Possible Punishments at a Military Court-Martial
Below is a breakdown of the punishments allowed at a military court-martial pursuant to the manual for courts-martial.
Reprimand. RCM 1003(b)(1).
A court-martial shall not specify the terms or wording of a reprimand. A reprimand, if approved, shall be issued, in writing, by the convening authority [CA]. The reprimand, when issued, is placed in the CA’s action.
Forfeiture of pay and allowances. RCM 1003(b)(2).
At a general court-martial (GCM), the court may adjudge forfeiture of ALL pay and allowances (a.k.a., “total forfeitures”). At a special court-martial (SPCM), the court may adjudge forfeiture of 2/3 pay only. Allowances at a special court-martial are NOT subject to forfeiture.
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Automatic Forfeitures (Art. 58b, UCMJ).
Confined soldiers from GCMs shall, subject to conditions below, forfeit all pay and allowances due them during confinement or parole. Soldiers confined as a result of SPCMs, subject to conditions below, shall forfeit 2/3 pay during confinement. Sentences covered are those which include:
- Confinement of MORE THAN 6 months, or death, or
- ANY confinement AND a punitive discharge.
Art. 58b, UCMJ, waiver.
If an accused has dependents, the convening authority may waive any/all AUTOMATIC (i.e., Art. 58b, UCMJ) forfeitures for a period not to exceed six (6) months, with money waived to be paid to the dependents of the accused. Adjudged forfeitures may NOT be waived.
Effective date of forfeitures (Art. 57(a), UCMJ).
ANY forfeiture of pay or allowances (or adjudged reduction) in a military court-martial sentence takes effect on the earlier of:
- Fourteen (14) days after sentencing, or
- The date on which the CA approves the sentence.
Deferment of forfeitures.
On application of accused, CA may defer forfeiture (and reduction and confinement) until approval of sentence; but CA may rescind such deferral at any time. Deferment ceases automatically at action, unless sooner rescinded. Rescission prior to action entitles accused to minimal due process. See RCM 1101(c).
US v. Dewald, 39 M.J. 901 (A.C.M.R. 1994). Forfeitures may not exceed two-thirds pay per month during periods of a sentence when an accused is not in confinement. Accordingly, during periods that adjudged confinement is suspended, forfeitures are limited to two-thirds pay per month. See RCM 1107(d)(2), discussion.
Unless total forfeitures are adjudged (i.e., forfeiture of ALL pay and allowances), partial forfeitures MUST be stated in whole dollar amounts for a specific number of months and the number of months the forfeitures will last. RCM 1003(b)(2).
Forfeitures are calculated at reduced pay grade WHETHER suspended or not.
US v. Stewart, 62 M.J. 291 (2006). Where a sentence to forfeiture of all pay and allowances is adjudged, such sentence shall run until such time as the servicemember is discharged or returns to a duty status, whichever comes first, unless the sentencing authority expressly provides for partial forfeitures post-confinement.
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Fine. RCM 1003(b)(3).
- A special court-martial is not precluded from imposing a sentence that includes both a fine and forfeitures as long as the combined fine and forfeitures do not exceed the maximum two-thirds forfeitures that can be adjudged at a special court-martial. A 2002 amendment to RCM 1003(b)(3) reflects this holding. US v. Tualla, 52 M.J. 228 (2000).
- Other than limits on cruel and unusual punishment, there are no limits on the amount of fine. Provision that fines are “normally for unjust enrichment” is directory rather than mandatory. Unless there is some evidence the accused was aware that a fine could be imposed, a fine cannot be imposed in a guilty plea case. US v. Williams, 18 M.J. 186 (C.M.A. 1984).
- A panel may sentence the accused to a fine, even if the military judge did not mention it in oral instructions – The military judge’s failure to mention fine in oral instructions did not preclude a military court-martial from imposing fine, where sentence worksheet submitted to court members with agreement of counsel addressed the issue. US v. Motsinger, 34 M.J. 255 (C.M.A. 1992).
- Fine is due on the date that the Convening Authority takes action on the sentence – Accused found guilty of various charges and was sentenced to a reprimand, 5 years, dismissal, and $400,000 fine. The military judge included a contingent confinement provision that if the fine was not paid, Phillips would serve an additional 5 year confinement. The Convening Authority reduced the fine to $300,000 and suspended for 24 months execution of the sentence adjudging a fine in excess of $200,000. Upon Phillips failure to pay the fine, the commanding general ordered a fine enforcement hearing. After the hearing, Phillips was ordered to serve an additional 5 years for willful failure to pay the unsuspended fine. CAAF held that the CG who executed the contingent confinement provision was authorized to do so and he was not required to consider alternatives to contingent confinement after concluding that Phillips was not indigent. US v. Phillips, 64 M.J. 410 (2007).
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Reduction in grade. RCM 1003(b)(4); UCMJ art. 58a.
Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a military court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes
- A dishonorable or bad conduct discharge;
- Confinement; or
- Hard labor without confinement, reduces that member to pay grade E-1.
In the Army, the automatic reduction to pay grade E-1 mandated by Article 58a applies only to enlisted soldiers with an approved sentence, whether or not suspended, that includes EITHER a punitive discharge OR confinement of more than 180 days (if adjudged in days) or six months (if adjudged in months). AR 27- 10, para. 5-28e.
The Navy and Marine Corps’ implementing regulation provides for automatic reduction to the grade of E-1 when sentence, whether suspended or not, includes EITHER a punitive discharge OR confinement in excess of ninety days or three months. JAGMAN, 0152c(1).
The Air Force requires, as part of the approved sentence, a reduction AND either confinement, a punitive discharge, or hard labor without confinement before an airman is “automatically reduced” HOWEVER only reduced to the grade approved as part of the adjudged sentence (i.e., there is no automatic reduction to the grade of E-1). AFI 151-201, para. 9.10 (26 Nov 03).
The coast Guard does NOT permit an automatic reduction. Military Justice Manual, Commandant Instruction M5810.1D, Chapter 4, Para. 4.E.1.
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- Punishment to reduction in rank, when unlawfully imposed, warrants sentence relief. The accused’s court- martial sentence included reduction to the grade of E-1, but was subsequently set aside. Pending rehearing on sentence, the accused’s chain of command ordered that he wear E-1 rank on his uniform and that he get a new identification card showing his grade as E-1. The court awarded the accused twenty months sentence credit, equal to the period of time he was ordered to wear reduced rank pending a rehearing. US v. Combs, 47 M.J. 330 (1997).
- The rank of retiree, in Army, may not be reduced by military court-martial, or by operation of law. US v. Sloan, 35 M.J. 4 (C.M.A. 1992).
Restriction. RCM 1003(b)(5).
No more than 2 months; confinement and restriction may be adjudged in the same case but together may not exceed maximum authorized confinement (where 1 month confinement equals 2 months restriction).
Hard labor without confinement. RCM 1003(b)(6).
- No more than 3 months.
- Confinement and hard labor may be adjudged in the same case but together may not exceed maximum authorized confinement (where 1 month confinement equals 1.5 months hard labor w/o confinement)
- Enlisted members only.
- Court-martial does not prescribe the hard labor to be performed.
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Confinement. RCM 1003(b)(7) and Punitive Separation. RCM 1003(b)(8).
- Applies to commissioned officers and warrant officers who have been commissioned. US v. Carbo, 37 M.J. 523 (A.C.M.R. 1993).
- DD is available to non-commissioned warrant officers or enlisted.
- BCD is available only to enlisted.
- Death. RCM 1003(b)(9).
- Death may be adjudged in accordance with RCM 1004 (mechanics, aggravating factors, votes). Loving v. US, 517 U.S. 748 (1996).
- Specifically authorized for thirteen different offenses, including aiding the enemy, espionage, murder, and rape.
- Requires the concurrence of all the members as to:
- findings on the merits of capital offense,
- the existence of at least one aggravating factor under RCM 1004(c),
- extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including aggravating factors, and
- sentence of death.
Maximum Punishment at a Military Court-Martial
Generally – lesser of jurisdiction of court or punishment in Part IV.
Offenses not listed in the Table of Maximum Punishments.
Article 133 punishment. US v. Hart, 32 M.J. 101 (C.M.A. 1991).
In mega-article 133 specification, the maximum possible punishment is the largest maximum punishment for any offense included in the mega-specification.
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Prior NJP for same offense.
- Accused must be given credit for prior Article 15 punishment for same offense: day for day, dollar for dollar, and stripe for stripe. US v. Pierce, 27 M.J. 367 (C.M.A. 1989).
- When accused has received NJP for same offense, the military judge may, on defense request, give Pierce credit, obviating need for CA to do so. US v. Edwards, 42 M.J. 381 (1995).
- When military judge is the sentencing authority, he is to announce the sentence and then state on the record the specific credit given for prior nonjudicial punishment in arriving at the sentence. US v. Flynn, 39 M.J. 774 (A.C.M.R. 1994).
- Accused tested positive for THC, causing commander to vacate suspended Art. 15 punishment and also to prefer military court-martial charges. Defense counsel requested instruction to panel that they must consider punishment already imposed by virtue of vacation action taken by commander with regard to suspended Art. 15 punishment. The court noted, “vacation of a suspension of nonjudicial punishment is not itself nonjudicial punishment.” US v. Zamberlan, 45 M.J. 491 (1997).
Prior board proceedings.
The Accused entitled to credit for consequences of administrative board proceedings arising from same misconduct that is the subject of the military court-martial. US v. Blocker, 30 M.J. 1152 (A.C.M.R. 1990).