The Differences Between Military Court and Civilian Court

A Historical Glance at Military Court

Military court is a unique legal specialization.  The practice of military law date back to the Continental Congress of 1775.  The genesis of this system came from the British Articles and adopted to become the first American Articles of War.  Also, referred to as military code, this justice system maintains certain procedures that are different from civilian law.  Most notably, the absence of the court martial system is a primary difference between the two court systems.  Edward Sherman explained in The Civilization of Military Law that the military cautiously protects its justice system.

Uniform Code of Military Justice System

The Uniform Code of Military Justice (UCMJ) is the primary guidance system for the military criminal process.  Soldiers face trial and possible conviction in either a military court or under military court rules.  For the most part, the UCMJ covers almost all members of the military.  Exceptions to the coverage National Guard and Air Force Guard members who are not on active duty.  Likewise, members of auxiliary units such as the Civil Air Patrol and Coast Guard Auxiliary are not subject to UCMJ.  Cadets and midshipmen at the United States Military, Naval, Air Force, Merchant Marine, and Coast Guard academies are subject to UCMJ regardless of their active duty status.

Court-Martial System

The court martial system in military court evolved through the 19^th and 20^th centuries.  It became a more autonomous legal structure with laws and processes that were separate from civilian criminal proceedings.  Another aspect of the military system is that many of the crimes under the system are not considered crimes under civilian law.  For instance, desertion is a criminal act under military code, but it is not under civilian practice.  Other military crimes include mutiny, sedition, failure to obey orders, and insubordinate conduct.

There are various types of court martials.  The summary court-martial is typically used for minor crimes.  It is comprised of only one commissioned officer.  Penalties may include confinement of 30-days, sentencing to hard labor, forfeiture of 66% of a month’s pay, and reduction to the lowest pay grade.

The special court-martial looks at misdemeanor crimes.  Confinement for these infractions is one year. Hard labor punishment is three months.  Subsequently, a soldier may lose 66% of their monthly pay for up to one year and may receive a reduction in pay grade.  Soldiers may also be discharged from service.

The last category of court martial is the general court-martial.  This part of the system is used for the most serious crimes.  A military judge and at least five enlisted members make up the system.  The judge, if requested by the defendant, can decide on the case.  In some cases, the death penalty is possible.

Additionally, the impact of superiors in the military chain of command is different than that of their civilian counterparts.  Under Article 15 of the UCMJ, military leaders have the authority to impose non-judicial punishment (NJP) on their subordinates for minor infractions.  The commanders carry out the sentencing without the presence or involvement of a judge or jury.

Judge Advocates

The Judge Advocate General, or the JAG Corps address cases under military rules.  The process is different in civilian cases since legal proceedings are handled by a public or private attorney.

Appellate Courts

Another distinct difference between the military and civilian systems of justice is the appeals process. Civilian courts hear appeals and process them through circuit courts and up to federal courts.  Individual branches of the military handle appeals in the military justice system.  For example, the Army has the Army Court of Criminal Appeals, and the Marines have the Marine Court of Criminal Appeals.

Is it a Fair System?

There is much debate about whether the military justice system is equitable.  Like any judicial system, there are good areas and bad.  Generally speaking, the system is only as good as those who run it.  The answer to this debate also depends on who is responding to it.  Some civilian attorneys feel that the system is unfair, yet there are those who uphold the system completely.  There are, and there will continue to be the reformation of the military justice system.  The same applies to the civilian justice system.  No system is perfect; therefore, justice ultimately prevails.

The Right Attorney Does Matter

The most significant concern anyone should have is the experience level of the defense counsel who will represent their case.  JAG defense attorneys cannot represent a service member until after the investigation is complete. The results of an investigation and the resulting adverse administrative action or court-martial can be a life-changing event that will impact the solder’s life, career, and family. Obtaining the best possible outcome for a case is mission critical.  Therefore, an experienced, seasoned civilian military defense attorney is a great option. Contact military defense attorney John L. Calcagni III today.