What says a civilian lawyer can appear in a military court?

Each service sets its own rules for practice in courts-martial for that service.  We have links to all those rules here on our External Resources Page.  Generally, any civilian attorney who is licensed in a state may appear in a court-martial without formally seeking admission.  That’s not the case for military appellate courts, which do require each attorney to formally request to be admitted before filing anything with an appellate court. 

What is the difference between military law and civilian law?

The military has its own set of criminal laws, procedural rules, rules of evidence, and its own criminal court system, including both trial courts and a system of appellate courts.  When people say “military law” they generally mean the Uniform Code of Military Justice (UCMJ). 

Who is subject to military law?

The UCMJ applies to members of the military and, in some special cases, civilians who are operating with the military.  When it comes to active-duty members of the military, UCMJ has no geographical or temporal limit:  it applies everywhere, all the time… even when other state or federal laws also may apply.  In addition to the well-known services, the UCMJ applies to members of the National Oceanic and Atmospheric Administration, the Public Health Service, and other governmental organizations when assigned to and serving with the armed forces.  Enemy prisoners of war are also subject to the UCMJ while in the custody of the United States.

What crimes get you kicked out of the military?

In order to be kicked out of the military for misconduct, the act of misconduct must be “serious.”  This rule applies both in courts-martial and in administrative separation.  It is the same standard for all branches of the U.S. Armed Forces, set by Department of Defense Policy.  In order for a service member to be separated for misconduct, the alleged act of misconduct must fall under an Article of the Uniform Code of Military Justice (UCMJ) that carries a possible Punitive Discharge (either a Bad Conduct Discharge or Dishonorable Discharge) as part of the listed maximum punishment under the Manual For Courts-Martial (MCM).  You can download the current version of the MCM here.

What is the most common crime for offenders in the military?

Believe it or not, the most commonly prosecuted military crime is False Official Statement!  Each year, certain crimes see more attention than others depending on Pentagon policies and emphasis.  In the last decade, sexual assault has been a top priority.  During the Iraq and Afghanistan wars, offenses like Desertion (Article 85) and Missing Movement (Article 87) were common.  However, year after year, the overall winner of most-charged Article remains False Official Statement (Article 107).  Why?  Because if you are suspected of a crime and open your mouth the military has a ready-made way to punish you.  If you deny the accusation or say you didn’t do it, and the military does not believe you, you must be lying, right?  Additionally, if you say something that contradicts, or even appears to contradict something else you said, then that disconnect can be used to prosecute UCMJ Article 107.  That’s why we recommend that you seek competent legal advise before making any statement to anyone in the military about your situation.

What happens if a soldier commits a crime?

Any suspected or alleged misconduct must immediately be investigated by the appropriate authority.  There are a variety of different law enforcement agencies in the military dedicated to investigating alleged misconduct by military personnel (learn more about them here).  If that investigation concludes that a crime was committed, the appropriate decision authority will select what type of action to take.  The list of options include prosecution by court-martial, immediate nonjudicial punishment under UCMJ Article 15, and various other kinds of adverse administrative action.

Can civilians be tried in military court?

Generally speaking, the UCMJ does not extend to civilians, but that is not always the case.  Article 2 of the UCMJ (Title 10 U.S. Code, Section 802) says that several kinds of people we generally think of as “civilians” are actually subject to the UCMJ.  These include retired members of a regular component of the armed forces who are entitled to pay, retired members of a reserve component who are receiving hospitalization from an armed force, and all persons serving with or accompanying the U.S. Armed force in the field during a time of declared war or contingency operation.

What type of court is unique to military law?

A military trial court is known as a “court-martial.”  Courts-martial come in many different types, and you can learn more about those here.  Convictions and decisions by courts-martial are reviewed and can be appealed to each military service’s Court of Criminal Appeals (CCA).  All military courts fall under the Court of Appeals for the Armed Forces, which sits above each service’s CCA.

What does UCMJ do?

The UCMJ is a collection of federal laws, passed by Congress just like other federal statutes.  These laws are the underpinning of all military legal authority, such as the Rules for Court-Martial and Military Rules of Evidence.  Organized into “articles” running from 1 to 146A, the UCMJ can also be found as part of Title 10, United States Code, in Sections 801 through 946A.

Can you fight a UCMJ?

Sometimes service members use the term “UCMJ” as shorthand for adverse action of some kind.  You may have heard personnel say things like “the CO is gonna UCMJ Jones for missing the formation this morning.”  What that really means is that a commander is going to exercise the authority given to her/him under the UCMJ to punish a service member.  Sometimes that process is immediate, like Nonjudicial Punishment (NJP) under UCMJ Article 15.  Sometimes it is very formal, like a General Court-Martial.  Regardless of what kind of UCMJ action is happening, there are always rules and rights that apply, and we strongly encourage each service member to seek good military legal advice if they find themselves in that situation.