3 Challenges Presented by U.S. Military Justice System

3 Challenges Presented by U.S. Military Justice System

Military service members accused of or being investigated for misconduct usually wind up in front of the military's proprietary justice system.

The military courts, governed by the Uniform Code of Military Justice, differ significantly from civilian courts. While this is by no means a complete list, here are three major ways the military system is different.

Military commanders have considerable authority

Military commanders are given a great level of control over what happens to an accused individual. They can direct certain actions and nullify others.

For example, they have near-unilateral power to launch an investigation, initiate the separation of a service member or send a matter to military court, better known as a court-martial.

In essence, that means even after an individual is investigated by civilian police or investigators, a commander can elect whether to prosecute the individual on the military side of the house. So, in theory, someone considered by police to be fully culpable for a crime could, by the commander's election, avoid prosecution by the military authorities.

Administrative separation boards hear cases

A member identified for separation with an Other Than Honorable (OTH) discharge or, with more than six years of service, can present his or her case to an administrative separation board prior to being involuntarily separated.

Depending on rank and length of service, an individual facing separation from the military has certain limited rights to appeal.

The separation board, typically comprised of three military members, all in a rank superior to the individual facing removal, will hear the case, decide if the misconduct has occurred and, if so, determine whether the individual should be separated from the service and at which level of discharge.

Such a decision cannot be truly appealed, except for a longshot petition to the Separation Authority (think, General officer) or that service's human resources command.

A common misconception is that removal from military service can be either honorable or dishonorable. In fact, the military can discharge a service member in any of the following classifications:

  • Honorable
  • General, Under Honorable Conditions
  • Other Than Honorable
  • Bad Conduct
  • Dishonorable

At an administrative separation hearing, the worst discharge possible is Other Than Honorable (OTH). A bad conduct or dishonorable discharge can be given only at court-martial.

Defense counsel is always provided

A third major difference between military and civilian courts is that all military members accused of or being investigated for misconduct are given a military defense counsel or legal assistance attorney to represent them.

Unlike in the civilian system, counsel is appointed regardless of the defendant's income level or ability to pay.

Additionally, the service member has the opportunity to hire civilian counsel to represent them. If they do hire a civilian lawyer, they will still be provided the military defense counsel for free, in essence getting two lawyers for the price of one.

Implications of military discharge can be significant

A separation or discharge from the military can have heavy implications.

It can affect benefits provided under the GI bill, use of military clothing and commissary services and even the ability to have a military funeral.

Moreover, most employment applications ask, “Have you ever been discharged from the military service under conditions that were other than honorable?” Anyone discharged under such conditions would have to answer “yes” to this question, which could severely hamper a job search.

In light of these implications, it behooves any current or former military service member facing the military justice system to fight for the best possible characterization of a discharge.

Depending on the benefits at stake, it may also be well worth considering additional legal counsel. While a civilian counsel will cost the service member, appointed (“free”) counsel are typically overworked with heavy caseloads in understaffed offices.

Civilian counsel, teamed with appointed military counsel, could give your situation the attention it deserves.

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Vito J. Abruzzino is a lawyer with Harrington, Hoppe & Mitchell, Ltd. and a Judge Advocate in the U.S. Army Reserves. He can be reached at vabruzzino@hhmlaw.com or at (330) 337-6586.