Uniform Code of Military Justice
Effective upon its ratification in 1788, Article I, Section 8 of the United States Constitution
provided that Congress
has the power to regulate the land and naval forces.
On 10 April 1806, the United States Congress enacted 101 Articles of War, which were not significantly revised until over a century later. Discipline in the sea services was provided under the Articles for the Government of the United States Navy
(commonly referred to as Rocks and Shoals
). The Articles of War evolved during the first half of the twentieth century and were amended in 1916 and 1920. In 1948, Congress substantially reformed the Articles pursuant to the Selective Service Act of 1948
, but its naval counterpart remained little changed. The military justice system continued to operate under the Articles of War and Articles for the Government of the Navy until 31 May 1951, when the Uniform Code of Military Justice came into effect.
The UCMJ was passed by Congress on 5 May 1950, and signed into law by President Harry S. Truman
the next day. It took effect on 31 May 1951. The word uniform
in the Code's title refers to its consistent application to all the armed services in place of the earlier Articles of War, Articles of Government, and Disciplinary Laws of the individual services.
The UCMJ, the Rules for Courts-Martial (the military analogue to the Federal Rules of Criminal Procedure
), and the Military Rules of Evidence (the analogue to the Federal Rules of Evidence
) have evolved since their implementation, often paralleling the development of the federal civilian criminal justice system. In some ways, the UCMJ has been ahead of changes in the civilian criminal justice system. For example, a rights-warning statement similar to the Miranda warnings
(and required in more contexts than in the civilian world where it is applicable only to custodial interrogation) was required by Art. 31 (10 U.S.C. § 831
) a decade and a half before the U.S. Supreme Court
ruled in Miranda v. Arizona
; Article 38(b) (10 U.S.C. § 838
(b)) continued the 1948 Articles of War guarantee that qualified defense counsel be provided to all accused without regard to indigence (and at earlier stages than required in civilian jurisdictions), whereas the U.S. Supreme Court only guaranteed the provision of counsel to indigents in Gideon v. Wainwright
. Additionally, the role of what was originally a court-martial's non-voting "law member" developed into the present office of military judge whose capacity is little different from that of an Article III judge
in a U.S. district court
. At the same time, the "court-martial" itself (the panel of officers hearing the case and weighing the evidence) has converted from being essentially a board of inquiry/review presiding over the trial, into a jury of military service-members. The current version of the UCMJ is printed in the latest edition of the Manual for Courts-Martial
(2019), incorporating changes made by the President (executive orders) and National Defense Authorization Acts
of 2006 and 2007.
are conducted under the UCMJ and the Manual for Courts-Martial
(MCM). If the trial results in a conviction, the case is reviewed by the convening authority
– the commanding officer who referred the case for trial by court-martial. The convening authority has discretion to mitigate the findings and sentence, set aside convictions, and/or to remand convictions and/or sentences back to a court-martial for re-hearing.
If the sentence, as approved by the convening authority, includes death, a bad conduct discharge
, a dishonorable discharge
, dismissal of an officer, or confinement for one year or more, the case is reviewed by an intermediate court. There are four such courts – the Army Court of Criminal Appeals
, the Navy-Marine Corps Court of Criminal Appeals
, the Air Force Court of Criminal Appeals
, and the Coast Guard Court of Criminal Appeals
Within the exceptions below, as codified in Article 2 of the UCMJ, personal jurisdiction
attaches, regardless of the physical global location of the servicemember, over all members of the uniformed services of the United States
: the Air Force
, Coast Guard
, Marine Corps
, NOAA Commissioned Officer Corps
, and Public Health Service Commissioned Corps
. While the Coast Guard is administered under Title 14 of the United States Code when not operating as part of the U.S. Navy, individuals commissioned or enlisted in the Coast Guard are subject to the UCMJ as an Armed Force. However, commissioned members of the NOAA
, as uniformed services
, are only subject to the UCMJ when attached or detailed to a military unit by competent orders, or when militarized by Presidential executive order
during a national emergency
or declaration of war
- Full-Time Support (FTS) personnel on active duty orders serving pursuant to the authority of 10 USC 10211 or 10 USC 12310, including:
- Army/Air Force "Active Guard and Reserve (AGR),"
- Navy "Full-time Support (FTS),"
- Marine Corps "Active Reserve (AR)," or
- Coast Guard "Reserve Program Administrators (RPA)."
- "Traditional" reservists performing either:
- Full-time active duty service under orders for a specific period, i.e., Annual Training, Active Duty for Training, Active Duty for Operational Support, Active Duty Special Work, Mobilization or Recall to Active Duty, Canvasser Recruiter, etc., or
- Performing part-time Inactive Duty, i.e., Inactive Duty Training, Inactive Duty Travel and Training, Unit Training Assembly, Additional Training Periods, Additional Flying Training Periods, Reserve Management Periods, etc., all of which are colloquially known as "drills."
- Retired Reservists who are either recalled to active duty pursuant to Secretarial authority, or who are receiving medical treatment in an Armed Forces hospital (see below).
in the National Guard of the United States
are subject to the UCMJ only if activated (mobilized or recalled to active duty) in a Federal capacity under Title 10 by an executive order
issued by the President
, or during their Annual Training periods, which are orders issued under Title 10, during which periods of duty they are federalized into the National Guard of the United States. Otherwise, members of the National Guard are usually exempt from the UCMJ. However, under Title 32
orders, or State Active Duty orders issued directly under State authority, individual members of the Army National Guard and Air Force National Guard are still subject to their respective State codes of Military Justice, which often resemble the UCMJ very closely, and/or their State civil and criminal laws.
Several States also authorize either naval or military organized militia forces. These are collectively known as the State Guard
State Guard organizations are organized, trained, equipped, armed, disciplined, and administered under each State's own sovereign authority, and are not subject to a Federal recall to active duty, nor are the individual members subject to the UCMJ in their capacities as members of the State Guard. State Guard organizations typically are organized similarly to a military force, and usually report to the senior National Guard officer in each State, known as the Adjutant General. In this sense, the State Guard are auxiliaries to each State's Constitutionally authorized organized militia forces, the Army and Air Force National Guard. The State Guard is often specialized, based on each State's requirements, for missions such as wilderness search and rescue, light aviation, forest firefighting, law enforcement, or general emergency management roles. Under each State's own authorities, State Guard members may be ordered to State Active Duty (SAD), in a status similar to National Guard members in a Title 32 status but solely under State authority and discipline, and also may be provided with the training, equipment, and authority to act as law enforcement officers with powers of arrest. Each State sets the requirements to join, remain, be promoted or rewarded, and conditions of employment such as a minimum amount of duty performed in a year, and whether any duty is paid or unpaid, and whether the individuals are covered by various civil service or retirement pension plans. Most State Guard duty is performed without pay, in a volunteer status. While the State Guard organizations are subject to recall to SAD, or other workforce requirements as imposed by their State, they are not subject to either partial or full mobilization authorities under Title 10. However, the individual State Guard members often have dual-status as both State Guard and
a Federally recognized uniformed services member, such as a Texas State Guard officer who is also a retired US military officer. Such an individual could be recalled to active duty under both SAD as a State Guard member, or under one of the various authorities to recall retired or reserve military members to active duty (10 USC 688, various 10 USC 123XX authorities, and others), but not both because a Federal status trumps a State status. State Guard members could thus be subject to the UCMJ at all times under their Federal status, and under specific State military and civil/criminal codes under their State status.
Members of military auxiliaries
such as the Civil Air Patrol
and the Coast Guard Auxiliary
are not subject to the UCMJ, even when participating in missions assigned by the military or other branches of government. However, members of the Coast Guard Auxiliary can be called by the Commandant of the Coast Guard into the Temporary Reserve of the Coast Guard, in which case they become subject to the UCMJ.
Additionally, the following categories of service members are subject to the UCMJ as indicated:
- Retired members of the Regular Component who are entitled to retirement pay, per Article 2(a)(4) of UCMJ, regardless of the authority under which retired from active service and transferred to the Retired List of their respective Service's Regular Component,
- Retired members of the Reserve Component, whether entitled to retired pay or awaiting retired pay at age 60 as a Gray Area reserve retiree, who are receiving hospital care from an Armed Force, per Article 2(a)(5) of UCMJ,
- Members of the Fleet Reserve/Fleet Marine Corps Reserve (FR/FMCR), as enlisted retired Navy or Marine Corps personnel who have not yet served a total of 30 years of combined active, fleet reserve, and retired service, per Article 2(a)(6) of UCMJ. Both Regular Component and Reserve Component enlisted retirees are transferred to the FR/FMCR upon retirement if they have less than 30 total years, but more than 20 cumulative years of active service, and remain subject to the UCMJ in that status until they complete 30 total years of active and fleet reserve service, and are transferred to their respective original Service Retired List (Regular Component or Retired Reserve). The FR/FMCR is not applicable to any officers, any servicemember retired for disability and transferred to the Temporary or Permanent Disability Retired Lists, nor any enlisted retirees except those of the Navy and Marine Corps as noted above.
- Persons in custody of the U.S. Armed Forces serving a sentence imposed by a court-martial, per Article 2(a)(7) of UCMJ,
- Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces, per Article 2(a)(8) of UCMJ,
- Prisoners of War (POW)/Enemy Prisoners of War (EPW) in the custody of the U.S. Armed Forces, per Article 2(a)(9) of UCMJ,
- In time of declared war or a contingency operation, persons serving with or accompanying a US armed force in the field, per Article 2(a)(10), and
- Detained medical personnel and military chaplains in the custody of the U.S. Armed Forces.
Historically, the UCMJ applied to "persons serving with or accompanying an armed force in the field" and thus included military contractors
"in time of war."
In the John Warner National Defense Authorization Act for Fiscal Year 2007
, which was enacted in 2006, Congress expanded the UCMJ's applicability to cover contractors during a "declared war or contingency operation."
The change came following the Nisour Square massacre
perpetrated by Blackwater Security personnel.
In 2008, the first contractor was prosecuted under the new provision, marking the first time since 1968 that a contractor had been charged under military law.
The civilian defendant, a dual Canadian-Iraqi citizen, was charged with stabbing a co-worker, another Iraqi civilian.
The contractor ultimately pleaded guilty.
Under Article 15 of the Code (Subchapter III), specified military commanders have the authority to exercise non-judicial punishment
(NJP) over their subordinates for minor breaches of discipline. These punishments are carried out after a hearing before the commander but without a judge or jury. Punishments are limited to a reduction in rank for enlisted members, loss of pay, restriction of privileges, extra-duty, reprimands, and, aboard ships, confinement. Guidelines for the imposition of NJP are contained in Part V of the Manual for Courts-Martial
and the various service regulations.
Complaints of wrongs and loss of property
Article 138 of the UCMJ provides that any service member may bring a "complaint of wrongs" against their commanding officer to the next senior officer exercising general court-martial authority over their commander. That officer will investigate the complaint of wrongs, and then report the findings of the investigation to the service Secretary (i.e., Secretary of the Army
, Air Force
Article 139 (10 U.S.C. § 939) provides for the convening of an investigation board of from one to three commissioned officers to investigate and adjudicate claims of willful damage, destruction, or theft of personal property, only if both parties are subject to the Code.
Subchapter I, "General Provisions" has six sections (articles):
Article 1 (Definitions), defines the following terms used in the rest of the UCMJ: Judge Advocate General
, the Navy
, officer in charge
, superior commissioned officer
, accuser, military judge, law specialist, legal officer, judge advocate, record, classified information
, and national security
. This article also provides that, "The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force" for the purposes of the UCMJ.
Under Article 31, coercive self-incrimination
is prohibited as a right under the Fifth Amendment
. Apprehending officers utilize the Article 31 warning and waiver to prevent this self-incrimination, much like the Miranda warning
. Article 31 was already well-established before Miranda
refers to the pre-trial investigation and hearing conducted before charges are referred to trial for court-martial. It may be conducted by a Judge Advocate General
(JAG) officer or non-JAG officer.
Subchapter X, "Punitive Articles", is the subchapter that details offenses under the uniform code. The 2019 MCM incorporates both major and minor changes to certain articles, and relocates many articles; careful examination of the source document is required to ensure full understanding, and previous "cheat sheets" and training materials may therefore be outdated. Those articles with a title annotated by "*" were changed from the 2016 MCM:
General article (Article 134)
The general article
(Article 134) authorizes the prosecution of offenses not specifically detailed by any other article: "...all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty." Clause 1 of the article involves disorders and neglect, "...to the prejudice of good order and discipline in the armed forces." Clause 2 involves, "...conduct of a nature to bring discredit upon the armed forces." Clause 3 deals with non-capital offenses violating other federal law
; under this clause, any such offense created by federal statute
may be prosecuted under Article 134. United States v. Perkins
, 47 C.M.R. 259 (Air Force Ct. of Military Review 1973).
- Animal abuse
- Check, worthless making and uttering – by dishonorably failing to maintain funds
- Child pornography
- Dishonorably failing to pay debt
- disloyal statement
- Disorderly conduct, drunkenness
- Extramarital sexual conduct
- Discharging firearm through negligence
- Gambling with subordinate
- Negligent homicide
- Indecent conduct
- Indecent language
- Pandering and prostitution
- Self-injury without intent to avoid service
- Visual depiction, nonconsensual distribution or broadcast
- ^ U.S. Const., Art. I, Sec. 8
- ^ "Truman Signs Code of Service Justice". The New York Times. May 7, 1950. p. 82. Retrieved March 31, 2014.
- ^ Supreme Court Appellate Jurisdiction Over Military Court Cases Archived July 19, 2011, at the Wayback Machine by Anna C. Henning, Congressional Research Service, October 6, 2008
- ^ Appellate Review, CAAF website (retrieved on October 13, 2008)
- ^ Assembly, Indiana General. "Indiana Code 2014 - Indiana General Assembly, 2017 Session". Retrieved November 29, 2016.
- ^ "About « UCMJ – United States Code of Military Justice". Retrieved November 29, 2016.
- ^ Woodrick v. Divich, 24 M.J. 147, 150 fn2 (C.M.A. 1987) ("Article 2(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 802(a)(2), which includes '[c]adets, aviation cadets, and midshipmen,' applies to cadets at the service academies, but it does not encompass AFROTC cadets.").
- ^ "10 U.S. Code §801. Article 1. Definitions". Cornell Law School Legal Information Institute. Retrieved May 20, 2020.
- ^ "10 U.S. Code §802. Art. 2. Persons subject to this chapter". Cornell Law School Legal Information Institute. Retrieved May 20, 2020.
- ^ a b David C. Hammond, The First Prosecution of a Contractor Under the UCMJ: Lessons for Service Contractors, Service Contractor (Fall 2008), pp. 33-34.
- ^ a b c "Hearing begins in contractor stabbing case". Stars & Stripes. April 17, 2008.
- ^ a b c Staff Report (December 1, 2009). "Former N.C. senator serves tour in Iraq". NC Lawyer – via Salisbury Post.
- ^ 10 U.S.C. § 801 Art. 1: Definitions.
- ^ James R. Silkenat and Mark R. Shulman. The Imperial Presidency and the Consequences of 9/11: Lawyers React to the Global War on Terrorism (2007). Greenwood Publishing Group: p. 193.
- ^ Manual for Courts-Martial (2019 ed.). IV-138 to IV-151, and A17-18.
Last edited on 17 January 2021, at 20:01
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