Military Law in a Nutshell
Author:
Hogue, L. Lynn
Edition:
5th
Copyright Date:
2022
14 chapters
have results for military
Chapter 4. Courts-Martial 95 results (showing 5 best matches)
- Few categorization problems have arisen with respect to persons currently serving full-time active military duty. Moreover, while at their service academies cadets and midshipmen are subject to the jurisdiction of military tribunals. The problems of application focus on (1) entry into the military, (2) persons performing part-time military service, and (3) exit from the military.
- General courts-martial consist of a military judge and no fewer than five members, unless the accused requests trial by military judge alone. . In death penalty cases, however, a military judge may not sit alone. Procedures for general courts-martial parallel those for special courts-martial. The only notable differences are that in general courts-martial (1) appointed trial lawyers are always certified military lawyers and (2) military judges are always detailed.
- , a civilian was tried and convicted by a military commission for conspiracy, insurrection, and other crimes relating to an alleged plan to organize a secret military force in Indiana to aid the Confederacy during the Civil War. On petition for habeas corpus, the Supreme Court held that the military commission was without jurisdiction, stating: “This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open . . . and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise connected with the military services.” The important factors which led the Court to provide the full Constitutional safeguards of civilian courts were that Milligan: (1) was a citizen of a Union state not under military siege; (2) could have been tried, convicted, and punished in civilian court for these crimes; and (3) was not connected with the military services. These rationales are the core of...
- The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or any enemy combatant who without uniform comes secretly through the lines for the purposes of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not be entitled to the status of prisoners or war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
- (military jurisdiction over former servicemember invalid), the Supreme Court invalidated the assertion of military jurisdiction over a variety of civilians. After first holding that the trial of civilians accompanying the armed forces abroad during peacetime did not violate an accused’s constitutional right to trial by jury, , the Court subsequently held the trial by court-martial of two military wives accused of murdering their servicemember husbands to be unconstitutional. Justice Black’s plurality opinion rejected any power in the military to try civilians in peacetime because paved the way for additional exclusions of civilians from the ambit of military justice, e.g., (civilian employees, non-capital offenses). This created a jurisdictional gap whereby civilians, military contractors and military dependents, who could not be subjected to military jurisdiction also could not be subject to federal jurisdiction which at that time did not extend extraterritorially and might not...
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Chapter 3. The Military Criminal Justice System 62 results (showing 5 best matches)
- Another resource cited frequently is Army Regulation 27–10, Military Justice (AR 27–10). Military law incorporates regulations of the individual services, and all services publish regulations. These primary sources of law govern the disposition of cases arising in the military. Numerous resources on military law and military justice are available on Westlaw. These include publications of the Department of Defense, the Department of the Army, the Joint Chiefs of Staff, the Air Force, Navy and Marine Corps, the Military Judges’ Benchbook, the Manual for Courts-Martial including subparts such as the Military Rules of Evidence, Rules for Courts-Martial, and the Uniform Code of Military Justice. It also includes published decisions by the military appellate courts in West’s Military Justice Reporter and unpublished decisions as well, and numerous secondary sources of particular relevance such as the Army Lawyer, Air Force Law Review, Naval Law Review, and Military Law Review.
- In many respects, this system parallels state and federal civilian systems for dealing with crimes. Like state and federal law, military law is hierarchical, both substantively and procedurally. Substantively, the United States Constitution is at the apex of the military law system, followed by federal statutory law, regulations promulgated by the President, the secretaries of defense and of the various armed services, and rules of various commanders. Court decisions interpret these laws. Procedurally, the military court system is organized much like civilian courts: trials are conducted by courts-martial with review by two tiers of appellate courts, the first comprised of appellate military judges, the second comprised of civilian appellate judges. Judgments of the highest military court are reviewable by the Supreme Court.
- Courts-martial are the military’s courts of original jurisdiction. The UCMJ provides for appellate review within the military.
- Any person can report a military offense. The report is to be forwarded to an accused’s immediate commander as soon as practicable. . An accused may be subjected to three types of pre-trial restrictions that are unique to military law. In increasing order of severity, they are arrest (sometimes called restriction), apprehension, and confinement.
- A servicemember in confinement may request a military counsel, which must be provided within 72 hours. RCM 305(f). Military magistrates may be appointed to review pretrial confinement. AR 27-10, para. 8-3(a). In addition, with the 2016 amendments, military judges and military magistrates may be allowed to review matters pretrial without waiting for formal referral of charges, pre-referral warns or orders regarding electronic communications, and prereferral matters referred by an appellate court.
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Chapter 7. Military Law: Crimes, Defenses, and Punishments 38 results (showing 5 best matches)
- defines offenses relating to military property of the United States. These include selling or otherwise disposing of military without proper authority, willfully or through neglect damages, destroys or loses military property, or who willfully or through neglect causes the loss, damage, destruction, sale, or wrongful disposition of military property. Military property is a term of art referring to all property real or personal owned, held, or used by one of the armed forces of the United States. Government property should not be conflated with military property. All military property is Government property, but not all government property is military property. The only property that meets the definition of military property is that which meets the definition above.
- Until 1974, most commentators argued that the general articles were constitutionally defective because of vagueness, overbreadth, potential for abuse of prosecutorial discretion, and lack of delineation of punishment. Those who disagreed, including various military courts, relied primarily on court decisions construing the articles, statutory language limiting the possibilities for abuse, a long military custom and history behind the articles, special constitutional standards applicable to military law, and restraint by the military in use of the articles.
- Much of the majority opinion rested on differences between military and civilian law and the need for immediate obedience and discipline in the military: “Just as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Additionally, the opinion cited several factors narrowing the broad language of the general articles. Furthermore, the court concluded that numerous examples in the MCM have imparted “accepted meaning to the seemingly imprecise standards of Articles 133 and 134” and that: “[e]ach of these articles has been construed by the [C.M.A.] or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope. . . .”
- In addition to disparities based on rank, the military is also addressing racial disparities in the military justice system. Years of data show that white servicemembers are subjected to discipline less frequently than servicemembers of color. Congress included a provision in the 2020 National Defense Authorization Act that would require tracking of
- defines the offense of willfully disobeying a superior commissioned officer. The order to which the accused is subject must require performance of a military act and must be lawful. When contested, the lawfulness of an order is ultimately a question of law for a military judge. The commissioned officer issuing the order must have authority to issue the order. Military duty includes all activities reasonably necessary to accomplish a military mission or to safeguard or promote the morale, discipline, and usefulness of servicemembers subject to the officer’s command and be directly connected with the good order and discipline of the Service. If committed during time of war, it may be punishable by death.
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Preface 2 results
- Military Law in a Nutshell
- The primary audience for this Nutshell is law students taking a specialized course on military law and justice as well as JAG officers and other practicing lawyers seeking a succinct overview of military law, cadets at military academies and in college R.O.T.C. programs. It should also serve the needs of news media reporters and bloggers.
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Chapter 1. A Brief History of American Military Law 32 results (showing 5 best matches)
- The size of the military shrank significantly in the period between the two world wars and little attention was paid to military justice, but World War II brought with it a significant expansion in manpower and strains on the military justice system. Jonathan Lurie in
- Strangely, little changed in military justice between the Revolutionary War and World War I; those who faced the Kaiser did so under a military justice system that had governed those who fought the Hessians. Military justice was immune to the improvements, both substantive and procedural, in the civilian justice system which could have served as models. Problems persisted because during wartime, the country was too preoccupied to address deficiencies in military justice, and during peacetime there was no felt need.
- Two nineteenth-century U.S. Supreme Court cases well illustrate the tension between treating military law as an aspect of command or subjecting the military justice system to the rule of law.
- Court’s emphasis on the separateness of the military justice system, affirms the subordination of the military command to the rule of law.
- Military justice reform for the Army came in two steps after World War II. The first step, the Elston Act of 1948, accommodated an on-going struggle between reformers and those who preferred the status quo by revising the Articles of War for the Army only (although the Air Force complied with it as well). The second step was the creation of one code of military justice to govern all branches of the service, a step realized with enactment of the Uniform Code of Military Justice in 1950.
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Chapter 6. Military Criminal Justice System Constitutional Safeguards 21 results (showing 5 best matches)
- allows the issuance of an “authorization to search” by an impartial commander or other officer in a position of command or by a military judge or magistrate. The search authorization, which must be based upon probable cause, grants permission to search a person or area for specified property or evidence or for a specific person. , (f). A search authorization may be issued for a search of persons subject to military law, military property, persons and property within military control, and non-military property in a foreign country.
- These broad exceptions to civilian “lawful search” principles are based on the fact that military missions and expectations of military personnel may make otherwise unjustified searches reasonable. This explanation is buttressed by the limitation of these searches to military property and persons. “An otherwise impartial authorizing official does not lose that character” merely because that official is present at a search or available to those seeking the issuance of an authorization or because the official previously authorized investigative activities.
- (1953) (“The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.”) (plurality opinion). The only explicit textual difference between civilian and military criminal defendants’ rights in the Bill of Rights is the Fifth Amendment’s exception of the requirement for grand jury indictment “in cases arising in the land or naval forces or in the Militia when in actual service in time of War or public danger. . . .” . Yet the scope of constitutional protections for servicemembers has never been fully defined by the Supreme Court. However, military appellate courts have held that servicemembers enjoy extensive Bill of Rights protections: “It is now settled that the protections of . . . the entire Bill of Rights, are applicable to the men and women serving in the military services of the United States unless expressly or by necessary implication they are made inapplicable.”
- (neutrality and detachment of a commander). The warrant must be based upon probable cause and be limited at least as to the place to be searched and the things to be seized. However, military officials generally do not obtain civilian search warrants because military law also recognizes as reasonable a search conducted pursuant to a military commander’s properly granted authority.
- Military law distinguishes between “inspections” and “searches.” Under , inspections are lawful only if (1) they are not conducted primarily to obtain evidence to use in a court-martial or disciplinary proceeding and (2) they are ordered and conducted primarily to ensure the security, fitness, or good order and discipline of the military unit. In , the court said that the “traditional military inspection which looks at the overall fitness of a unit to perform its military mission is a permissible deviation from what may be tolerated in civilian society generally.” However, “shakedown inspections” instituted “in search specifically of criminal goods or evidence is not such a permissible intrusion into a person’s reasonable expectation of privacy, even in the military setting.” Thus, the commander who tailors a barracks or field area inspection for legitimate military reasons can search entire group without probable cause. But, a commander who expressly searches for criminal evidence...
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Chapter 8. Rights of Servicemembers 94 results (showing 5 best matches)
- [O]ur evolving jurisprudence has created a zone of protection for military actors, immunizing actions and decisions which involved military authority from scrutiny by civilian courts. It is our conclusion, however, that this zone was never intended to protect the personal acts of an individual when those acts in no way implicate the function or authority of the military.
- just because those involved were wearing military uniforms at the time of the act.
- doctrine generally extends to “suits between individual members of the military, recognizing an ‘intramilitary immunity’ from suits based on injuries sustained incident to service.” (individual acts by sergeants who broke into an Air Force Major’s office, took personal papers and disseminated them to other military personnel with the intent to injure her reputation and career were not “incident to military service” and thus not protected by the doctrine although military superiors and the federal government were protected).
- ] reiterated the point that differences between the military community and the civilian community result in military law that “regulate[s] aspects of the conduct of members of the military which in the civilian sphere are left unregulated.” [citation omitted] But the Supreme Court upheld the narrowing construction developed in military law through the precedents of this Court and limitations within the
- This libertarian, privacy culture, is in many respects at odds with military culture. The Supreme Court has cautioned that, “The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside of it.” . Lower courts, both civilian and military, have echoed similar views. (“The soldier cannot reasonably expect the Army barracks to be a sanctuary like his civilian home.”). Military culture subordinates the interests of the individual soldier, sailor, marine or airman to those of the mission and the units that will carry it out. Base and installation commanders permissibly promulgate numerous regulations that foster such values as orderliness, civility, and uniformity with the objective of fostering the overall fitness of a unit to perform its military mission that in turn result in a communal environment vastly different from that in the civilian world.
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Chapter 5. Review of Courts-Martial 19 results (showing 5 best matches)
- Both civilian and military appellate review processes are designed to correct errors in individual cases and establish a body of law for application to subsequent cases. However, the military review system is more protective of the rights of convicted persons than state or federal review systems because several military reviews are automatic. Moreover, some military reviews correct factual errors and exercise clemency as well as reviewing questions of law and “clearly erroneous” factual findings. Appointment of new counsel at government expense to handle appeals also encourages a thorough and detached review of the court-martial trial process. Finally, defense counsel is mandatory when requested by the accused, when the United States is represented by counsel, or when the Judge Advocate General (TJAG) has sent the case to the C.A.A.F.
- Finally, considerations of comity will preclude civilian courts from granting injunctive relief for an accused while a court-martial or the military appellate processes are in progress. The comity doctrine of Court noted that this deficiency was supplied by equally compelling factors: the separateness of military and civilian societies and the mission of the military to fight or be ready to fight wars. Congress, noted the Court, attempted to balance military necessities and demands for fairness by placing a court comprised of civilian judges with lengthy tenure at the apex of the military court hierarchy.
- Because a court-martial is not an Art. III court, critics have continued to question the judicial independence of military judges, e.g.,
- , a plurality of the Court found it appropriate to review whether the military courts had “dealt fully and fairly with an allegation raised” in the habeas corpus petition. It was inappropriate, said the plurality, for civilian courts to reexamine and weigh the evidence in a court-martial. In dicta, the Court noted that “in military habeas corpus the inquiry . . . has always been more narrow than in civil cases” and that “this court has played no role in [military law’s] development; we have exerted no supervisory power over the courts which enforce it.” In , various concurring or dissenting members of the Court argued (1) that the federal courts have only the more limited function of seeing whether the military court had jurisdiction, (2) that the case should be reargued; and (3) that federal courts should review the decisions of courts-martial for constitutional errors like the decisions of federal agencies.
- Second, what is the scope of civilian court review over military court decisions? As one court noted: “The Supreme Court has never clarified the [Burns] standard of full and fair consideration, and it has meant many things to many courts.” . Some civilian courts have been satisfied to review only whether the military courts considered the petitioner’s allegations, while others have stressed the “fullness” and “fairness” of the military court deliberations over the allegations. To date, this divergence of opinion has not been resolved by the Supreme Court.
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Chapter 2. Enlistment, Discharge, and Separation 66 results (showing 5 best matches)
- Subject to the military justice system, which means, among other things, that I may be tried by military courts-martial.
- Further guidance in this area is provided in the “Memorandum from Under Secretary of Defense to Secretaries of the Military Departments, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” (25 Aug. 2017) (
- Like an enlisted member of the armed services, a commissioned officer has no constitutional right to remain in the service and may be separated from the military through one of several methods. Some merely terminate the officer’s status in a particular military component, while others sever all connection with the military. Administrative separations of officers are much less common than enlisted separations. Ordinarily, if an officer’s misconduct is serious enough to warrant an administrative discharge, it will be grave enough to warrant court-martial.
- An accused must first exhaust all military appeals before seeking relief in federal court. (“[A] military servicemember must exhaust all intra-military remedies before applying for a writ of habeas corpus seeking discharge from the military under the terms of his or her enlistment contract, unless the application falls within a limited number of exceptions to the exhaustion principle.”).
- Whenever a servicemember’s record reflects acceptable military service and performance of duty, an honorable discharge is issued. An honorable discharge signifies adequate military performance. It is not a mark of distinction or meritorious service, which are generally recognized through medals and awards. An honorable discharge entitles the recipient to both tangible and intangible benefits such as veteran’s benefits and favorable consideration by civilian employers.
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- Publication Date: July 8th, 2022
- ISBN: 9781642428001
- Subject: Military Law
- Series: Nutshells
- Type: Overviews
- Description: The fifth edition of Military Law in a Nutshell by L. Lynn Hogue has been thoroughly revised and updated. It is intended as an authoritative resource for those seeking a succinct summary of military law and justice. It is designed for use by practicing lawyers seeking a succinct overview of military law, cadets at military academies and students in college R.O.T.C. programs, and members of the Army, Navy, Air Force, or Coast Guard Judge Advocate General's Corps. It should meet the needs of news media reporters and bloggers requiring information and background on military law and justice. Members of the armed services faced with non-judicial punishment, administrative discharge or more serious actions should also find it helpful. New to this edition is a detailed "Guide to Seeking Justice for Former Servicemembers with 'Bad Paper' Discharges." Every effort has been made to account for changes in the Uniform Code of Military Justice (UCMJ).