Term
| The military has a unique judicial process that depends heavily on the independent judgements of the___? |
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Definition
commanders
The commander is engaed at every step of the system. |
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Term
| What does the UCMJ define? |
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Definition
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Crimes for which soldiers can be prosecuted at courts martial
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contains bothe civilian-type offenses (rape, murder, and larceny)
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strictly military offenses (desertion, disobedience, and disrespect)
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soldier must be charged with an offense recognized under the UCMJ
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Term
| What does Article 133 of the UCMJ cover? |
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Definition
| Conduct unbecoming an officer and a gentleman |
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Term
| What does Article 134 of the UCMJ cover? |
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Definition
Conduct prejudicial to good order and discipline
- known as the general article
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Term
| What are the three types of court martial? |
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Definition
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Term
| What are the discipline options of the CO in the US Army? |
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Definition
- CO may decide not to use the UCMJ
- CO may decide to use non-punitive measures (Article 15)
- CO may recommend court martial (S.S.G.)
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Term
| Traits of a Summary Court Martial |
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Definition
- can only be enlisted personnel
- presidning official must be a commissioned officer (usually field grade)
- accused in not entitled to a military defense lawyer
- a soldier can hire a civilian defense lawyer
- a soldier must consent to disciplinary action
- a company comdr does not hav ethe authority to convene a summary CM. He can recommend on to the BN Cmdr
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Term
| Traits of a Special Court Martial |
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Definition
The intermediate trial court in the military’s criminal justice system
Convened by a brigade commander. Can try enlisted personnel, warrant officers and commissioned officers
Two forms:
military judge and not less than three members
military judge sitting alone
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Term
| Traits of the General Court Martial |
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Definition
- Highest miltary court usually convened by a general officer
- requires more formal detailed administrative procedures
- requires article 32 investigation
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Term
| Maximum punishment for summary |
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Definition
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not exceed confinement for one month
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hard labor without confinement for 45 days
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restriction for two months
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forfiture of two-thrids of one months base pay or reduced to E1
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Term
| Maximum punishement for special court martial |
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Definition
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forfieture of 2/3 base pay for 6 months
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confinement for 6 months and reductioon to E1
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commisioned officers may not be dismissed or confined
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Term
| Maximum Punishment General Court Martial |
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Definition
Adjudge any sentence authorized by the President of the United States:
dishonorable discharge
dismissal
confinement for life or a lesser period
forfeiture of all pay and allowances
death sentence |
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Term
| Identifying the leader's role in the judicial process |
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Definition
The leader’s role is simply to dispose of an instance of misconduct or to make an independent recommendation to a superior officer that he dispose of the misconduct.
The company commander is the first person in the military justice system with formal authority to dispose of cases of misconduct. |
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Term
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Definition
Do doing nothing (no grounds)
A range of nonpunitive measures
Administering a company grade Article 15
Suspended Article 15
Recommending court-martial. |
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Term
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Definition
Character and military service of the accused.
Nature and circumstances of the offense, as well as the extent of the harm caused, including effect on morale, health, safety, welfare, and discipline. This reminds you that our justice-based system reinforces your unit’s good order and discipline. |
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Term
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Definition
Appropriateness of the authorized punishment to the particular accused or offense.
Possible improper motives of the accuser.
Reluctance of the victim or others to testify.
Cooperation of the accused in apprehension or conviction of others.
Availability and admissibility of evidence.
Jurisdiction over the accused and offenses. |
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Term
| Question: What is the definition of an enumerated offense? |
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Definition
| Answer: These are offenses in which Congress has specifically told the military are criminal and which include elements that the government must prove by proof beyond a reasonable doubt in order to obtain a conviction. |
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Term
| Question: What are the three types of court-martials? |
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Definition
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Term
| Question: What are examples of nonpunitive measures? |
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Definition
Extra training
Issuing an oral counseling statement
Writing a letter of reprimand
Imposing a bar to reenlistment
Withdrawing pass privileges
Processing a rehabilitative transfer
Initiating administrative discharge proceedings |
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Term
| What factors should be considered before disposing of an instance of misconduct? |
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Definition
Character and military service of the accused
The nature and circumstances of the offense and the extent of the harm caused
Effect on morale, health, safety, welfare, and discipline
Appropriateness of the authorized punishment to the particular accused or offense
etc |
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Term
| Can a soldier be discharged under ‘Bad Conduct Discharge’ in a Summary Court Martial? True or False |
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Definition
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Term
| What are the maximum penalties that can be adjudges against a soldier in a Summary Court Martial? |
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Definition
Punishment may not exceed:
Confinement for one month
Restriction for 2 months
Hard labor w/o confinement for 45 days
2/3 base pay for 1 month
Reduction to E-1 (E4 and below)
Reduction of one Grade (E5 and above) |
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Term
| What are the maximum penalties that can be adjudges against a soldier in a Special Court Martial? |
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Definition
Punishment may not exceed:
Confinement for more than 6 months
2/3 base pay for 6 months
Reduction to E-1
Note: Commissioned Officers may not be dismissed or confined at a special court-martial |
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Term
| Can a commissioned officer be dismissed or confined at a special court-martial? Yes or No. |
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Definition
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Term
| What are the maximum penalties that can be adjudges against a soldier in a General Court Martial? |
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Definition
| Any sentence authorized by the President of the United States in the Manual for Courts-Martial, including a dishonorable discharge, dismissal, confinement for life or a lesser period, forfeiture of all pay and allowances and, in some cases, death. |
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Term
| Can an enlisted soldier be separated from the military with a Bad Conduct Discharge under a Special Court Martial? Yes or No |
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Definition
| Yes. If the General Court-Martial Convening Authority convenes the special court-martial and a punitive discharge is specifically authorized, a bad conduct discharge can also be adjudged against an enlisted accused. However, commissioned officers may not be dismissed or confined at a special court-martial |
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Term
| Can a soldier be tried in a civilian court and then a military court? Yes or No. |
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Definition
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Term
| An investigation must begin when |
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Definition
A soldier is:
accused of a crime, or
suspected of committing a crime |
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Term
| AR 15-6: Non-Criminal Investigations |
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Definition
A commander at any level may:
Conduct a formal or non-formal
Appoints an investigating officer to determine facts and makes recommendations
Must be a commissioned officer, Warrant Officer, or DA civilian GS13 or higher
Are not open
Investigating officer must consult with JAG before beginning the investigation |
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Term
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Definition
Must be conducted before a General Court Martial can occur.
Each charge and specification must be thoroughly and impartially investigated.
The purposes of the investigation is to inquire into the truth of the charges, consider the form of the charges, and make recommendations as to their disposition.
Typically directed by Bde Cdr (special court martial convening authority) |
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Term
| Right of the accused under Article 32 Investigation |
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Definition
Attend the hearing
Present Evidence
Cross examine witnesses
Right to counsel |
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Term
| Investigating Officers do what? |
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Definition
Findings of Fact
Recommendations
Accused Receives a Copy of Report
Accused Files Objections within 5 days
Convening Authority take action. |
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Term
| What is a preliminary inquiry? |
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Definition
| The process of an initial investigation conducted by a commander when he receives information that a member of his command is accused of a crime or suspected of committing a crime. |
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Term
| What are the accused’s rights at an Article 32 investigation? |
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Definition
| The accused has the right to attend the hearing, present evidence, cross-examine witnesses, and be represented by counsel. |
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Term
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Definition
common method for military police and CID to investigate crime is to search for and seize evidence and to apprehend those who commit crimes
The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures
The Fourth Amendment applies to soldiers as well. However, its application reflects a balance between a soldier’s privacy interest and the demands of military necessity and national security. |
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Term
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Definition
Only the following persons may authorize a search and seizure:
Commander
Military Judge
Military Magistrate |
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Term
| Who controls the person or place? Authority to Search |
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Definition
On installations worldwide, the commander with authority over the place to be searched may authorize a search of that place.
Off the installation (CONUS), the commander who controls the military property may authorize a search (i.e., military vehicle or equipment). A commander cannot authorize the search of a soldier’s off-post quarters or personal property.
Off the installation (OCONUS), the commander who controls the military property may authorize a search. A commander may also authorize a search of off-post quarters or personal property so long as he has authority over the person by treaty or local agreement permits. |
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Term
| Who controls the person or place? Authority to Apprehend |
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Definition
Generally, if there is probable cause to believe a soldier committed an offense, then any commissioned, warrant, petty or noncommissioned officer, or law enforcement official may apprehend the person wherever he may be without need for authorization from a commander, judge or magistrate.
Exception: When apprehension is made in the home, a warrant or authorization is required. Apprehension in an on-post “private dwelling” requires authorization from a magistrate or the commander with control over the dwelling, typically the installation or garrison commander.
“Private dwellings” include on-post quarters, BOQ, and BEQ. Apprehension in an off-post private dwelling requires a warrant from a civilian magistrate or judge. |
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Term
| Search and Seizure Requirements |
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Definition
Probable Cause
a reasonable belief that the person to be apprehended is committing or has committed a crime.
Totality of the Circumstances
taken all the information available about the person or items sought, is it reasonable to believe that the person committed the offense or that the items sought will be found in the place to be searched.
Neutral and Detached
When the commander authorizes an apprehension or search, he is acting in a judicial capacity and must therefore be fair and impartial in the decision.
A Cdr cannot act as both investigator and judge |
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Term
| Types of Search and Seizures |
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Definition
Consent
Attempted when there is no probable cause
Must be voluntary (freely given)
Consent may be partial or limited (restricted)
Incident to Apprehension
Any person who has been properly apprehended may be searched to ensure the safety of the apprehending official and others, and to prevent destruction of evidence
Exigent Circumstances
A search authorization is not required where the delay involved in obtaining the authorization would likely result in the removal, destruction or concealment of the evidence sought. |
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Term
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Definition
| A CofC simply lists the item(s) seized, and who is in control of the item until offered at trial |
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Term
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Definition
Not a Search
Primary purpose must be to ensure security, military fitness, good order and discipline of a unit
Does not require probable cause
Considered ‘Administrative’
Note: The Fourth Amendment does not restrict a commander’s authority to order administrative inspections. |
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Term
| Inpections ‘smells’ like a search when |
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Definition
An inspection immediately followed a report that someone had committed an offense and the inspection was not previously scheduled.
Certain individuals in a unit are targeted for inspection.
Soldiers are subjected to substantially different intrusions (some are patted down and some are strip searched.)
If any one of these occur in an inspection, and a soldier objects the government must prove at trial, by clear and convincing evidence, that the commander’s primary purpose was, in fact, administrative, and not for purposes of prosecution. |
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Term
| How to stay out of trouble |
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Definition
Articulate what you are doing and why you are doing it
Tailor the scope of the inspection to your primary purpose
Clarify what is and is not subject to inspection
Ensure all soldiers inspected are treated equally
Issue clear procedures to follow in the event contraband is found.
Consider scheduled inspections. |
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Term
| What is probable cause for apprehension? |
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Definition
| Probable cause for apprehension is a reasonable belief that the person to be apprehended is committing or has committed a crime. |
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Term
| What is probable cause for search? |
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Definition
| Probable cause to search is a reasonable belief that items connected to criminal misconduct are located in the place or on the person to be searched. |
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Term
| What does it mean to be neutral and detached? |
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Definition
| When the commander authorizes an apprehension or search, he is acting in a judicial capacity and must therefore be fair and impartial in the decision. |
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Term
| What is a search incident to apprehension? |
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Definition
| Any person who has been properly apprehended may be searched to ensure the safety of the apprehending official and others, and to prevent destruction of evidence |
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Term
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Definition
| Inspections are not considered "searches" in a legal sense. They are, instead, examinations ordered by a commander, the primary purpose of which is to determine and ensure security, military fitness, or good order and discipline of a unit |
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Term
| Who are the three people that can authorize a search or apprehension? |
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Definition
Commander (and Acting Commander)
Military Judge
Military Magistrate (Judge Advocate). |
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Term
| Can you authorize a CID search on an anonymous tip? |
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Definition
| No. An anonymous tip is no more than an unconfirmed rumor. Gather more information. Issue a search warrant only after you are satisfied that adequate probable cause to search exists. |
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Term
| During an inspection can you treat a single soldier differently then another? In otherwords, can you pat down a selected soldier and not the rest? |
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Definition
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Term
| Rights warning under Article 31(b), UCMJ |
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Definition
Right to be informed
Right to Remain Silent
Any Statement Can be Used Against You
Right to Counsel |
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Term
| When to advise a soldier of his/her rights |
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Definition
Official Capacity
requires rights warnings when the questioner is acting in an official capacity.
Questioning
In his or her official capacity, tries to get the soldier to tell him or her something that could be used against the soldier.
Volunteered information is not questioning
Suspect or Accused |
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Term
| Waiver of Rights under Article 31(b), UCMJ |
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Definition
Do you understand your rights?
Do you want a lawyer?
Are you willing to make a statement?
If the answers are YES, NO, YES, the suspect have legally waived his or her rights and the investigator may proceed. |
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Term
| What are the Article 31(b) UCMJ rights warnings? |
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Definition
| The rights warnings under Article 31(b), UCMJ consist of the right to be informed of the nature of the accusation; the right to remain silent; and that anything you say can be used against you in a trial by court-martial. In addition, the soldier also has the right to have a lawyer present during questioning. |
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Term
| May a soldier be required to produce an identification card? |
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Definition
| Yes. A soldier can be required to identify himself and produce his identification card, even though no rights warnings are given |
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Term
| When are Article 31 b, UCMJ warnings required? |
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Definition
| The rights warnings are required whenever a person subject to the UCMJ intends to conduct official questioning of a suspect or accused. |
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Term
| What three questions should be asked after reading the rights warnings to a suspects? |
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Definition
Do you understand your rights?
Do you want a lawyer?
Are you willing to make a statement? |
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Term
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Definition
The commander must have probable cause and the reasonable belief that an offense triable by court-martial has been committed
That the person to be restrained committed it; and restriction is required by the circumstances. |
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Term
| Authority for Restriction Procedures |
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Definition
Restriction is one of four types of pretrial restraint soldiers may be placed under. In descending order of severity the four types of pretrial restraint are:
Withdrawal of pass privileges
Restriction
For enlisted: May be imposed by any commissioned officer
For Officers: Requires a personal order issued by a commander to whose authority the officer is subject.
Arrest
Confinement. |
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Term
| Procedures of Restriction |
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Definition
Must notify soldier:
Enlisted: must be delivered personally by the imposing authority or through his or her representative
Officers: must be notified personally by the imposing commander, or by some other commissioned officer |
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Term
| What must the commander do prior to ordering restriction? |
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Definition
| Prior to ordering restriction of a soldier, the commander must have probable cause , that is, reasonable belief that an offense triable by court-martial has been committed; that the person to be restrained committed it; and restriction is required by the circumstances. |
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Term
| Unlawful Command Influence |
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Definition
| The unlawful assertion of authority that interferes with the fair and just administration of military justice under the UCMJ. |
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Term
| The potential to unlawfully influence the judicial process |
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Definition
Subordinate commanders
Court-martial panel members
Potential witnesses |
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Term
| 10 Commandments of Unlawful Command Influence |
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Definition
The Commander May Not Order a Subordinate to Dispose of a Case in a Certain Way.
The Commander Must Not Have an Inflexible Policy on Disposition or Punishment.
The Commander, If Accuser, May Not Refer the Case
The Commander May Neither Select nor Remove Court Members in Order to Obtain a Particular Result in a Particular Trial
No Outside Pressures May Be Placed on the Judge or Court Members to Arrive at a Particular Decision. |
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Term
| 10 Commandments of Unlawful Command Influence |
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Definition
. Witnesses May Not Be Intimidated or Discouraged From Testifying.
7. The Court Decides Punishment. An Accused May Not Be Punished Before Trial.
8. Recognize that Subordinates and Staff May “Commit” Command Influence That Will Be Attributed to the Commander, Regardless of His Knowledge or Intentions
9. The Commander May Not Have an Inflexible Attitude Towards Clemency.
10. If a Mistake is Made, Raise the Issue Immediately |
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Term
| Can the accused be punished before trial? |
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Definition
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Term
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Definition
| One of the most valuable disciplinary tools available to the commander is the option of imposing nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). |
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Term
| Article 15 Responsibilities |
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Definition
Commanders should inquire about:
1. Whether an offense was committed
2. Whether the soldier was involved, and
The character and military record of the
soldier |
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Term
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Definition
| The general rule is the any “commander” is authorized to administer nonjudicial punishment under Article 15. |
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Term
| Article 15, UCMJ: Two Types |
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Definition
Summarized proceedings may be used if the soldier is an enlisted member, and it is determined that, should punishment be appropriate, it should not exceed extra duty for 14 days, restriction for 14 days, oral reprimand or admonition, or any combination thereof.
Formal proceedings will be used if the soldier alleged to have committed the offense is an officer, or if the punishment, should punishment prove appropriate, might exceed extra duties for 14 days, restriction for 14 days, oral reprimand or admonition, or any combination thereof. |
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Term
| Rights of a soldier under Article 15 |
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Definition
Right to remain silent
Right to counsel (formal proceedings only)
Right to demand trial
Decision period
Right to call witnesses
The Hearing
The Right to Appeal |
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Term
| What are a soldier’s rights under Article 15? |
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Definition
Right to remain silent
Right to counsel (formal proceedings only)
Right to demand trial
48 hour decision period
Right to call witnesses
Right to a hearing
The right to appeal. |
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Term
| DoD Homosexual Conduct Policy |
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Definition
Focus of the policy is Homosexual Conduct, NOT Sexual Orientation
Command will separate soldiers for homosexual:
Statements (e.g. “I am gay”);
Acts; or,
Marriages (actual or attempted)
Note: A soldier who makes a homosexual statement, but who also convinces a separation board that he or she will not engage in homosexual acts, can be retained in the Army |
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Term
| Investigating Homosexual Conduct |
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Definition
Only Commanders Initiate Inquiries
An inquiry must be based on Credible Information
Examples of information that is NOT Credible:
Mere suspicion, opinions or rumors
Reading homosexual publications/Going to “gay bars”
Conduct the inquiry (informal inquiries preferred):
Right against self-incrimination (Article 31, UCMJ)
Cannot ask soldier about his/her sexual orientation
Can question soldier’s supervisory chain-of-command
Can question persons suggested by the soldier |
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Term
| Investigating Homosexual Conduct |
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Definition
“Substantial investigation” requires DA approval
Statements to chaplains, attorney and spouses may be considered confidential
You will violate the Policy IF:
You investigate a soldier for homosexual conduct without a commander’s permission; or,
Accuse a soldier of violating the Policy based on either suspicion w/o credible evidence, rumor, or observing the soldier w/ homosexual materials or in certain locations
Require a soldier to reveal his/her sexual orientation
Initiate a substantial investigation w/o DA approval |
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Term
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Definition
A soldier being harassed should seek out the chain-of-command, a chaplain, the IG, or a legal assistance attorney
A harassed or threatened soldier should not be investigated simply because of the harassment or threat
The DoD Homosexual Conduct Policy does not, however, prohibit investigating a soldier(s) who harasses or threatens another soldier for possible violations of the UCMJ |
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Term
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Definition
Commanders need credible information other than harassment to investigate a soldier for homosexual conduct. HARASSMENT ALONE IS NOT CREDIBLE INFORMATION.
Absent credible information, an investigation into a complaint of either harassment or of a threat must focus on the harassment or threat, ONLY
Credible information discovered during the course of an investigation does NOT stop the requirement to properly dispose of allegations of harassment |
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Term
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Definition
The command cannot make harassment stop if it is not reported
Commanders must adequately address reported instances of harassment
The focus of any investigation into alleged harassment must be on the soldier(s) committing the harassment
When conducting the investigation, a commander can request the assistance of either MPI or CID
Harassed or threatened soldiers must know that their own sexual orientation will not be the subject of the investigation |
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Term
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Definition
Participation is inconsistent with military service
Organizations or activities which advocate racial, gender, ethnic hatred or intolerance
Commanders have widespread authority to prohibit soldiers from participating in these activities |
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Term
| Extremist Organizations Prohibitions |
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Definition
1. Public demonstration or rally
2. Attending in Uniform
3. Fundraising
4. Recruiting or Training
5. Visible Leadership Role
6. Distributing Literature |
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Term
| What is the DoD policy on homosexuality? |
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Definition
The key to understanding DoD policy on homosexual conduct is to remember that it focuses on homosexual conduct
"SAM" stands for Statements-Acts-Marriages. |
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Term
| What are some of the ways to violate the DoD homosexuality policy? |
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Definition
You are not a commander and you initiate an investigation
You accuse a soldier without credible evidence
You require a soldier to reveal their sexual orientation. |
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Term
| What is an extremist organization? |
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Definition
| Extremists organizations and activities advocate racial, gender, or ethnic hatred or intolerance; advocate, create, or engage in illegal discrimination based on race, color, sex, religion, or national origin; or advocate the use of or use force or violence or unlawful means to deprive individuals of their constitutional or legal rights. |
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Term
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Definition
Military law and regulations are designed to create and maintain an environment that encourages personal development and teamwork, while protecting the dignity of individual soldiers.
In recognition of the destructive tendencies of some initiation ceremonies and other customs, Department of Defense (DoD) policy, local general regulations, and other directives now prohibit hazing. Some forms of hazing may also violate one or more articles of the Uniform Code of Military Justice (UCMJ) and warrant a court-martial or punishment under Article 15. |
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Term
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Definition
| Any conduct by a service member regardless of rank, that is cruel, abusive, humiliating, impressive, demeaning or harmful to another service member, regardless of rank. |
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Term
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Definition
Abusive or Harmful Practical Jokes
Branding
Tattooing
Body Painting
“Blood Wings” Ceremonies
Forced Consumption of Alcohol |
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