If your command does not resolve your alleged misconduct with an NJP or a formal counseling, you may be headed to a court-martial. There are three types of court-martial: summary court-martial, special court-martial, and general court-martial. Each of the three types of court-martial have different procedures and possible punishments.
A summary court-martial is little more than a formal NJP hearing. There is no prosecutor. Like NJP, to be tried by a summary court-martial, you must agree to it. The “judge” at a summary-court martial does not have to be a lawyer and typically is not. Any commissioned officer can perform a summary court-martial and the commissioned officer is usually in the grade of O-3 or above. A summary court-martial is also intended to adjudicate “minor offenses,” like those at NJP. Only enlisted service members can be tried by summary court-martial. A summary court-martial cannot hear cases involving commissioned officers, or cadets or midshipmen at service academies.
Most importantly, a discharge from the service is not possible at a summary court-martial. You cannot receive a bad-conduct discharge or a dishonorable discharge. However, a summary court-martial may sentence you to confinement for up to 1 month, hard labor without confinement for up to 45 days, restriction to specified limits for up to 2 months, and forfeiture of up to two-thirds of 1 month's pay. Enlisted service members above the pay grade of E-4 may not be sentenced to confinement, hard labor without confinement, or reduction in pay grade beyond one pay grade.
You DO NOT have the right to a military defense counsel at a summary court-martial. However, you can be represented by civilian defense counsel at a summary court-martial if such representation will not unreasonably delay the proceedings. Please contact Harris & Carmichael, PLLC, if you need to discuss representation at a summary court-martial.
A military judge presides over a special court-martial. The Government is represented by a prosecutor, or “trial counsel,” and you have the right to a military defense counsel at no expense. You also have the right to request an individual military counsel (IMC), who is a military defense counsel of your own choosing. An IMC request is typically approved if the IMC is reasonably available. You also have the right to hire a civilian defense counsel to represent you at special court-martial. If you have a trial, your case can be decided by the military judge or by a jury, or “court members.” If you choose court members, there must be at least three at a special court-martial. If you are found guilty of any offenses, the court members will decide your punishment.
If you are an enlisted service member, you may receive the following punishments at a special court-martial: a bad-conduct discharge, confinement for up to 12 months, forfeiture of two-thirds pay per month for up to 12 months, reduction in pay grade to E-1, hard labor without confinement for up to 3 months, restriction for up to 2 months, a fine, and a reprimand. Commissioned officers and warrant officers may not be reduced in rank. Additionally, officers cannot be confined by a special court-martial or dismissed from the service. For that reason, officers are not typically tried by special court-martial.
Like a special court-martial, a military judge presides over a general-court martial. The Government is represented by a trial counsel and you have the same rights to a defense counsel, IMC, and civilian defense counsel. However, the procedure in a general court-martial is different. Before proceeding to trial, you must have a preliminary hearing under Article 32 of the UCMJ. The Article 32 preliminary hearing determines whether there is sufficient evidence, or probable cause, to proceed to trial. The preliminary hearing officer must make this determination with regards to each and every charge you are facing at a general court-martial. If you go to trial, you can have your case decided by a military judge or the court members. There must be at least five court members at a general court-martial. If the court members find you guilty of any offenses, they will decide your punishment.
A general court-martial allows the most severe punishments permitted by the UCMJ. At a general court-martial, a service member can receive a sentence of death, confinement up to the maximum allowed by the offense, total forfeitures of pay, and all other punishments permitted under the UCMJ. For enlisted service members, you can be reduced to the pay grade E-1 and dishonorably discharged from the service. For officers, cadets, and midshipmen, you can be dismissed from the service, which is the officer equivalent of a dishonorable discharge. A general court-martial is typically reserved for the most serious offenses under the UCMJ.
Please contact the lawyers at Harris & Carmichael, PLLC at 703-684-7908 for prompt attention to your legal matter.