| Thomas J. Fiscus, 14th Judge Advocate General United States Air Force |
| Military Justice Basics |
The Uniform Code of Military Justice (UCMJ) was created after World War II to provide a standardized code
of military conduct that would be applicable to all service members wherever they serve. So, the same
processes of the Code would apply to a sailor committing a military offense in Japan as a soldier
committing a similar offense in Texas.
In civilian justice systems the decisions about which cases to prosecute are made by locally elected or
appointed district attorneys. In the military justice system, Commanders choose which cases to pursue.
The civilian system has only the Courts to rely on to determine guilt or innocence and the punishment for
the offense. The system has a very high standard of proof (beyond a reasonable doubt) to convict and
fairly rigid rules of evidence.
Under the UCMJ, the Commander has many more options than simply taking a case to trial, called a
court-martial. Court-martial is normally reserved for the serious crimes such as murder, arson, rape,
espionage, desertion, etc. If the Commander chooses a court-martial, the same "beyond a reasonable
doubt" standard of proof and rigid rules of evidence apply, just as in the civilian system. Where the
systems differ a great deal is in the choice not to take a case to trial. When a civilian prosecutor decides
not to take a case to court, that's usually the end of the matter. In the military however, the Commander
may also choose to do nothing. But, the Commander can also opt for what are called "administrative"
punishments, such as oral or written reprimands. These options have very few procedural requirements
and are considered rehabilitative - designed to help the soldier improve his or her conduct.
The UCMJ gives the Commander a third option called non-judicial punishment, which is created under
Article 15 of the Code. It is designed to handle minor offenses, usually violations of military regulations,
which do not warrant the effort of a court-martial. There are fewer procedural rights and requirements and
the standard of proof is much less - the Commander need only believe that more probably than not, an
offense was committed. The rules related to the evidence that can be used are very relaxed. The
Commander can rely on anything he or she thinks is related to the case. In the non-judicial option, the
Commander is limited in the amount of punishment that can be imposed if he or she determines an offense
has been committed. For example, the Commander cannot impose a term of imprisonment under this
process.
The UCMJ has two Articles that are entirely different from anything in civilian life. Article 134 covers
offenses that are not set out as specific violations of any other specific Article. The intent is that a
Commander have the ability to punish behavior which is believed to be "prejudicial to good order and
discipline" or which violates a "custom of the service." Over the last half century, numerous kinds of
conduct have been punished under this Article, normally under the rubric of being prejudicial to good
order and discipline.
Article 133 is applicable only to officers and is intended to deal with conduct that is "unbecoming an
officer." Again, a certain body of law has coalesced around what can legitimately be punished under the
Article but anything considered by the Commander to be "unbecoming conduct" is subject to punishment.
Obviously, there is a considerable amount of discretion vested in the Commander in deciding what is
"prejudicial to good order and discipline", "custom of the service" and conduct that is "unbecoming an
officer." In 30 years as a Judge Advocate, I saw this discretion exercised in many ways. In most instances,
I felt Commanders tried to be fair, but not always. They are human beings, after all.
Part of the Article 15 process is the notification of what offense(s) one is suspected of committing. That is
accomplished by providing the accused person what are called Charges and Specifications. It is designed
to tell the soldier what Article of the UCMJ he is suspected of violating (the Charge) and what specific
conduct of the soldier (Specification) violated that Article.
In both a court-martial and non-judicial punishment situation, the accused person is entitled to the
assistance of a military lawyer.
This is a very basic review of a complicated system of criminal law. Readers who wish to know more can
click on the link to learn more about the UCMJ.
of military conduct that would be applicable to all service members wherever they serve. So, the same
processes of the Code would apply to a sailor committing a military offense in Japan as a soldier
committing a similar offense in Texas.
In civilian justice systems the decisions about which cases to prosecute are made by locally elected or
appointed district attorneys. In the military justice system, Commanders choose which cases to pursue.
The civilian system has only the Courts to rely on to determine guilt or innocence and the punishment for
the offense. The system has a very high standard of proof (beyond a reasonable doubt) to convict and
fairly rigid rules of evidence.
Under the UCMJ, the Commander has many more options than simply taking a case to trial, called a
court-martial. Court-martial is normally reserved for the serious crimes such as murder, arson, rape,
espionage, desertion, etc. If the Commander chooses a court-martial, the same "beyond a reasonable
doubt" standard of proof and rigid rules of evidence apply, just as in the civilian system. Where the
systems differ a great deal is in the choice not to take a case to trial. When a civilian prosecutor decides
not to take a case to court, that's usually the end of the matter. In the military however, the Commander
may also choose to do nothing. But, the Commander can also opt for what are called "administrative"
punishments, such as oral or written reprimands. These options have very few procedural requirements
and are considered rehabilitative - designed to help the soldier improve his or her conduct.
The UCMJ gives the Commander a third option called non-judicial punishment, which is created under
Article 15 of the Code. It is designed to handle minor offenses, usually violations of military regulations,
which do not warrant the effort of a court-martial. There are fewer procedural rights and requirements and
the standard of proof is much less - the Commander need only believe that more probably than not, an
offense was committed. The rules related to the evidence that can be used are very relaxed. The
Commander can rely on anything he or she thinks is related to the case. In the non-judicial option, the
Commander is limited in the amount of punishment that can be imposed if he or she determines an offense
has been committed. For example, the Commander cannot impose a term of imprisonment under this
process.
The UCMJ has two Articles that are entirely different from anything in civilian life. Article 134 covers
offenses that are not set out as specific violations of any other specific Article. The intent is that a
Commander have the ability to punish behavior which is believed to be "prejudicial to good order and
discipline" or which violates a "custom of the service." Over the last half century, numerous kinds of
conduct have been punished under this Article, normally under the rubric of being prejudicial to good
order and discipline.
Article 133 is applicable only to officers and is intended to deal with conduct that is "unbecoming an
officer." Again, a certain body of law has coalesced around what can legitimately be punished under the
Article but anything considered by the Commander to be "unbecoming conduct" is subject to punishment.
Obviously, there is a considerable amount of discretion vested in the Commander in deciding what is
"prejudicial to good order and discipline", "custom of the service" and conduct that is "unbecoming an
officer." In 30 years as a Judge Advocate, I saw this discretion exercised in many ways. In most instances,
I felt Commanders tried to be fair, but not always. They are human beings, after all.
Part of the Article 15 process is the notification of what offense(s) one is suspected of committing. That is
accomplished by providing the accused person what are called Charges and Specifications. It is designed
to tell the soldier what Article of the UCMJ he is suspected of violating (the Charge) and what specific
conduct of the soldier (Specification) violated that Article.
In both a court-martial and non-judicial punishment situation, the accused person is entitled to the
assistance of a military lawyer.
This is a very basic review of a complicated system of criminal law. Readers who wish to know more can
click on the link to learn more about the UCMJ.
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