Court-Martial--The Creation of a Military Court: Overview
Quite often, the term court-martial is shrouded with mystery, heightened by stories from history and the distortions of movies and other mass media. The word is used as a verb, and conjures images of cold justice administered by an unfeeling commander at the drum head, followed by lashes or a firin
Creation of a Court-Martial--Disposition of ChargesThe Commanding Officer, when an offense related to a member of their command is uncovered, will normally gather facts either be appointing an investigation, or having the offense investigated by a professional law enforcement agency like CID, NCIS, or OSI. Upon receiving the facts, the Commanding Officer can take the following actions:1. Take no action; to handle the allegations by administrative instead of disciplinary means; 2. Punish the offense at Non-Judicial Punishment; 3. Appoint an Article 32 pretrial investigation as a prelude to a possible "general court-martial;" or 4. Refer the case to a summary or special court-martial.
Creation of a Court-Martial: Preferral of Charges:Upon discovery of a suspected crime and completion of an investigation, the convening authority can directed the "preferral" of charges. Preferral of charges is a formal act comparable to a civilian indictment. This preferral is a significant legal moment, because it is the first time that a defendant, called the "accused" in the military, has the right to military counsel unless he or she has been placed in pretrial confinement. This formal act of preferral starts the process going forward.
Creation of a Court-Martial: Convening a Court-MartialA commanding officer, called the convening authority in the military system, creates a court by signing a "convening order." This order appoints a panel of officers who sit as potential members (the military equivalent of jurors) of the court. This court exists without taking action until a specific case is referred to it.
Creation of a Court-Martial: Referral of ChargesThe act of "referral" of the charges creates the court, and in the case of special or general courts-martial, leads to the appointment of an independent military judge who will preside over the case. Once the case is referred, it is under the control of the military judge unless the convening authority withdraws and dismisses the charges. The convening authority also retains the ability, through his trial counsel, to negotiate a "pretrial agreement" or plea bargain to dispose of the case. This ability to plea bargain continues all the way up until the case ends