Military justice – a tradition of change

  • Published
  • By Lt. Col. Theodore Richard
  • 71st Flying Training Wing Staff Judge Advocate
VANCE AIR FORCE BASE, Okla. --  The National Defense Authorization Act for fiscal year 2014 brings with it several substantive changes to the Uniform Code of Military Justice.

There are some key changes in the act. It eliminations the five-year statute of limitation for rape and sexual assault cases. Victims have the option to elect out of testifying during Article 32 investigations into probable cause. And limitations are established on the power of convening authorities to set aside court martial findings, removing the authority to set aside findings of guilt in rape and sexual assault cases altogether.

Changes to our military justice rules are nothing new.

As a country, we inherited the British justice system as adopted by the colonies at the start of the Revolution. The Continental Congress adopted formal rules, known as the "Articles of War" on June 30, 1775.

Originally, abandonment of posts and unauthorized disclosures were the only offenses meriting the death penalty. The maximum penalties for all other crimes were reduction in rank; discharge; fines, limited to two months pay; confinement, limited to one month; and whipping, limited to 39 lashes. Based on recommendations from Gen. George Washington, capital offenses soon multiplied.

Frustrated over widespread desertion and plundering of civilian property, Congress revamped the Articles of War in September 1776. Death penalty offenses increased to 16 and the number of lashes a service member could receive increased to 100.

Court martial panels, also called juries, were composed of 13 general or field grade officers. This put enlisted members at a disadvantage. Officers were also disadvantaged by the fact that their subordinates could -- and did -- sit in judgment over their superiors, despite the obvious conflict of interest. Courts had no judges.

The judge advocate general was responsible for prosecuting, defending and administering the proceedings. This became overwhelming for one man due to the high volume of courts throughout the Continental Army, so a deputy position was created.

In those days there was no appellate court review of any court martial. Instead, the authority to reduce general court martial sentences or grant pardons was given to the commander in chief, the general commanding a department, or Congress.

The military's unique legal system was further authorized in the Constitution through the powers granted to Congress to "provide for the common Defense." Congress, however, left the Revolution's Articles of War intact for several years. The rules were modified several times up through World War II, then completely overhauled with the 1950 Congressional enactment of the Uniform Code of Military Justice.

Clearly, the Articles of War had few procedural protections for the accused with no built in protections for individual rights. The system was not viewed as independent from the commander's will; it was not seen as a "justice" system.

The UCMJ changed that. First, courts-martial were required to have law officers to preside over them. Later, these became military judges.

Second, those accused of crimes gained the right to defense counsel and the protection against self-incrimination. Finally, the Court of Military Appeals was established to protect justice and individual rights.

In the 1980s Military Rules of Evidence were adopted and the U.S. Supreme Court was given ultimate appellate jurisdiction over courts. Additionally, crime victims were given rights, including notification of judicial proceedings and the ability to seek restitution.

The newest changes to the UCMJ are also focused on protecting the rights of victims of crime. Moving the power to set aside guilty verdicts from the convening authority to a trained judiciary is more in line with American notions of justice. Likewise, allowing victims to elect out of testifying in early probable cause hearings brings the UCMJ's Article 32 investigation process closer to the federal grand jury process.

These are common sense changes that have been made after serious deliberation to ultimately ensure that the military justice system provides justice for all.