Evolution of the Uniform Code of Military Justice from 1950

Uniform Code of Military Justice

UCMJ

Before 1951, the Army and Navy operated under laws derived directly from the British Articles of War in force prior to the Revolutionary War (Pound 2002). In those days, soldiers and sailors possessed few rights. The old system enforced discipline rather than justice. Punishments ranged from execution, flogging and hard labor with ball and chain. The changes began. In 1850, the Navy outlawed flogging. After World War I, the three levels of courts were introduced and continue to this day. These are the general, special and summary levels, applied according to the seriousness of the charges. The crucial time was World War II when 2 million martial courts were formed at a ratio of nearly 1 for every 8 American soldiers. These courts executed more than 100 servicemen and imprisoned 45,000. The Uniform Code of Military Justice was created by public demand and outcry. President Harry S. Truman signed the legislation on May 5, 1950. It was praised as the fairest system of military justice in the world (Pound).

This Code mingled old laws with new ones (Pound 2002). Under the new, commanding officers retained much power. This includes the responsibility to convene court-martials and choose jury panels. New checks were introduced, however, and these were similar to civilian procedures. The new Code created a formal appellate review system, which included the U.S. Court of Military Appeals, now known as the Court of Appeals for the Armed Forces. More importantly, it expanded protections. It gave serviceman the right to remain silent and to be informed that any statement could be used against them at court-martial. The Code also gave them free military defense counsel in serious court-martial trials. From 1968 to 1983, court-martial trials were supervised by military judges. Congress later introduced major changes. In 1987, the Supreme Court deleted the requirement for offenses tried by court-martials to be service-connected. This change gave military jurisdiction over all crimes committed by servicemen. Examples were and are drug use, assault, murder and fraud (Pound).

The Uniform Code of Military Justice or UCMJ is viewed as a system that balances the need of the commander to ensure proper order and discipline in the armed forces and the principles of due process and fairness (Turner 2000). Servicemen who go beyond U.S. jurisdiction need to understand both UCMJ and the laws of the foreign countries as well as the international community. In cases like this, the foreign country would have the right to prosecute offenders from the U.S. armed forces who break their criminal laws. This is the concept of foreign criminal jurisdiction. International law also affects the legality of the actions of a service member. In some cases, the international community would have the right to prosecute alleged war crimes. The UCMJ replaced command authority in criminal justice with one, which would balance individual rights under the American concept of fairness and due process with the need to ensure proper order and discipline. Before 1951, the laws governing the Army and Navy were commander-centered. They grew out of ancient military codes, which drew upon the right and necessity of the commander to impose strong disciplinary measures as he found fit. Courts were his tools and the rights of the accused were little considered. The more than 16 million men and women serving the U.S. armed forces during World War separated from the service with a poor view of the Articles of War enforced (Ohman 2005). The need for reforms was the outcry of the American Bar Association, American Legion, and other private organizations and the public. This led to the creation and enactment of the UCMJ. Each amendment of the Code increased protections for the members of the armed forces. Of the total volunteer force at present, 2.39 service members per thousand are said to be court-martialed in the Air Force. This represented only a fraction of those court-martialed during World War II. Records also showed that there were only 851 courts-martial in all types in the Air Force in 1999. They had no right to a defense lawyer under the Articles of War. Under the new Code, servicemen enjoy greater rights to a lawyer more than civilians. They are given a qualified defense counsel without charges in all special and general courts-martial. In comparison, civilians are afforded a counsel without charge only when their financial situation warrants it. Article 31 of this new Code provides more protection to a member who is charged with an offense and under question for official law enforcement or command purposes than a civilian would be in the same situation Many of these measures were already recognized in the military forum years before they were introduced in civilian criminal trials (Turner, Ohman).

The UCMJ

George Washington emphasized that discipline is the soul of the Army (Turner 2000). But discipline would not be possible without justice. The UCMJ is seen to be both just and suited to fill the unique needs of the military. It aims at promoting justice, helping in maintaining proper order and discipline in the armed forces, promoting efficiency and effectiveness in the military establishment and, thus, strengthening the national security of the United States itself. The Judge Advocate General of the armed forces recommends the assignment for the duty of judge advocates of the Army, Navy, Air Force and Coast Guard. The Commandant of the Marine Corps directs the assignment for duty of judge advocate of the Marine Corps. The President decides on the procedures for the investigation and management of charges, allegations or information on the qualifications of a military judge or military appellate judge.

Courts-Martial

The three kinds of courts-martial in each of the armed forces are the general courts-martial, the special courts-martial, and the summary court-martial. The general courts-martial consist of a military judge and five members or more or only a military judge. The special court-martial consists of three members of more, a military judge and three members or only a military judge. And the summary court-martial consists of one commissioned officer. General courts-martial have jurisdiction over any punishable offense according to restrictions. They also have jurisdiction over a person subject to trial by a military tribunal. Special courts-martial have jurisdiction over non-capital punishable offense and may determine punishment according to limitations. And summary courts-martial have jurisdiction over non-capital punishable offenses, except those of officers, cadets, aviation cadets and midshipman. If the accused objects to summary court-trial, the trial may be made by a special or general court-martial (Turner).

Non-judicial Punishment

The Code limits the kind and amount of punishment, the categories of commanding officers determining the punishment and the kinds of courts-martial to which the case may be referred (Turner 2000). In such cases, the commanding officer may, in addition to admonition or reprimand, impose disciplinary punishments for minor offenses without going through the court martial. He may suspend an accused officer of his command for no more than 30 days, arrest in quarters an officer of general flag rank in command for no more than 30 days, or confine any other personnel in his command on bread and water or diminished rations for no more than three consecutive days. Other measures may be correctional custody of not more than seven consecutive days, forfeiture of no more than 7 days' pay, reduction to the next inferior pay grade, impose extra duties for not more than 14 consecutive days, suspension of no more than 14 consecutive days, retention of no more than 14 days' pay, correctional custody for no more than 30 consecutive days, forfeiture of no more than one-half of one month's pay per month for two months and reduction to the lowest or intermediate pay grade (Turner).

Pre-trial and Trial

Charges and specifications shall be entered by the person making them under oath (Air War College 2005). The accused may not be compelled to incriminate himself by answering any incriminatory questions. An investigation shall be conducted and include an inquiry into the truth of the charges, a consideration of the form of charges, and a recommendation of the disposition of the case. Within eight days, the charges shall be forwarded to the officer with general court-martial jurisdiction. The convening authority shall refer this to his staff judge advocate for consideration and advice (Air War College).

The trial procedure shall include sessions, continuances, challenges, oaths, statute of limitations, former jeopardy, pleas of the accused, his opportunity to obtain witnesses and other evidence, a refusal to appear or testify, contempt's, depositions, admissibility of records of courts of inquiry, voting and rulings, the required number of votes, the announcement of action by the court and the court's record of trial (Air War College 2005)

Sentencing

This prohibits punishment by flogging, branding, marking, tattooing on the body or any other cruel or unusual punishment (Air War College 2005). Neither may it exceed the limits set by the President for that offense. The effective date may not extend to any pay or allowances before the date on which the sentence is approved. Confinement may be in imposed or enforced in any place under the control of any of the armed forces or in any penal or correctional institution under the control of the United States (Air War College).

Discharge

A commissioned who seeks trial by court-martial for having been wrongfully dismissed shall be granted that trial on the charges on which he was dismissed (Air War College 2005). If the court martial acquits him or if the sentence adjudged does not include dismissal or death, the Secretary of Defense shall substitute a form of discharge for the dismissal (Air War College 2005). If a general court-martial does not convene within six months from the preparation of an application for trial, the Secretary shall make the substitution. If the officer is discharged from any armed forces by administrative action or is dropped from the rolls by order of the President, however, he shall have no right to trial (Air War College).

Conclusion: How Just is the UCMJ?

Navy/Marine Corps Judge Advocate General spokeswoman Carolyn Alison commented to media that no statistics on the rate of military convictions were kept but that there are more safeguards in place for the defendant than there are in civilian courts (O'Meara 2001). An overview of the Code stressed the purpose of military law as the promotion of efficiency and effectiveness in the military. This is to insure the national security of the United States. The JAG said that the military system is specifically tailored for the armed forces and that it balances constitutional guarantees and fairness with the needs for proper order and discipline. She then said that those subject to military law did not have the same constitutional guarantees given under civilian law where justice is the objective. Critics observed that the military system of justice is broken down and that it is ironic and tragic that those who are sworn to protect the Constitution were often deprived of basic Constitutional rights. She also felt that court-martials are out of control. There are approximately 10,000 or more of these each year. This situation, the 98% conviction rate, the reality of untrained and understaffed defense attorneys and blatant command influence altogether were serious problems confronted by military personnel who confront the military rule of law (O'Meara).#