Military Law Flashcards
What Articles are ‘procedural in nature’?
Articles 1 - 76 & 135 - 146.
What Articles are ‘punitive’?
Articles 77 - 134.
What document implements the UCMJ?
Manual for Courts-Martial
Define ‘jurisdiction’?
The power to execute the laws and administer justice.
Who does the UCMJ apply to?
- All service members on AD.
- Reservists on active duty, including drill weekends.
- Military retirees.
What regulation is the controlling authority for the Dept of the Navy?
US Navy Regulations (Navy Regs)
What are some subjects that Navy Regs cover?
- The role of the Chief of Naval Operations and the Commandant of the Marine Corps (CMC).
- Ceremonial details and protocol.
- Various prohibitions on relationships between members of the Department of the Navy (e.g., Navy Regs define and prohibit fraternization and sexual harassment).
How many separate offenses are listed under Article 134?
55.
What does each punitive Article consists of?
- Text of the article.
- Elements of the offense. Facts the government must prove beyond a reasonable doubt to convict a service member at court-martial.
- Explanation. A narrative discussion of the offense with definitions of key terms.
- Lesser included offenses.
• Maximum punishment.
Note: Offenses addressed at nonjudicial punishment, summary court-martial, and special court-martial have jurisdictional limits that may affect the maximum punishment possible. - Sample specification(s).
What are the steps in finding the proper charge & specification?
- Get all of the facts.
- Identify the potential charge(s) by reviewing the contents of Part IV, MCM, 2005 to determine the applicable article(s).
- Examine the elements and all explanation paragraphs in Part IV, MCM, 2005, for each article you think may be applicable.
- Match the facts as you know them with the elements and explanation paragraphs.
- Draft the specification(s) using the sample specifications contained in Part IV, MCM, 2005.
- Do not hesitate to call the trial counsel (prosecutor) who supports your unit.
What is an ‘initiating’ charge?
To bring or report an allegation concerning an offense to the attention of military authorities.
Who can initiate a charge?
Person, civilian or military.
By what means is a charge initiated?
Letter, hotline complaint, telephone call, log book entry, etc.
What is a ‘preferring’ charge?
To formally accuse a military member, under oath, of an offense under the UCMJ.
What is a charge?
Article of the UCMJ (by number) that has allegedly been violated.
What is a specification?
A statement of how the accused is supposed to have violated the article.
What is a lesser included offense (LIO)?
An offense other than the one charged, which contains some, but not all, of the elements of the offense charged, and no elements different from the offense charged.
What examples of LIO’s?
- Unauthorized absence (UA) is an LIO of desertion.
2. Wrongful appropriation is an LIO of larceny.
What is intent?
That state of mind required to commit an offense.
What must an accused have to be criminally liable?
- Have committed an act.
2. Have had a “guilty mind” while doing the act.
What is general intent?
When the article does not indicate that a specific state of mind or element of knowledge is part of the offense.
What are examples of general intent?
- UA.
2. Simple assault.
What is specific intent?
when the article requires a specific state of mind or element of knowledge to exist in order for an offense to be committed.
What are examples of specific intent?
- Desertion.
- Larceny.
- Assault with intent to inflict grievous bodily harm.
What are some examples of defenses?
- Lack of requisite criminal intent.
- Alibi.
- Impossibility.
- Ignorance or mistake of fact.
- Self-defense.
- Coercion or duress.
- Accident.
What are the different levels of the Military Justice System, least to most severe?
- Non-punitive measures.
- Nonjudicial punishment (NJP).
- Summary court-martial (SCM).
- Special court-martial (SPCM).
- General court-martial (GCM).
What are non-punitive corrective measures?
Corrective measures designed to overcome noted deficiencies in a unit or an individual and are not imposed as a punishment.
What are examples of non-punitive measures?
- Informal and formal counseling.
- Exhortation.
- Disapproval.
- Criticism.
- Administrative withholding of privileges.
What measures must Extra Military Instruction (EMI) utilize?
- Logically relate to the deficiency.
2. Serve a valid training purpose.
When can EMI be performed after normal working hours?
- After approval of the commanding officer.
2. Under supervision.
When must EMI never be performed?
- For more than two hours a day.
2. On Sunday.
What is a Nonpunitive Letter of Caution (NPLOC)?
A written censure that is considered a personal matter between the individual receiving it and the superior issuing it.
What is Non-judicial Punishment (NJP)?
Lowest level of military justice, NJP is imposed by commanding officers and officers-in-charge on members of their commands for minor offenses.
What are other names for NJP?
- NJP.
- Office hours (Marine Corps).
- Captain’s mast (Navy/Coast Guard).
- Article 15 punishment (Army/Air Force).
Who may impose NJP?
Company commanders and higher may impose punishment on commissioned and warrant officers and enlisted members of their commands.
Who is authorized to only impose punishment on enlisted members of their unit only?
- Officers-in-charge who are specifically detailed as such by Table of Organization (T/O),
- Commanding general’s orders, or
- Other such authority
Who may delegate the power to impose NJP?
Only a flag or general officer-in-command
If the second in command assumes command are they granted NJP authority?
Yes, succession to command authority & not a delegation authority.
What level of offenses are punishable at the NJP level?
Minor offenses under the UCMJ.
What does the accused have the right to know during an NJP?
- The nature of the offense(s) of which suspected.
2. That the Commanding Officer is contemplating office hours.
When does the accused have an absolute right to refuse NJP?
- At all times, unless attached to or embarked on a vessel.
2. During the proceeding, until punishment is imposed (imposed when announced by CO).
What options does a CO have when NJP is refused?
- Refer the case to trial by court-martial (or, if he or she is not a court-martial convening authority, forward the case to a senior commanding officer recommending such referral).
- Decide to take no further action.
- Use administrative/nonpunitive measures to dispose of the case.
What rights does the accused have to a defense counsel during an NJP?
No right to detailed defense counsel at NJP. Before deciding whether or not to accept NJP, an accused has the right to confer with an independent lawyer to help make that decision.
What hearing rights does the accused have?
- An absolute right to remain silent and to make no statement at all.
- The right to ask questions of any witness who makes a statement at the hearing.
- To present evidence in his or her behalf (including a statement of his or her own).
- The right to end the hearing and refuse NJP at any time before punishment is actually announced.
What appeal rights does the accused have?
The right to appeal any punishment imposed.
What is the Unit Punishment Book (UPB)?
The document the unit uses to record the imposition of NJP on enlisted personnel.
What is different when officers receive NJP?
The imposition of punishment is reported by naval correspondence to the CMC. A UPB page is not prepared.
Authorized punishment depends on what rank?
- Commander who imposes punishment.
2. Marine who receives it.
How long & what part of a punishment can be suspended?
Part or all of the punishment imposed at NJP may be suspended for up to six months.
What actions can the accused commit while under a suspension?
- Stays out of trouble during the period of suspension, the suspended punishment is remitted (goes away).
- Is involved in further misconduct during the period of suspension, then the suspension can be vacated, and the suspended punishment takes effect.
An officer-in-charge (OIC) may never award what?
- Punishment to an officer.
2. More than that punishment imposable by a company-grade company commander.
Who can commanders reduce?
Only those whom he has the authority to promote to the grade from which being reduced.
Who can Bn/Sqd Cmdrs or higher reduce?
Sgt & below.
Can SNCO’s be reduced at NJP?
No.
Who has the authority to reduce SNCO’s at NJP?
The Commandant.
Who does the accused appeal to?
The next senior commander.
What are grounds for an appeal?
- Unjust punishment.
2. Punishment disproportionate to the offense.
What are the appeal procedures?
- Must be made in writing.
- Standard naval letter from accused via the imposing officer.
- Plt Cmdr or 1stSgt should assist accused.
- Must be submitted within five calendar days.
What options are available to the appealing authority?
- Approve the punishment in whole.
- Set aside the punishment (remit).
- Suspend all or any part of the punishment, for a period not to exceed six months.
- Change to a lesser form of punishment (mitigate).
Define convene?
To create, appoint, and bring into existence
Define convening authority (CA)?
- The commander who creates, appoints, and brings into existence a court-martial.
Who is the lowest level commander authorized to convene a court-martial?
Bn or Sqd Cmdr
Define refer?
To send a specific case to a specific, previously convened court-martial for trial.
Define Summary Court-Martial?
The lowest, least severe form of court-martial under the UCMJ. Not a judicial proceeding & not a criminal prosecution like a SPCM or GCM.