Overview of Military Law
All active duty military personnel are subject to the Uniform Code of Military Justice (UCMJ). The UCMJ applies to active duty military personnel 24-hours a day anywhere in the world, on ships and in the air. The UCMJ only applies to reserve military personnel when they are on duty; if they are on duty for a weekend then it should only apply while they are at the drill center between drill hours. There are three types of military procedures that are part of the military justice system: (1) Courts-martial (General Courts-martial and Special Courts-martial); (2) Non-Judicial Punishment (NJP or Article 15); (3) Administrative Separations (ADSEP).
Right to Counsel in the Military Justice System
If a service member is charged with a crime he has the right to a military defense counsel appointed to him in the same fashion that a public defender defends a civilian; however, in addition to the military counsel the service member can hire a civilian counsel. Notably, the military counsel will remain on the case to help the civilian counsel at no charge to the service member. Thus the service member can get two attorneys for the price of one. A service member is entitled to counsel at every legal military procedure except in the NJP (Article 15) hearing. However, Counsel can offer advice before and during the NJP proceeding.
What is a Court-Martial?
There are two types of courts-martial. A General Court-martial where the punishment in jail can exceed 1 year and a Special Court-martial where the punishment can NOT exceed 1 year. Most military offenses, like positive urinalysis (UCMJ Art. 112(a)) are relatively minor and are prosecuted as a Special Court-martial. The service member is entitled to a court-martial of his peers which in the case of a military person is other military persons. An enlisted person subject to court martial is entitled to have 1/3 of the members of his court-martial (jury) be enlisted persons. As opposed to a civilian jury in a criminal case which requires that the decision of the jury be unanimous for a conviction, only two-thirds of the military jury need agree for a conviction. In the military the jury decides punishment to include jail time, reduction in rank, forfeitures of pay and type of discharge. The only type of discharge permitted at a court-martial is a bad-conduct or dishonorable.
What is Non-Judicial Punishment (NJP) or Article 15?
Non-judicial punishment (NJP) and Article 15 refer to the same type of non-judicial military punishment. This occurs when a crime is charged but it is minor and so the Command of the service member gives them the option of accepting non-judicial punishment. However, the member can still REFUSE and go to a court-martial. Non-judicial punishment is not a trial or a hearing. It is where the service member admits wrongdoing and accepts punishment. The service member can usually only make a statement. There are two levels of Non-judicial and Article 15 Punishment: (1) This level of NJP permits the Commanding Officer (Usually an O-5 or greater) to take half of a member's pay for 2 months, reduce to the lowest rank and incarcerate the person for no more then 30 days OR restrict the member's movement for 60 days. (2) The lower level of punishment is usually administered by an O-3 or below. This level of NJP permits forfeit 7 days of pay; 7 days of correctional custody; reduce 1 rank.
What is an Administrative Separation (ADSEP) in the Military?
Administrative Separations refer to non-judicial hearings where the Command of the service member alleges misconduct and moves to separate the individual under the separations manual. Bases of Separation: A service member can be separated administratively for Commission of a serious offense, a pattern of misconduct (two or more incidents of misconduct), a positive urinalysis and other reasons. The service member is usually given the opportunity to fight separation in front of an administrative separations board. This board usually consist of three individuals, typically a Major (0-4), a Captain (0-3) and an E-6 or E-5. The board decides first whether the conduct deserves separation and if so what discharge to recommend to the Command. The options are an honorable discharge, a General under honorable conditions or an other then honorable (OTH) discharge. No incarceration can be adjudged at this hearing.