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In-depth discussion and overview of the military justice system:

Basic Goals of Military Justice System

A basic objective of any criminal law system is to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately with their crimes, and prevent and deter future crime. Military justice shares these objectives in part, but also serves to enhance good order and discipline within the military.

Separate System

A question that has been debated often, especially whenever there is a high profile case that captures the public’s attention, is why do we have a separate military justice system? Often, what comes out of those debates is that fact that “the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733 (1974). As the U.S. Supreme Court noted in Parker v. Levy, the “differences between the military and civilian communities result from the fact that ‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’” Id. at 743, citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). Recognizing that the military is a “separate society” the reasons most often provided for a separate military justice system are based upon the following rationale:

  • The worldwide deployment of military personnel;
  • The need for instant mobility of personnel;
  • The need for speedy trial to avoid loss of witnesses due to combat effects and needs;
  • The peculiar nature of military life, with the attendant stress of combat or preparation for combat; and
  • The need for disciplined personnel. See FRANCIS A GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE, Third Edition, v (2007).

Good Order and Discipline

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Of all the reasons provided for a separate system, perhaps the most persuasive is our need for disciplined personnel. Members of the Armed Forces are subject to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. United States v. Watson, 69 M.J. 415 (2011). In the military justice system, discipline can be viewed as being as important as individual liberty interests. The Preamble to the 2008 MCM recognizes the importance of discipline as part of military justice.

It states: “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” Manual for Courts-Martial, Preamble, Paragraph 3, (2008). Given the need for discipline in the military, military justice is under the overall control of the commander.

Military Law Sexual Resources:

Types of Courts Martial in the Military Justice System

Advice Concerning Requirements to Register as a Military Sex Offender

Rape in the Military – Article 120 UCMJ

Military Justice System – Overview

MRE 412: Military Rape Shield Law

Investigation of Military Offenses

Court Martial Jurisdiction

Commander’s Discretion

Commanders have a wide variety of options available to them to deal with disciplinary problems. These options include administrative actions ranging from an informal counseling, extra training, withdrawal or limitation of privileges, and administrative separations, to punitive options such as punishment under Article 15, UCMJ, and trial by court-martial.

Prosecutorial Discretion

Prosecutorial discretion lies with the commander and not the judge advocate. This truth is a foreign concept to those familiar with civilian practice where prosecutorial discretion is entrusted to an attorney. In the military, it is the commander, not the Staff Judge Advocate that decides whether a case will be resolved administratively or referred to a court-martial. If the case is referred to a court-martial, it is the commander that decides what the charges will be. Although the commander receives advice and administrative support from the Staff Judge Advocate, it is the commander that ultimately must make the decision whether prosecution is warranted.

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