What Are the Three Types of Court Martial?

A Guide to the Three Types of Court Martial in the US Military

The court martial process is the unique judicial procedure reserved for active duty members of the United States Armed Forces. If you serve in the military and commit a criminal offense or breach military regulations, a court martial is the most severe legal process you are likely to face. For less serious offenses and breaches of military decorum, non-judicial punishments are issued by the offending service member’s commanding officer. When an offense eclipses the scope of what qualifies for non-judicial punishment, court martial proceedings begin.

Attorney Aaron Meyer has years of experience providing military criminal defense representation to US servicemembers accused of breaching the Uniform Code of Military Justice (UCMJ). Court martial proceedings are serious, and the accused potentially faces an abrupt end to their military career and the loss of all the benefits that come from it. It’s vital for all US service members to understand the three types of court martial, what they entail, and when they apply.

Each form of court martial employed by the branches of the United States military will involve a different composition of military judges and jury members, different rights for the accused, and each form of court martial includes different types of proceedings.

Summary Court Martial

While a summary court martial is essentially the least severe form of court martial in the US military, any service member facing a summary court martial must still take these proceedings seriously. This form of court martial includes a single commissioned officer who acts as judge and jury for summary court martial proceedings. The summary court martial process is generally reserved for enlisted service members who commit less severe offenses.

In a summary court martial, the accused does not automatically have the right to a military attorney free of charge, but they may hire private military defense counsel to represent them during their summary court martial proceedings. The accused has the right to remain silent, or they may choose to testify. The accused will also have the right to call and cross-examine witnesses.

As the summary, court martial process typically handles less severe offenses, the potential penalties that can result from a summary court martial conviction are generally less harsh than the sentences that may be imposed by the other forms of the court martial process. However, the accused can still face up to one month of confinement, hard labor, reduction in rank, and loss of pay from their sentencing.

Special Court Martial

Often considered the misdemeanor level military court, the special court martial process is typically reserved for offenses that exceed the scope of what a summary court martial procedure would handle. Enlisted service members, midshipmen, and commissioned officers can all potentially face special court martial if their offenses are more severe than what the summary court martial process can handle.

In a special court martial, the accused will face a jury of no less than three service members of higher rank than the accused. The accused has the right to request that one-third of the jury be enlisted, and they will also have the right to legal representation from a military defense attorney free of charge. They may hire private defense counsel if they wish to do so.

The potential penalties from a special court martial are generally more severe than a summary court martial, but there are limitations as to what the special court martial judge may prescribe as a penalty for conviction. Some of the penalties the special court martial process cannot mete out to an accused service member include:

• Confinement for longer than one year.
• Hard labor for more than three months, without confinement.
• Dismissal from the Armed Forces.
• Dishonorable discharge.
• Capital punishment.
• Forfeiture of pay for more than one year. If the special court martial judge decides to include forfeiture of pay in the accused’s sentence, they may not sentence them to more than forfeiture of 2/3 of monthly pay.

While the special court martial process cannot include these penalties, the accused still faces potentially harsh sentencing that can include hard labor without confinement for up to three months, confinement up to one year, up to one year of 2/3 forfeiture of pay, and demotion in rank to the lowest enlisted rank. However, commissioned officers tried in special court martial cannot be demoted or face dismissal from the service.

General Court Martial

The highest level of the court martial process in the US military is the general court martial, typically considered the felony-level court martial process for US service members. It is possible for any individual subject to the UCMJ to face general court martial proceedings, including enlisted service members, midshipmen, and enlisted officers.

When the accused faces general court martial proceedings, they may request to be tried by a judge alone or a jury of no less than five members. If the accused is enlisted, they have the right to request for one-third of the jury panel to be enlisted members of higher rank. Enlisted jury panel members may also be equal in rank to the accused so long as they obtained their rank before the accused obtained the same rank.

The accused service member has the right to legal counsel, and they may either hire a private military defense attorney or choose legal representation from a detailed military lawyer free of charge. Under the rules of the general court martial process, the jury panel or the judge alone (if the accused chose to be tried by judge alone) has the right to issue any sentence deemed acceptable by the UCMJ, up to and including the death penalty. This should indicate how important it is for any US service member facing general court martial to secure legal counsel.

What Determines the Type of Court Martial Proceedings an Accused Service member Will Face?

The UCMJ includes an extensive list of all the possible offenses that can potentially lead to court martial proceedings. Additionally, the UCMJ explains which types of court martial proceedings are most acceptable for certain situations. For example, depending on the severity of a certain offense, the accused may face special or general court martial prosecution.

If you are accused of a UCMJ violation of any kind, your commanding officer will serve you a formal notice of the punitive action you face. Less serious offenses are usually penalized by non-judicial punishment, while more serious offenses will lead to court martial proceedings. The UCMJ will dictate what type of legal situation your case will involve based on the severity of the offense and your rank.

Can a Service member Face Military and Civilian Prosecution?

In some cases, it is possible for joint jurisdiction to come into play. However, the Constitution’s double jeopardy clause prevents an individual from facing trial for the same offense in both civilian federal court and federal court martial. The Constitution does permit, however, the accused to potentially face prosecution for the same offense in federal court martial proceedings and state criminal court.

When joint jurisdiction comes into play, civilian and military legal authorities will convene to determine which party has jurisdiction over the case and which court will oversee the proceedings. It is possible for a service member to face criminal prosecution at the state level in civilian criminal court and prosecution through a court martial process at the federal level for the same offense, but this rarely occurs. Typically, as a matter of policy, only one of these entities will handle the case.

Why Do I Need Legal Counsel for a Court Martial?

If you are a military service member facing summary, special, or general court martial proceedings, your entire career, and your future could be on the line. While some court martial proceedings offer the accused the opportunity to secure legal counsel from a detailed military lawyer free of charge, a private military defense attorney can likely provide a higher level of legal counsel and more individualized attention to the case. While an accused service member has the right to defend themselves, it is always best to have legal representation you can trust in this situation. The UCMJ is quite clear in the penalties it prescribes for certain offenses, so it is vital to understand what you are facing and the value of legal representation as you begin your case.

Attorney Aaron Meyer and the team at Aaron Meyer Law have maintained a stellar record as military defense counsel due to Attorney Meyer’s aggressive style of legal representation. While the rules for court martial are different from civilian criminal court, one key similarity is that the burden of proof for conviction rests on the accuser. The prosecution must establish the accused’s guilt beyond a reasonable doubt. Attorney Meyer’s defense philosophy is to dismantle the prosecution’s case at its foundational level and has successfully maintained a record of zero convictions for his clients, thanks to this effective strategy.

If you face any level of court martial proceedings, it is essential to know what to expect and what your military defense attorney should do for you. If you are ready to speak with an experienced defense attorney about your situation and pending court martial proceedings, contact Aaron Meyer Law and schedule a consultation with our team as soon as possible.