Military justice -- supporting the mission of national defense

  • Published
  • By Maj. Nathan Harley Mayenschein
  • 71st Flying Training Wing Staff Judge Advocate

VANCE AIR FORCE BASE, Okla. -- The U.S. military is an exceptional machine. It is the best trained, equipped and prepared military in the world.

One of the many reasons the U.S. military is second to none is the unique construct of the military justice system. Unlike the civilian justice system, which exists solely to enforce the laws of the jurisdiction and punish wrongdoers, our military justice system exists in order to help the military succeed in its mission to defend the nation.

It is structured so those in charge can carry out the orders of their civilian leaders and win wars.

Military justice has evolved over centuries. The roots of the modern courts-martial are traceable to the Roman Army.

As its use spread throughout Europe during the centuries following its creation, the courts-martial system was used by William the Conqueror, the Duke of Normandy, who created a “Court of Chivalry” with powers vested in his high officials.

By 1688, it was firmly rooted in British law that soldiers could be courts-martialed for common-law crimes against civilians.

In the early days of America, a few of the colonies promulgated articles of war based on the British model for their militias.

And on the same day the Second Continental Congress raised an Army in 1775, Gen. George Washington and others sought passage of the “rules and regulations for the government of the Army.”

Over time the articles of war continued to be modified and revised. After World War II, Congress codified the articles of war and other government disciplinary laws into the Uniform Code of Military Justice in 1950.

According to then-Supreme Court Chief Justice Earl Warren, the UCMJ represented “a diligent effort by Congress to insure that military justice is administered in accord with the demands of due process.”

The UCMJ was amended in 1968 and again in 1983 to address and improve numerous procedural protections.

In 1974, the U.S. Supreme Court in “Parker v. Levy” reiterated that the military society is a specialized society within the United States. The court noted that the military has developed laws and traditions of its own.

Highlighting the nature of the specialized society in the context of First Amendment rights, the court decided that, “While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.

“The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.”

While arguably the most famous Supreme Court case recognizing the uniqueness of military society and its interrelated jurisprudence, it was not the first nor will it be the last.

On Dec. 28, 2015, the Department of Defense initiated Military Justice Review Group forwarded the Military Justice Act of 2016 to Congress.

The MJA details numerous reforms to the UCMJ, including specific crimes, jury structure and sentencing procedures. While many of the reforms move the UCMJ structure closer to the civilian justice system, at its core the MJA keeps central the purpose of the military justice system.

And that purpose is to help the military succeed in its mission of defending the nation.