Gonzalez & Waddington – Attorneys at Law

Contact a Military Defense Lawyer to Discuss Your rights and Options

Military commanders can send enlisted service members to a Summary Courts-Martial with their consent in a fast-track procedure. There is no prosecutor and no jury. The accused may consult with a military lawyer before the Summary Courts-Martial, but the lawyer does not represent the accused before the court-martial. A summary court is a court-martial with limited jurisdiction and limited powers to prosecute. See Middendorf v. Henry, 425 U.S. 25, 48 N.19 (1976). United States v. Booker, 5 MJ 238, 239 CMA.

Due to the nature of the proceedings, the summary court-martial will not be considered a prosecution within the meaning of the Fifth Amendment or the Due Process Clause. Instead, it is a disciplinary process. As part of the 2016 Military Justice Act, Congress has made it clear that a guilty verdict in a fast-track trial does not constitute a criminal conviction. A fast-track court is a non-criminal forum.

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A conviction in a Summary Courts-Martial does not constitute a criminal conviction.

The allowable punishments are based on the rank of the accused.

Advising the Summary Court-Martial accused. Sometimes the Summary Court-Martial is part of an offer to plead guilty or the next step after an Article 15 turn-down. Routinely, the offer to plead guilty also contains a waiver of any right to an administrative separation board and is commonly referred to as a “Summary/OTH” or a “Supercharge.”

This idea can originate with the prosecution or with the defense. For the government, it is a quick procedure that may result in some jail time and an OTH discharge. Commands tend to like this arrangement because it is quick and has the potential for some jail time.

Military Defense Lawyer Perspective

From the defense perspective, your accused avoids a federal conviction, avoids the possibility of a bad-conduct discharge, and receives lighter punishment. Where there is a deal for the accused to plead guilty at the Summary Court-Martial, military defense lawyers should prepare the accused for the providence inquiry with the Summary Court-Martial Officer. Additionally, military defense lawyers should prepare the accused to present evidence in extenuation or mitigation during the sentencing portion of the Summary Court-Martial.

Contested Summary Court-Martial

In a contested Summary Court-Martial, military defense lawyers need to work closely with the accused to prepare her to defend herself. The accused must understand that the rules of evidence apply, including the laws prohibiting hearsay and requiring a proper foundation for authentication of evidence.

In addition to presenting evidence of defense, mitigation and extenuation, they may also file motions, including RCM 917. Wherever possible, defense lawyers will assist the accused in preparing the appropriate motions to present the facts and verdict of the case, prepare cross-examination witnesses, and present convincing objections.

Preparing the Accused for a Summary Court-Martial

Having prepared this for the accused can tip the balance in favor of the accused and acquittal. Consider sending a TDS or paralegal to the fast track court to assist your defendant in all matters.

If the defendant agrees to a fast-track trial, the military defense attorney will advise the defendant to complete Form 5111 (Summary Court-Martial Rights, Notification, and Waiver Statement) before trial. The accused is entitled to a copy of this form.

The summary court-martial transcript of the trial will be prepared during the trial. If the accused appeals within one year, the sentence will be announced. The Prosecutor must submit a request for clemency to the convening authority within seven days of the pronouncement of the sentence.

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