Uniform Code of Military Justice

The Uniform Code of Military Justice (UCMJ) was enacted by Congress in 1950 (10 U.S.C.A. § 801 et seq.) to establish a standard set of procedural and substantive criminal laws for all the U.S. military services. (It went into effect the following year.) The UCMJ applies to all members of the military, including those on active duty, students at military academies, prisoners of war, and, in some cases, retired or reserve personnel. The UCMJ changed Military Law in several ways, especially by providing substantial procedural safeguards for an accused, such as the right to be represented by counsel, to be informed of the nature of the accusation, to remain silent, and to be told of these rights.

Military law exists separately from civilian law. The rights of individuals serving in the Armed Services are not as extensive as civilians rights because the military is regulated by the overriding demands of discipline and duty. Recognizing this need for a separate body of regulations to govern the military, Article I, Section 8, Clause 14, of the Constitution empowers Congress "to make Rules for the Government and Regulation of the land and naval Forces."

Until the enactment of the UCMJ, the Army and Navy each had its own system of military justice, known as the Articles of War in the Army and the Articles for the Government of the Navy. The UCMJ ensures that any accused member of the armed services will be subject to the same substantive charges and procedural rules and that he or she will be guaranteed identical procedural safeguards.

Some provisions of the UCMJ concern Common Law crimes, such as murder, rape, Larceny, and Arson. The elements of these offenses do not differ from those in state codes. Other provisions deal with offenses that are unique to the military, including absence offenses, duties-and-orders offenses, superior-subordinate relationship offenses, and combat-related offenses.

Absence offenses include absence without leave (art. 86, 10 U.S.C.A. § 886) and desertion (art. 85, 10 U.S.C.A. § 885). These are the most prevalent crimes in the military. Approximately 75 percent of all courts-martial involve charges of being absent without leave under article 86.

Duties-and-orders offenses include failure to obey an order or regulation (art. 92, 10 U.S.C.A. § 892) and being intoxicated on duty (art. 112, 10 U.S.C.A. § 912). Superior-subordinate relationship offenses include violations such as Contempt for officials (art. 88, 10 U.S.C.A. § 888) and mutiny (art. 94, 10 U.S.C.A. § 894). Combat-related offenses include misbehavior before the enemy (art. 99, 10 U.S.C.A. § 899) and misconduct as a prisoner (art. 105, 10 U.S.C.A. § 905).

The UCMJ also includes the so-called General Articles (arts. 133 and 134, 10 U.S.C.A. §§ 933, 934), which proscribe certain conduct in nonspecific terms. Article 133 makes unlawful any conduct by an officer that is "unbecoming to an officer and a gentleman." Article 134 proscribes "all disorders and neglects to the prejudice of a good order and discipline…, [and] all conduct of a nature to bring discredit upon the armed forces." The constitutionality of these articles was upheld in the face of a First Amendment challenge in Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974).

Article 15 (10 U.S.C.A. § 815) of the UCMJ provides for nonjudicial punishment. Most minor violations of the UCMJ are processed under this article. The accused appears before his commanding officer, who passes judgment and imposes the sentence, if any. The military favors nonjudicial punishment because it gives the commanding officer a direct method of discipline, the process is quick and efficient, and the accused's record is not marred by a Court-Martial conviction.

Procedurally, the UCMJ provides for a three-level system of courts that is similar to the structure of civilian courts. Criminal matters are handled by courts-martial, which are analogous to civilian trial courts. There are three types of court-martial: the general court-martial, the special court-martial, and the summary court-martial. A general court-martial is used for serious offenses. The court has five or more members, but a defendant also has the right to have a military judge hear the case. The prosecutor, defense counsel, and military judge in a general court-martial must be lawyers. The military judge advises the court on matters of law and makes rulings as to the introduction of evidence. A general court-martial may impose any penalty that is authorized by the UCMJ as punishment for the offense.

A special court-martial concerns itself with intermediate-level offenses. The court has three or more members, but the defendant may elect to be tried by a military judge. The maximum sentence that may be imposed by a special court-martial is six months of confinement, forfeiture of pay, reduction in rank, and a bad-conduct discharge.

A summary court-martial may be used only to prosecute enlisted personnel for minor offenses. Only one officer hears the case, and the maximum penalty is confinement for one month, forfeiture of two-thirds of a month's pay, and reduction in rank.

Under the UCMJ, all cases in which the sentence involves death, a punitive discharge, or imprisonment for a term of one year or more must be reviewed by a Court of Criminal Appeals (CCA). A CCA must also affirm any sentence imposed by a court-martial before the sentence can be executed. Each branch of the armed services has its own CCA. Generally, a three-judge panel reviews court-martial convictions and sentences. CCA judges may be commissioned officers or civilians, but all must be lawyers.

The U.S. Court of Appeals for the Armed Forces (USCAAF), formerly known as the Court of Military Appeals, is the highest civilian court responsible for reviewing the decisions of military courts. It is an appellate court and consists of three civilian judges appointed by the president to serve 15-year terms. The USCAAF hears all cases where the death penalty is imposed, all cases forwarded by the Judge Advocate general of each service for review after CCA review, and certain discretionary appeals. Its decisions are appealable to the U.S. Supreme Court.

The UCMJ has been attacked by critics who believe that it severely and unnecessarily restricts First Amendment and other constitutional rights of military personnel. Article 15's nonjudicial punishment has been criticized as susceptible to abuse, bias, and conflicts of interest. Because the military courts are necessarily different from civilian courts, the U.S. Supreme Court has limited the jurisdiction of the UCMJ. Discharged soldiers cannot be court-martialed for offenses committed while in the military. Civilian employees of the armed forces overseas and civilian dependents of military personnel accompanying them overseas are also not subject to the UCMJ. In addition, a crime committed by a member of the armed services must be related to military service in order for the UCMJ to apply.

Early in 2001, the National Institute of Military Justice, an independent nonprofit organization, sponsored the creation of a five-member panel of experienced military leaders to coincide with the 50th anniversary of the UCMJ. Chaired by Walter Cox III, a former chief judge of the USCAAF, it was known as the Cox Commission, and it collected information and heard testimony on the UCMJ's effectiveness after half a century. Based on its findings, the Cox Commission concluded that certain elements of the UCMJ were in need of reform. One recommendation was that military judges should be given more autonomy and that commanding officers should assume a lesser role in pretrial court-martial activity. These changes, noted the commission, would help ensure fair and impartial trials for defendants. The commission also recommended that death-penalty cases should be tried by a court-martial panel of 12 (in some trials, the number has been as few as five); that panels should be instructed not to consider race as a factor in their deliberations; and that the number of attorneys with capital-case experience should be increased. Another recommendation was that the UCMJ should revise its sexual-misconduct regulations to make them less Arbitrary. The commission noted that the sexual-misconduct provisions from the original UCMJ were outdated in the twenty-first century and that they were at least in part responsible for several of the notorious sexual-misconduct scandals within the military during the 1990s. Although not requested by the military or any other part of the government, the recommendations were submitted to the House and Senate Armed Forces Committee and the Pentagon for their review.

Further readings

Barry, Kevin J. 2002. "A Face Lift (and Much More) for an Aging Beauty: The Cox Commission Recommendations to Rejuvenate the Uniform Code of Military Justice." Law Review of Michigan State University-Detroit College of Law (spring).

Index and Legislative History, Uniform Code of Military Justice. 2000. UCMJ 50th anniversary ed., 1950–2000. Buffalo, N.Y.: W.S. Hein.

Pound, Edward T., et al. 2002."Unequal Justice." U.S. News & World Report (December 16).

Turner, Lisa L. 2000. "The Articles of War and the UCMJ." Aerospace Power Journal 14 (fall).