The military operates under the Uniform Code of Military Justice (UCMJ), setting service members apart from civilians. If you are accused of a crime, your case might proceed to a court-martial, the military’s criminal court of law.

There are three primary types of court-martial: summary, special, and general. This article delves into the medium-level military court that deals with allegations of moderate severity. Understanding how this process works can help you know what to expect if you’ve been accused of a crime under the UCMJ.

What is a Special Court-Martial?

A special court-martial is a federal military court designed for trying members of the Armed Forces accused of committing intermediate offenses. It is less formal than a general court-martial, which handles the most egregious crimes, but more serious than a summary court-martial, which deals with minor incidents.

This type of court can adjudicate a wide range of military crimes. A few examples include:

• Absence without leave
• Insubordinate conduct
• Failure to obey an order or regulation
• Assault
• Minor theft

Is an Article 32 Preliminary Hearing Required?

An Article 32 hearing is primarily reserved for general courts-martial. It acts as a pretrial investigation to determine if there is enough evidence to merit formal court proceedings. This hearing ensures that charges are not brought frivolously or without substantial evidence. This type of hearing is not required for special or summary courts-martial, allowing those processes to proceed more quickly and less formally.

The Rights of the Accused

Service members facing a special court-martial have specific rights to ensure a fair and just process. These include:

• The right to legal representation: The accused may choose to be represented by military defense counsel provided at no cost, or they may hire a private attorney for more specialized defense.
• The right to remain silent: The military’s version of Miranda rights, found in Article 31 of the UCMJ, protects against self-incrimination. The accused can refuse to answer questions from law enforcement or command at any point in the investigation process.
• Protection against unreasonable search and seizure: This right ensures the accused’s personal privacy is respected, requiring an authorized search warrant before their home or belongings can be searched or seized.
• The right to a fair trial: This guarantees all legal proceedings are conducted according to military law and constitutional protections, ensuring justice and fairness.

Composition of a Special Court-Martial

A special court-martial is held before a military judge who presides over the proceedings. In addition to the judge, a panel of at least three service members may serve as a jury, though the accused can also choose to be tried by the judge alone. The selection process for these panel members varies by military branch.

If the accused opts for a panel, this group of people is responsible for listening to the evidence presented, deliberating on the case, and determining the guilt or innocence of the accused. Other people present at a special court-martial may include the prosecutor, known as the trial counsel, and the defense counsel.

Maximum Punishments Imposed by a Special Court-Martial

The UCMJ currently requires a three-fourths majority verdict for a conviction and sentencing to occur. This differs from civilian criminal trials, which consider a unanimous verdict the “gold standard of justice.” There are talks of amending the National Defense Authorization Act (NDAA) to change this rule, but for now, the three-fourths majority verdict stands.

A conviction at the special-court martial level is akin to a misdemeanor in a civilian criminal court. A range of punishments may be doled out to those found guilty, with limits set to reflect the intermediate level of offenses tried in a special court-martial. These can include:

• Confinement: The court can sentence the accused to imprisonment for up to one year. This serves as a crime deterrent and means of rehabilitation.
• Forfeiture of pay: The court can order the forfeiture of two-thirds of the accused’s monthly pay for up to a year.
• Reduction in rank: Enlisted members may be demoted to the lowest military rank of E-1, setting their career back years.
• Bad conduct discharge: For enlisted personnel, a bad conduct discharge is a possible outcome, affecting future employment opportunities and veteran benefits.

Clemency and Appeals

Following a special court-martial conviction, the accused may seek clemency from the convening authority (CA), the senior officer who convened the court-martial. This person has the power to reduce or set aside convictions and sentences, though recent changes in military law severely limit the degree of post-trial clemency available.

If clemency is not granted, the accused can appeal the conviction to their service branch’s Court of Criminal Appeals. In some cases, appeals may go as high as the US Supreme Court. This process ensures the accused has multiple opportunities to challenge their conviction or sentence, safeguarding their rights and ensuring the fairness of the military justice system.

• FAQS ABOUT SPECIAL COURT MARTIAL

WHO IS THE CONVENING AUTHORITY IN A SPECIAL COURT MARTIAL?

Under the UCMJ, the “convening authority” is the person who has the power and duty to convene a court martial if a service member is suspected of committing a crime. With this authority also comes the right to prosecute, select panel members, and approve the verdict once the court martial is complete. The convening authority is usually an admiral, multi-star general, or first FLAG officer at the top of the accused person’s chain of command.

HOW LONG DOES A SPECIAL COURT MARTIAL LAST?

The time between receiving your notification of charges and completing the special court martial is usually about three to six months. The process may take longer than this if your lawyer recommends using a military panel (the equivalent of a jury) in place of a military judge alone.

WHAT HAPPENS IF YOU ARE COURT MARTIALED?

If you have been accused of a crime in the military, you should begin planning your court martial strategy right away. Here’s what happens leading up to the trial:

• Receive notification of your charges: If you are an active duty member, you will be notified by your immediate commanding officer. Otherwise, you will receive a letter in the mail detailing the charges against you.
• Obtain legal representation: In a special court martial, you have the right to free legal counsel. However, hiring a military lawyer is the best choice for crafting a solid defense. To ensure the best possible outcome in your case, always be completely honest and cooperative with your attorney, even if it implicates a senior or commanding officer.
• Decide how you will plea: You have the right to plead guilty or not guilty. Your attorney may offer their opinion based on the evidence, but this decision is ultimately up to you. Only in rare cases are you better off pleading guilty in the military, though some plea bargains may prove advantageous, as discussed below.
• Consider an Administrative Discharge: Known as a Chapter 10 Discharge in the Army and a Chapter 4 Discharge in the Air Force, this is a plea bargain in which you are discharged in lieu of facing a court martial. Discuss this possibility with your military lawyer.
• Discuss a possible pre-trial agreement: This is a plea bargain in which your attorney negotiates with the prosecution to dismiss some or all of the charges in exchange for accepting an agreed-upon punishment. Discuss this possibility with your military lawyer.
• Select a forum: If you decide to move forward with the court martial, you may be tried by a military judge or a panel consisting of no less than four members—it’s your choice. Most of the time, you should elect to have a panel hear your case so more people can vote on the verdict and sentence. If the accused is an active service member, they may request that the panel consist of at least one enlisted member, though this member cannot come from the accused’s unit or be junior to the accused.
• Decide if you will testify: You have the right not to testify and cannot be compelled to do so, even by a superior officer. If you do testify, you will be subject to cross-examination. Discuss with your military lawyer which strategy you should pursue.

HOW DO I INCREASE THE CHANCE OF AN AGREEABLE OUTCOME IN A SPECIAL COURT MARTIAL?

With all the preparations complete, the day of your special court martial will soon arrive. In all, the trial may last two to six days. Here’s how to present yourself in the best possible light as you undergo a special court martial:

• Dress professionally: Are you an active-duty service member? If so, wear your Class A uniform. Otherwise, simply dress neatly and conservatively.
• Arrive early: If your case is called, and you are not present, the court could issue a warrant for your arrest. Plan to arrive early to avoid this possibility.
• Behave appropriately: Expect a highly formal courtroom setting where no food, drinks, tobacco, or chewing gum is allowed. Turn off your mobile devices, avoid reacting inappropriately to testimony during the trial, and refer to the judge as “Your Honor.”
• Be involved in your defense: Communicate with your legal representative regularly and provide anything your attorney asks for, including documentation, evidence, and anything else pertinent to your case.
• Arrange good character witnesses: If you have any fellow service members who can vouch for your honesty and integrity, ask them to testify on your behalf. When pleading not guilty, a character witness can be your single biggest advantage, especially if the evidence is stacked against you.
• Consider appealing: The accused has the right to appeal a conviction and sentence if it’s believed that the military judge made an error of the law. Appealing cases decided under the UCMJ is precise and complicated, so you shouldn’t begin the process without the assistance of an experienced military attorney.

WHAT PUNISHMENTS CAN BE DOLED OUT IN A SPECIAL COURT MARTIAL?

At the intermediate level, sentences from a special court martial land somewhere between those of a summary court martial and general court martial. Punishments may include:

• Hard labor without confinement for up to three months
• Forfeiture of two-thirds pay per month for up to one year*
• Reduction to the lowest enlisted pay grade (for enlisted members only)
• Forced Bad Conduct Discharge (for enlisted members only, doesn’t apply to officers)*
• Confinement for up to one year (for enlisted members only)*

*Be aware that there is a new type of special court martial colloquially referred to as a “six-month special.” This limits confinement time and forfeiture of pay to six months and doesn’t allow punitive discharge.

In addition to these explicit punishments, being found guilty of a crime in a special court martial could set your military career back years. Plus, anything other than an honorable discharge could deprive you of VA benefits, including healthcare, disability compensation, educational assistance, and more.

Hiring an Attorney

Due to the complexity of navigating a special court-martial, hiring an experienced military defense attorney is vital for protecting your rights and developing a robust defense strategy. While military defense counsel is provided free of charge, a civilian attorney specializing in military law offers additional expertise and perspective. This choice could influence the case’s outcome, making it essential to select an attorney with a proven track record in military defense.

Joseph L. Jordan, Attorney at Law, is ready to represent you. Our legal team is backed by a track record of success defending service members from all branches of the military. With over a decade of experience and unique insights as a former Army JAG officer, Mr. Jordan is well-equipped to handle complex cases. If you’re facing a special court-martial, contact us toll-free at 800-580-8034 or 254-853-0064 to speak directly with Mr. Jordan about your case.