Military Court Martial: What to Expect and Next Steps

By | February 28, 2017

In the United States military, everyone from soldiers to administrative personnel, technicians, mechanics, and healthcare providers are required to follow a strict code of conduct and performance measures.  When a member of the American military is serving during domestic operations, overseas in combat training, peacekeeping, or in full deployment they are required to serve their country with honor.

Human nature means that everyone (regardless of military training) can have a momentary lapse in judgement that can land them in legal hot water. From small crimes of misconduct to gross negligence, murder and assault, there are many reasons why an individual employed by the military would find themselves in court martial. We’ll explain personal rights, what to expect from the legal process, and why hiring a lawyer who has court martial experience matters.

The Military’s Right to Court Martial Personnel

The Uniform Code of Military Justice (UCMJ) provides three different levels and types of court martial; each type is specialized to the specific severity of the crime or misconduct, and the measure of punitive consequences it can deliver to a military member.

As with the standard United States’ federal court system, all parties must be proven guilty beyond a reasonable doubt before they are charged and punished under military law.  The Military Rules of Evidence is a manual that outlines what is required for court martial and the burden of proof against a defendant. The three types of court martial are:

  • Summary Court Martial

One commissioned officer reviews the case and evidence in a summary court martial. The summary court may only see cases of actively enlisted military personnel. Enlisted members who are above an E-4 level may receive any level of punishment through a summary court martial, except for the death penalty. Hard labor, confinement, and income and salary restrictions are all reasonable for individuals found guilty at the summary court martial level, and the accused does not have the right to be represented by a civilian attorney (but may cross-examine witnesses themselves, or present evidence).

  • Special Court Martial

Reserved for more serious crimes than those at the summary level, a special courts martial may include three or more members of the prosecution and a military judge. The accused are permitted to be represented by a military lawyer at special courts proceedings. Sentencing can include prison internment (for longer than a year), hard labor, salary restrictions, or canceled income for more than a year, or other punishments the panel sees fit to apply (except for the death penalty).

  • General Court Martial

A general court martial is reserved for some of the most heinous and serious crimes committed by active or currently inactive members of the United States military. It is also referred to as “felony court.” All punishments ordered by the five or more member prosecution and judge may be applied, and can include the death penalty in some court martial cases.

What Rights and Privileges Are Suspended During Court Martial Cases?

Frequently during lengthy court martial cases or after successful prosecution, the military staff member will be subject to a demotion. This is often confusing if further legal action or evidence may result in the dishonorable discharge of the military member.  The reason that many court martials order a demotion pending verdict or while the individual is serving a prison term is because it creates a punitive financial punishment.  

By being demoted, the individual will also be paid less while detained in prison, as Article 58 in the UCMJ requires that 66 percent of the accused member’s pay be forfeited if he or she is required to serve time (roughly two-thirds of normal pay is deducted), as it was with the 2004 case of Jeremy Sivits.  

Veteran and active-duty military benefits can be suspended if the individual is found guilty and provided with a dishonorable discharge or a discharge for bad conduct. The three punitive discharges are: 1) Dishonorable Discharge, 2) Bad Conduct Discharge, and 3) Dismissal (similar to bad conduct discharge but reserved for ranked officers only).

Other civil rights limitations may be imposed per the court martial panel, which can include a temporary or lifetime ban on gun ownership and use and the inability to vote in state or federal elections. Any kind of punitive discharge from the United States military can also prohibit an individual from holding public office as mayor, member of municipal council, governor, or senator.

The Advantage of Choosing a Lawyer with Military Law Experience

Many military members who were discharged for bad conduct find that life is difficult without being eligible for many of the benefits that standard veterans can receive. It is important to note that a dishonorable discharge, dismissal, or discharge for bad conduct are all a matter of public record, which can make finding and keeping a civilian job very difficult for former members of the military with an unfavorable military record.

Legal professionals who have specific experience representing military members in court martial are an excellent resource to seek potential discharge upgrades, which may help to reinstate benefits and privileges.


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