general court-martial may try any person subject to the UCMJ for any offense made punishable under the code. General courts-martial may also try any person for a violation of Articles 83, 104, and 106. Upon a finding of guilty of an offense, general court-martials may, within limits prescribed in the MCM, adjudge any punishment authorized under R.C.M. 1003.

The Death Penalty

The death penalty may not be adjudged if not specifically authorized for the offense, or if the case has been referred as noncapital. A general court-martial composed only of a military judge may not try any person for a capital offense, again, unless the case has been referred as noncapital. In essence, this means the death penalty may not be ordered by a military judge alone, it must be imposed by a court composed of members.

The Military Judge

The military judge of a general court-martial is designated for such duties by the Judge Advocate General, certified for duty as a military judge of a general court-martial and is assigned and directly responsible to the Judge Advocate General.

Who May Serve

There is no special requirement for a person to act as a member in a general court-martial. But in the general court-martial there must be a minimum of five members appointed. And if the accused elects to be tried by a court composed of enlisted members, then the general court must consist of at least two enlisted members.

The Defense Counsel

The requirement for a defense counselor associate to be certified under Article 27(b), UCMJ is the same in both the special and general court-martial. However, in the special court-martial the trial counsel need only be a commissioned officer, whereas in a general court-martial the trial counsel must be a person certified by the Judge Advocate General to perform such duties.

COURTS-MARTIAL PUNISHMENTS

LEARNING OBJECTIVES: Define authorized punishments and identify the primary References for punishment authority. Explain when increased punishments are allowed, and describe maximum punishments and prohibited punishments.

Articles 19,55, and 56, UCMJ, R.C.M. 1003 and appendix 12, and Part IV, MCM, 1984 are the primary References concerning punishment authority. Part IV of the MCM contains the maximum permissible punishment for a particular offense. The other References further limit punitive authority, depending on the level of court-martial and type of punishment being considered.

AUTHORIZED PUNISHMENTS

Punishments are determined by statutory provisions or by the President of the United States under the authority delegated by Article 56, UCMJ. An accused, as a general rule, may be separately punished for each offense convicted, unlike non-judicial punishment where only one punishment is imposed for all offenses. Thus, an accused convicted of unauthorized absence (Art. 86), assault (Art. 128), and larceny (Art. 121) is subject to a maximum sentence determined by totaling the maximum punishment for each offense. Summary court-martial punishments were discussed earlier as part of the advice to the accused. Table 5-1 illustrates authorized punishments for all three types of courts-martial. Now let's consider some of the punishments listed in table 5-1.

Bad-Conduct Discharge

A special court-martial is empowered to sentence an enlisted accused to separation from the service with a bad-conduct discharge (BCD). This is true provided the discharge is authorized for one or more of the offenses for which the accused stands convicted, or by virtue of an escalator clause (discussed later). A special court-martial is not authorized to sentence any

Table 5-1.-Authorized Punishments.

officer or warrant officer to separation from the service. A BCD is a separation from the service under other than honorable conditions, and is designed as a punishment for bad conduct rather than as a punishment for serious military or civilian offenses, It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears necessary.

The practical effect of this type of separation is less severe than a dishonorable discharge, where the accused automatically becomes ineligible for almost all veteran's benefits. The effect of a BCD on veteran's benefits depends upon whether it was adjudged by a general or a special court-martial, whether the benefits are administered by the service concerned or by the Veteran's Administration, and upon the particular facts of a given case.

Confinement

Confinement involves the physical restraint of an adjudged service member in a brig, jail, or prison. Under military law confinement automatically includes hard labor, but the law prefers that the sentence be stated as confinement, omitting the words at hard labor. Omission of the words hard labor does not relieve the accused of the burden of performing hard labor. A special court-martial can adjudge 6 months' confinement upon an enlisted service member, but may not impose any confinement upon an officer or warrant officer. Part IV, MCM, limits this punishment to an even lesser period for certain offenses. As an example, failure to go to appointed place of duty (Art. 86) has a maximum confinement punishment of only 1 month.

Confinement on Bread and Water/Diminished Rations

As its name suggests, this punishment involves confinement coupled with a diet of bread and water or diminished rations. When on a diet of bread and water, the accused is allowed as much bread and water as he or she wants. Diminished rations is food from the regular daily rations, constituting a nutritionally balanced diet, but limited to 2100 calories per day. No hard labor may be required to be performed by an accused undergoing this punishment. Confinement on bread and water/diminished rations may be imposed only upon enlisted persons in paygrades E-1 to E-3 who are attached to or embarked in a vessel, and then for a maximum of only 3 days. Both the prisoner and the confinement facility must be inspected by a medical officer who must certify in writing that the punishment will not be injurious to the accused's health and that the facility is medically adequate for human habitation.

Restriction

Restriction is a moral restraint upon the accused to remain within certain specified limits for a specified time. Restriction may be imposed on all persons subject to the UCMJ, not to exceed 2 months. Restriction is a less severe form of punishment than confinement or hard labor without confinement, and may be combined with any other punishment. The performance of military duties can be required while an accused is on restriction.

Hard Labor Without Confinement

This form of punishment is performed in addition to routine duties and may not lawfully be used in lieu of regular duties. The number of hours per day and character of the hard labor will be designated by the immediate commanding officer of the accused. The maximum amount of hard labor that can be adjudged at a special court-martial is 3 months. This punishment can be imposed on enlisted personnel, but not officers or warrant officers. After each day of hard labor, the accused should then be permitted normal liberty or leave. Hard labor means rigorous work but not so rigorous as to be injurious to health. Hard labor cannot be required on Sundays, but may be performed on holidays. Hard labor can be combined with any other punishment.

Forfeiture of Pay

This kind of punishment involves withholding a specified amount of pay for a specific number of months. The maximum amount that is subject to forfeiture at a special court-martial is two-thirds of 1 month's pay per month for 6 months. The forfeiture must be stated in terms of pay per month for a certain number of months. The basis for computing the forfeiture is the base pay of the accused plus sea and foreign duty pay. Other pay and allowances cannot be considered for forfeiture. If the sentence is to include reduction in grade, the forfeiture must be based upon the grade to which the accused is to be reduced. A forfeiture may be imposed by a special court-martial upon all military personnel. The forfeiture applies to pay becoming due after the forfeitures have been imposed and not to monies already paid to the accused. Unless suspended, forfeitures take effect on the date executed by the convening authority.

Fine

A fine is a lump sum judgment against the accused requiring him or her to pay money to the United States. A fine is not taken from the accruing pay, as with forfeitures, but becomes due in one payment when the sentence is executed. To enforce collection, a fine may also include the provision that in the event the fine is not paid, the accused must be confined for a period of time. The total period of confinement may not exceed the jurisdictional limit of the specified court-martial should the accused fail to pay the fine. While a special court-martial can impose a fine upon all personnel, the punishment should not be adjudged unless the accused has been unjustly enriched by his or her crimes. A fine cannot exceed the total amount of money that the court could have required to be forfeited. The court may, however, award both a fine and forfeitures, so long as the total monetary punishment does not exceed the amount that could have been required to be forfeited.

Reduction in Grade

Reduction in grade takes away the paygrade of an accused and places him or her in a lower paygrade. Therefore, this punishment can only be used against enlisted persons in other than the lowest paygrade. Officers may not be reduced in grade. A special court-martial 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.

In accordance with the power granted in Article 58(a), UCMJ, the Secretary of the Navy has determined that automatic reduction will be effected in accordance with JAGMAN 0152d. Under the provisions of this section, a court-martial sentence of an enlisted member (in a paygrade above E-1), that includes a punitive discharge or confinement in excess of 90 days or 3 months automatically reduces the .. member to the paygrade of E-1 as of the date the sentence is approved. The convening authority or 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. Additionally, the convening authority 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 convening authority to address automatic reduction will result in the automatic reduction to paygrade E-1.

Loss of Numbers

The dropping of an officer a stated number of places on the lineal precedence list is called loss of numbers. 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

A special court-martial 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. JAGMAN 0152c contains guidance for drafting the reprimand.