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- posted: May 11, 2016
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Military service members, just like civilians, are subject to the local and federal criminal laws of the United States. However, service members are also subject to the US Armed Forces’ own set of laws and rules which is separate and apart from the civilian criminal justice system. The Manual for Courts-Martial is an Executive Order of the Commander-in-Chief of the United States and it sets out the rules and procedures for courts-martial (a military trial), as well as offenses and punishments. Many of the crimes under military law are the same as in civilian criminal codes, except service members may also be prosecuted for military-specific offenses like absence without leave, desertion, mutiny, disrespecting a superior officer, misbehavior before the enemy, and conduct unbecoming of a gentleman. For acts considered crimes by both the military and civilian law enforcement, whether a military service member faces prosecution by court-martial or by civilian court is up to the prosecutors. Both court systems have jurisdiction, but they usually coordinate to determine who will prosecute the case. However, it is possible for a defendant to be tried for the same crime by both a military court-martial and a state criminal court.
The Armed Forces also has procedure for non-judicial punishment, which is used for minor infractions and is not considered to be a criminal conviction. Under this disciplinary structure, service members may be confined with diminished rations, reduced in rank or pay, or be assigned extra duties. Whether a service member faces non-judicial punishment or a court-martial is largely up to the discretion of the officer imposing punishment.
The Uniform Code of Military Justice, included within the Manual for Courts-Martial, is the applicable code of law for military criminal prosecutions and non-judicial punishments. Under the UCMJ, a defendant in a military tribunal will have military counsel detailed (assigned to her) but she may also hire civilian counsel to represent her. The civilian counsel and detailed military counsel will coordinate unless the defendant excuses the military counsel.
There are a number of reasons why a defendant may hire a civilian defense attorney in addition to or instead of his detailed military counsel. For example, having a team of two lawyers working on your behalf is bound to be better than just one, and since detailed military counsel is provided at no extra cost to the military member, the defendant enjoys two legal advocates for half the cost. And, because military counsel is detailed rather than chosen, getting a civilian lawyer gives the defendant the added benefit of being able to consider the personality and experience of the lawyer to advocate on his behalf. Having a lawyer on the outside of the military structure as well as one within can help provide a truly comprehensive defense. For these reasons, many courts-martial and non-judicial punishment defendants choose to hire civilian counsel to defend their case and military service reputation.
