By 149th Fighter Wing Legal Office, 149th Fighter Wing
/ Published November 23, 2014
JOINT BASE SAN ANTONIO - LACKLAND, Texas -- The Uniform Code of Military Justice (UCMJ) is the military's criminal code. It was enacted in 1950 and became effective in 1951. It has been amended in numerous years since then. The UCMJ, which is part of the US Code (USC), is implemented through executive orders of the President. Those executive orders form a comprehensive volume of law known as the Manual for Courts-Martial (MCM).
The MCM's preamble explains that the purpose of military law "is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States." In the opinion of many legal scholars, the UCMJ has not only kept pace with innovations in civilian criminal jurisprudence, but has actually led the way, establishing more safeguards to protect the rights of those accused of criminal offenses. For instance, the military had its own broader version of the "Miranda rights" fifteen years before the US Supreme Court recognized that right for civilian suspects. In addition, an accused facing the potential of a general court-martial (the most serious level of courts-martial) has far greater rights during a pretrial "Article 32" investigation than does a civilian suspect before a grand Jury, the civilian counterpart.
Almost annually, changes are made to both the UCMJ and the MCM. These changes are typically in the form of fine-tuning, but also occasionally encompass more sweeping changes. The Air Force provides inputs for proposed changes through the Joint Service Committee on Military Justice. In addition to the UCMJ and the MCM, one should not overlook appellate court decisions by the Air Force Court of Criminal Appeals, the United States Court of Appeals for the Armed Forces, and the Supreme Court of the United States.
The UCMJ is essentially a complete set of criminal laws. It includes many crimes punished under civilian law (e.g., murder, rape, drug use, larceny, drunk driving, writing bad checks, etc.), and it goes beyond that to punish other conduct which affects good order and discipline in the military. Those unique military crimes include, for example, such offenses as desertion, absence without leave, disrespect towards superiors, failure to obey orders, dereliction of duty, wrongful disposition of military property, drink on duty, malingering, and conduct unbecoming an officer. The UCMJ also includes provisions punishing misbehavior before the enemy, improper use of countersign, misbehavior of a sentinel, misconduct as a prisoner, aiding the enemy, spying, and espionage. Some of those offenses are capital offenses, meaning the maximum punishment is death. The UCMJ reflects the seriousness and importance of the military mission and recognizes ·what ultimately is being protected: the security of our nation.
Under the UCMJ, disciplinary action for minor offenses generally is taken via "nonjudicial punishment" under Article 15, as supplemented by Part V, MCM, and Air Force Instruction 51-202. This allows commanders to dispose of certain offenses without trial by court-martial. Service members first must be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander's intent to impose nonjudicial punishment. The service member may then consult with a defense counsel.
A member accepting nonjudicial punishment proceedings may have a hearing with the commander. The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence. The commander must consider any information offered during that hearing and must be convinced by reliable evidence that the member committed the offense before imposing punishment. Members who wish to contest their commander's determination or the severity of the punishment imposed may appeal to the next higher commander. The appeal authority may set aside the punishment, decrease its severity, or deny the appeal, but cannot increase the punishment. Nonjudicial punishment does not constitute a criminal conviction. Various kinds of punishments are allowed under Article 15 and its implementing regulations, with the most serious being reduction in grade (for enlisted personnel), forfeiture of pay and extra duties. There are maximum limits for each category of punishment and maximum punishments for an officer and enlisted offender.
There are three types of courts-martial summary, special and general. Trial by summary
court-martial provides a simple procedure for resolution of charges involving minor incidents of misconduct. The summary court-martial consists of one individual, typically a judge advocate. The maximum punishment imposable by a summary court-martial is considerably less than a special or general court-martial. The accused must consent to trial by summary court martial before the court can commence. A special court-martial is the intermediate level of courts. An accused facing a special court martial can be sentenced to no more than twelve months confinement (or a lesser amount if the offense has a lower maximum), forfeiture of two-thirds pay per month for twelve months, a bad conduct discharge (for enlisted personnel), and certain lesser punishments. In a general court-martial, the maximum punishment is that set for each offense under the MCM, and may include death (for certain offenses), confinement, a dishonorable or bad conduct discharge for enlisted personnel, a dismissal for officers, or a number of other forms of punishment. Before a case goes to a general court-martial, a pretrial investigation under Article 32 must be conducted, unless waived by the accused. An accused before any Air Force court-martial is entitled to free legal representation by an Air Force defense counsel, and can also retain civilian counsel at his or her own expense.
One topic that is the subject of much misinformation from "barracks lawyers" is that of discharges from the military, and particularly the distinction between punitive and administrative discharges. Punitive discharges can only be issued by a court-martial. Administrative discharges, on the other hand, are issued when a member separates administratively. Punitive discharges include a bad conduct discharge (BCD), a dishonorable discharge (DD) and a dismissal. A dismissal applies only to officers and cadets, while a BCD and DD apply only to enlisted members. Administrative discharges include honorable discharges; uner honorable conditions (general) discharges; under other than honorable conditions (UOTHC) discharge; and entry level separations.
A discharge is defined as a complete separation from all military status, duties, obligations, and responsibilities that have been gained by entry into the Air Force. The type of discharge a person receives could affect his or her ability to get a civilian job in the future. A person may find it difficult to be hired, simply because he or she did not have an honorable discharge.
Airmen should recognize that the type of discharge they receive is a serious matter and that if they receive any discharge other than an honorable discharge.
An honorable discharge is the highest form of discharge. This type of discharge is separation from the Air Force with honor. An honorable discharge means the person has served the Air Force well by meeting or exceeding the required standards of duty performance and personal conduct. The honorable discharge reflects to the world that the member has satisfactorily completed a commitment to military service. All veterans' benefits are given to an eligible person with an honorable discharge. It is important to know that the Montgomery GI Bill (MGIB) requires personnel to receive an honorable discharge in order to qualify for educational benefits.
A general discharge is separation from the Air Force with honor, but to a lesser degree than the honorable discharge. This discharge is given when normally faithful service is marred by negative aspects of a person's duty performance or personal conduct. Most veterans benefits are given to an eligible person with an under honorable conditions (general) discharge. (The MGIB is a notable exception.)
An under other than honorable conditions (UOTHC) discharge means separation from the Air Force with the worst possible administrative discharge. A person receives a UOTHC discharge when his or her personal conduct falls significantly below acceptable military standards. This discharge may result from one or more acts, or failures to act, which are considered to be an obvious departure from the high standards of conduct expected of military members. This type of discharge may be given only after a person has had the opportunity to request a hearing by an administrative discharge board, unless the discharge is requested by an accused in lieu of trial by court-martial. Significant veteran s benefits are denied by a UOTHC discharge.
A bad conduct discharge may be adjudged by a court-martial when it is an authorized punishment for the charged offense(s) and the court believes the accused warrants such severe punishment. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Air Force. However, vested benefits from a prior period of honorable service are not forfeited by receipt of a BCD that would terminate the member's current term of service.
A dishonorable discharge is more severe than a BCD, and is usually reserved for those who, in the opinion of the court-martial, should be separated under conditions of dishonor after conviction of a serious offense. A dishonorable discharge, like a BCD, deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Air Force for the member's current term of service.
A dismissal of a commissioned officer or a cadet is, in general, the equivalent of a dishonorable discharge of an enlisted member. A d dismissal deprives one of substantially all benefits administered by the Department of Veteran Affairs and the Air Force.
This commentary is part of the 149th Fighter Wing Legal Office's Preventative Law Series.