Military Law

The body of laws, rules, and regulations developed to meet the needs of the military. It encompasses service in the military, the constitutional rights of service members, the military criminal justice system, and the international law of armed conflict.

Framers of the Constitution vigorously debated the necessity and advisability of a standing army. Federalists like Alexander Hamilton and James Madison argued that a standing army was needed for the maintenance of a unified defense. Others, like Thomas Jefferson and George Mason, were fearful of instituting a military establishment that could be an instrument of governmental abuse. They argued that the Constitution should prohibit or at least limit the size of the armed forces. The opposing sides compromised by approving a standing army but limiting appropriations for its support to two-year terms, thereby imposing a continual check on the military's activities.

The authority of the government to maintain a military and to develop rules and regulations governing it is found in Article I, Section 8, of the Constitution, which grants Congress the power to provide for the common defense and to raise and support armed forces.

The Supreme Court confirmed the legality of the standing army in Ex parte Milligan, 71 U.S. 2, 18 L. Ed. 281, 4 Wall. 2 (mem.) (1866). The Court held that the Constitution allows Congress to enact rules and regulations to punish any member of the military when he or she commits a crime, in times of war or peace and in any location. The Court further confirmed the constitutionality of martial law in situations where ordinary law is insufficient to secure public safety and private rights.

Service in the Military

Congress's duty to provide for the national defense is carried out through four basic routes into military service: enlistment, activation of reservists, conscription, and appointment as an officer.

Typically military enlistment entails a six-year service obligation, usually divided between active and reserve duty. Enlistees agree to abide by the provisions of the Uniform Code of Military Justice (UCMJ), obey lawful orders, serve in combat as required, and accept any changes in status or benefits brought about by war or statutory amendments. In return, the military branch agrees to provide the enlistee with compensation and to honor promises concerning assignment, education, compensation, and support of dependents.

Enlistment is open to persons who are at least seventeen years old and who enter into the enlistment agreement voluntarily. Enlistment is not available to declared homosexuals (though the military may not inquire as to sexual orientation) or to unmarried parents of children under eighteen years. Enlistees are required to sign the enlistment agreement and, in most cases, take the oath of allegiance.

Enlistment in the armed forces creates both a contractual obligation and a change in the recruit's legal status. (See United States v. Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 [1890].) Although personal service contracts are generally not enforceable, the courts recognize the special legal status of military enlistees and have required those who breach the enlistment contract to remain in the service or serve a prison term. However, after the institution of the all-volunteer military during the 1970s and 1980s, the courts relied more on traditional contract law when ruling on breach of enlistment suits. (See Woodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987], and Cinciarelli v. Carter, 662 F.2d 73, 213 U.S. App. D.C. 228 [D.C. Cir. 1981], where the courts applied contract law principles and found that the enlistments in question were void or voidable.)

Reservists or National Guard members are civilians who are subject to active service to execute laws, suppress insurrections, and repel invasions. Several suits by state governors have challenged congressional power to call up reservists. In Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990), a suit by Minnesota's governor challenging Congress's authority to call reservists to active duty, the Supreme Court confirmed that the reserve system, under which members serve in both the state National Guard and the federal National Guard, is a necessary and proper exercise of Congress's power to raise and support armies.

Conscription, also known as the draft, is another route by which individuals are inducted into military service. The draft was the primary means of filling the ranks of the military from World War I through World War II, the Korean War, and the Vietnam War. Although many cases challenged the constitutionality of conscription, the Supreme Court has consistently held that Congress's power to conscript Americans for military service is "beyond question." (See United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968].) Deferments and exemptions from the draft were granted for certain physical, mental, and religious reasons, or where induction would cause an undue hardship on the draftee or the draftee's family. The draft was abolished in 1972.

The final method of entry into the military is through appointment as an officer. Officer appointments are governed by the Appointments Clause of the Constitution (Art. II, Sec. 2, Cl. 2). Officers are appointed to a rank within a specific branch of the service.

Most military personnel serve their entire tour of duty and are discharged without any complications. An honorable discharge must be issued when a service member's record reflects acceptable military conduct and performance of duty (32 C.F.R. pt. 41, app. A). An honorable discharge cannot be denied without due process of law. (See United States ex rel. Roberson v. Keating, 121 F. Supp. 477 [D.C. Ill. 1949].) A general discharge under honorable conditions may be issued when the service member's record does not warrant an honorable discharge because of ineptitude, defective attitude, or apathy (32 C.F.R. pt. 41, app. A).

A discharge under other than honorable conditions may be issued under certain circumstances indicating that a service member's behavior is inconsistent with conduct expected of military personnel (32 C.F.R. pt. 41, app. A, pt. 2). In most cases the service member must be notified and given an opportunity to request review of the discharge by an administrative review board.

Bad-conduct and dishonorable discharges are punitive discharges that may be issued only after a full court-martial. Bad-conduct and dishonorable discharges result in loss of veterans' benefits and, in some cases, loss of civil rights.

In addition to discharges, separations from military service may be accomplished through administrative proceedings (10 U.S.C.A. § 1169). The Department of Defense outlines the reasons, guidelines, and procedures for administrative separation (32 C.F.R. pt. 41, app. A). Administrative separation may be allowed to permit a service member to pursue educational opportunities or accept public office, to alleviate hardship or dependency, to accommodate the demands of pregnancy or parenthood, to address religious concerns or conscientious objections, or to deal with physical and mental conditions that interfere with assignment or performance of duty.

Administrative separation may be initiated when a service member is found to have engaged in homosexual conduct. The National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, Nov. 30, 1993, 107 Stat. 1547, states, "The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." The courts have consistently upheld the congressional prerogative to discharge homosexuals from the military.

During the 1980s the military discharged service members for homosexual orientation as well as homosexual conduct. In 1993 President Bill Clinton attempted to change the military's policy of discharging gays and lesbians because of their sexual orientation. Clinton struck a compromise with those opposed to changing the policy in the National Defense Authorization Act of 1994, which requires separation from service of individuals who voluntarily declare their homosexuality, but bars military personnel from inquiring into a service member's sexual orientation.

Two administrative bodies review military discharges: the Discharge Review Board and the Board for Correction of Military Records. Service members may also seek judicial review of a discharge, but the courts generally require exhaustion of administrative remedies before they will accept jurisdiction over a discharge review. (See Seepe v. Department of Navy, 518 F.2d 760 [6th Cir. 1975], and Woodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987].)

Rights of Service Members

In the past some legal analysts contended that those in the military receive a level of constitutional protection that is inferior to that afforded civilians. However, in United States v. Stuckey, 10 M.J. 347 (1981), the Court of Military Appeals (now called the U.S. Court of Appeals for the Armed Services) held that "the Bill of Rights applies with full force to men and women in the military service… ."

Congress, under its authority to regulate the armed forces, generally determines the due process and equal protection rights of service personnel, and most courts defer to congressional authority in this area. However, the Supreme Court has made it clear that Congress must heed the Constitution when it enacts legislation dealing with the military.

Because both the First Amendment and the authority to regulate the military are found in the Constitution, a balance must be struck between First Amendment freedoms and the needs of the military. For example, article 88 of the UCMJ makes it a crime for a commissioned officer to use contemptuous words against the president, vice president, Congress, and other government officials. Although this would probably be a violation of First Amendment freedom of speech outside the military context, constitutional challenges to article 88 have consistently failed. In United States v. Howe, 37 C.M.R. 555 (A.B.R. 1966), reconsideration denied, 37 C.M.R. 429 (C.M.A. 1967), a second lieutenant was convicted of violating article 88 when he participated in an antiwar demonstration in which he carried a sign derogating President Lyndon B. Johnson. The court allowed his conviction to stand, even though he was off duty and wearing civilian clothes at the time of the demonstration. Similar limitations on the speech of enlisted personnel have also been upheld.

Military personnel are entitled to certain rights and benefits by virtue of their service. They retain the right to vote and participate in the election of the government. For income and property tax purposes, they retain the domicile in which they reside at the time of enlistment and cannot be taxed by other states where they may be stationed. The Soldiers and Sailors Civil Relief Act Amendments of 1942 (SSCRA) (50 U.S.C.A. app. §§ 514-591) protects military personnel from legal or financial disadvantage that results from their being ordered to active duty. A variety of remedies to alleviate hardship are available under the SSCRA, including stays of civil proceedings; stays of execution of judgments, attachments, or garnishments; protection against foreclosures on real or personal property; a cap on interest rates charged on obligations incurred before active duty; and protection against evictions.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U.S.C.A. § 4301 et seq.) requires employers to rehire former employees who serve in the military for five years or less, with certain exceptions. The act also protects insurance, pension, and fringe benefits. Also, the Veterans' Preference Act (1944) (5 U.S.C.A. §§ 2108 and 3309-3320) grants an employment preference to certain veterans and their survivors and enhances their job security.

Veterans also receive education benefits under the Post-Vietnam Era Veterans' Educational Assistance Program (1976) (38 U.S.C.A. ch. 32) and the New GI Bill (1987) (38 U.S.C.A. ch. 30). Education benefits are granted to spouses and dependent children of certain veterans in the Survivors' and Dependents' Educational Assistance Act (38 U.S.C.A. § 3501). Finally, most veterans are eligible for assistance in purchasing a home under a federal lender guarantee program that lowers the mortgage interest rate and down payment a veteran must pay (38 U.S.C.A. § 3710).

Under some circumstances military personnel may seek compensation from the federal government for injury or death that occurs during service under the Federal Tort Claims Act (28 U.S.C.A. §§ 2675). The most notable exceptions under the act are claims arising out of combat during time of war and claims arising while the service member is in a country outside the United States. In addition, the Military Claims Act (10 U.S.C.A. § 2733) provides an administrative remedy for those who incur damage to or loss of property, personal injury, or death caused by a civilian employee or a member of the armed services. The Military Claims Act addresses injuries not covered by the Federal Tort Claims Act.

Military Criminal Justice System

E The military justice system is the primary legal enforcement tool of the armed services. It is similar to but separate from the civilian criminal justice system. The Uniform Code of Military Justice, first enacted in 1950, is the principal body of laws that apply to members of the military. Military tribunals interpret and enforce it.

There are several rationales for a separate military justice system. The system's procedures are efficient and ensure swift and certain decisions and punishments, which are essential to troop discipline. By comparison the civilian criminal justice system can be cumbersome and slow and may yield unanticipated or inconsistent results. Speedy trials and predictable decisions aid the military in its effort to maintain order and uniformity. This in turn contributes to national security. In addition, the court-martial system fulfills the civilian public's expectation of a disciplined and efficient military.

In addition to enhancing discipline, order, uniformity, efficiency, and obedience, the UCMJ addresses certain offenses unique to the military, such as desertion, insubordination, or absence without leave. Finally, the military requires a uniform system that can be administered at the location of the crime to adjudicate offenses committed by service members outside U.S. jurisdiction.

The jurisdiction of the military courts is established when the court is properly convened, the membership of the court satisfies the requirements of the UCMJ, the court has the power to try the accused, and the offense is addressed in the UCMJ. The UCMJ provides that military courts have jurisdiction over all members of the armed services and certain civilians who meet limited, well-defined criteria.

The three tiers of military courts are courts-martial, Courts of Criminal Appeals, and the United States Court of Appeals for the Armed Services.

Courts Martial

The three types of courts-martial—summary, general, and special—comprise the trial level of the military justice system. Courts-martial were originally authorized by an amendment to the Articles of War (Act of March 3, 1863, ch. 75, sec. 30, 12 Stat. 736). The amendment gave courts-martial jurisdiction over military personnel in times of war, insurrection, or rebellion to prosecute such crimes as murder, robbery, arson, burglary, rape, and other common crimes. The UCMJ authorizes military commanders to convene courts-martial on an ad hoc basis to try a single case or several cases of service members suspected of violating the code.

Summary Courts-Martial

Summary courtsmartial adjudicate minor offenses. Their jurisdiction is limited to enlisted personnel. Summary courts-martial may impose a sentence of confinement for not more than one month, hard labor without confinement for not more than forty-five days, restriction to specified limits for not more than two months, or forfeiture of not more than two-thirds of one month's pay (UCMJ art. 20, 10 U.S.C.A. § 820). Although the summary court-martial is intended to dispose of petty criminal cases promptly, it must fully and fairly investigate both sides of the case. Nevertheless, the protections guaranteed in special or general courts-martial are diminished in a summary hearing. Therefore, a summary court-martial may be conducted only with the consent of the accused.

The defendant in a summary court-martial may consult with military counsel before trial but is not entitled to military defense counsel at the hearing. A summary court-martial is presided over by a single commissioned officer who conducts the trial with minimal input from adversarial counsel and acts as judge, fact finder, and counsel. Thus, a summary court-martial is more similar to the inquisitorial courts of the civil-law system than the Anglo-American adversarial model. Summary courts-martial are employed less frequently than other types of courts-martial. With increased recognition of the constitutional rights of the accused during the last part of the twentieth century, their use has greatly diminished.

Special Courts-Martial

A special court-martial generally consists of a military judge and at least three armed service members. However, under article 16(2) of the UCMJ (10 U.S.C.A. § 816(2)), the members may sit without a judge, or the accused may choose to be tried by a judge alone.

The military judge position was authorized by the Military Justice Act of 1968 (UCMJ art. 26, 10 U.S.C.A. § 826). The military judge's role is similar to that of a civilian trial judge. Military judges do not determine penalties and may only instruct the members of the court, who act as a jury, as to the kind and degree of punishment the court may legally impose, unless the accused elects to have the judge sit as both judge and jury. This dual role is permissible only in noncapital cases. In any case the judge rules on all legal questions.

The UCMJ requires that service members selected for the special court-martial be the best qualified to serve, as measured by their age, education, training, experience, length of service, and judicial temperament.

Special courts-martial have jurisdiction over most offenses under the UCMJ and may impose a range of sentences, including confinement for no longer than six months, three months of hard labor without confinement, a bad-conduct discharge, forfeiture of pay not to exceed two-thirds monthly pay, withholding of pay for no more than six months, or a reduction in rank (UCMJ art. 19, 10 U.S.C.A. § 819).

General Courts-Martial

The general court-martial is the most powerful trial court in the military justice system. A general court-martial is presided over by either a military judge and at least five service members, or a judge alone if the accused so requests and the case involves a noncapital offense (UCMJ art. 16(1), 10 U.S.C.A. § 816(1)). General courts-martial may try all offenses under the UCMJ and may impose any lawful sentence, including the death penalty, dishonorable discharge, total forfeiture of all pay and allowances, and confinement. General courts-martial have jurisdiction over all persons subject to the UCMJ.

A general court-martial may be convened only by a high-ranking official, such as the president, the secretary of a military branch, a general, or a commander of a large unit or major installation. The commander of a smaller unit may only convene a special court-martial. Trial attorneys appointed to represent the accused in a general court-martial must be certified military lawyers. Verbatim recordings of general courts-martial are required by the Rules for Court-Martial.

The constitutionality of the court-martial system has been upheld in a number of cases under the theory that the military constitutes a separate society that requires its own criminal justice system. The Supreme Court has consistently deferred to the authority of the military, as conferred by Congress, to govern its members. In Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L.Ed. 2d 364 (1987), the Court held that "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military… . [W]e have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated."

Courts of Criminal Appeals

The intermediate appellate courts in the military justice system are the four Courts of Criminal Appeals (CCA), one for each branch of the armed services (Army, Navy, Air Force, Marines). Before 1995 these courts were called the Courts of Military Review (CMR).

The Military Justice Act of 1968 (10 U.S.C.A. § 866) established the CMR to review court-martial convictions. They generally have three-judge panels that review all cases in which the sentence exceeds one year of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted person (UCMJ art. 66, 10 U.S.C.A. § 866). Courts of Criminal Appeals may review both findings of fact and findings of law and may reduce the sentence, dismiss the charges, or order a new trial.

Review by the CCA is mandatory and automatic in cases where the sentence is death, dismissal, dishonorable or bad-conduct discharge, or imprisonment for one year or more, and the right to appellate review has not been waived or an appeal has not been withdrawn. CCA judges may be commissioned officers or civilians, but all must be members of a bar of a federal court or of a state's highest court. The judges are selected by the judge advocate general of the appropriate service branch. CCA judges do not have tenure or fixed terms. They serve at the pleasure of the judge advocate general. Decisions of the CCA are subject to review by the United States Court of Appeals for the Armed Forces.

U.S. Court of Appeals for the Armed Forces

Congress established the U.S. Court of Appeals for the Armed Forces (USCAAF), formerly known as the Court of Military Appeals (CMA), in 1950 (10 U.S.C.A. § 867). It is the highest civilian court responsible for reviewing decisions of military tribunals. It is exclusively an appellate criminal court. The court consists of three civilian judges appointed by the president, with the advice and consent of the Senate, to serve fifteen-year terms.

The USCAAF has jurisdiction over all cases in which the death penalty is imposed, all cases sent by the judge advocate general for review after CCA review, and certain appeals petitioned by the accused that the court agrees to review. The court may only review questions of law. Decisions of the USCAAF may be appealed to the U.S. Supreme Court, which may grant or deny review.

Law of Armed Conflict

The international law of armed conflict applies to situations involving an armed, hostile conflict that is not a civil or internal matter.

An armed conflict may begin by declaration of war, by the announcement of one governmental entity that it considers itself at war with another, or through the commission of hostile acts by the military forces of one entity against another. In the past a formal declaration of hostilities was required before a conflict was legally interpreted as a war. Thus, in Savage v. Sun Life Assurance Co., 57 F. Supp. 620 (W.D. La. 1944), the court found that the insured, who died in the Japanese attack on Pearl Harbor during World War II, had not died as a result of war because the United States had not yet formally declared itself at war with Japan. Rather, the court found that the insured's death was accidental and that his beneficiary could collect double indemnity under an accidental death policy. In modern times the outbreak of hostilities even without a formal declaration or ultimatum is regarded as war in a legal sense, unless both parties deny the existence of a state of war.

Armed conflict may be terminated by a peace treaty, a cessation of hostilities and establishment of peaceful relations, unconditional surrender, or subjugation.

The United States, as a member of the United Nations, is bound by the U.N. Charter, which requires that its members refrain from the threat or use of force in any manner not consistent with U.N. policies. In addition, the United States is a signatory to most major treaties relating to warfare, including the Hague Conference of 1907, the Geneva conferences of 1929 and 1949, and the Genocide Convention of 1948. All of these treaties set forth basic principles that govern the conduct of war: force should be directed only at targets directly related to the enemy's ability to wage war (military necessity); the degree of force used should be directly related to the importance of the target and should be no more than is necessary to achieve the military objective (proportionality); and the force used should cause no unnecessary suffering, destruction of civilian property, loss of civilian life, or loss of natural resources (humanitarian principle). In addition, the Hague Conference provided that captured prisoners cannot be killed, captured towns cannot be pillaged, and the property, rights, and lives of civilians in armed conflict areas must be respected.

In addition to written treaties relating to war, international armed conflict is governed by customary international law, or the common law of armed conflict. Under this constantly evolving body of law, certain conduct is proscribed because world opinion forbids it. In Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (1942), order modified by 63 S. Ct. 22, the Court upheld jurisdiction of a military tribunal over German saboteurs who used civilian disguises, even though no written law or treaty justified their trial. The Court based its decision on the ground that infiltration by disguise violated the customary law of armed conflict. (See also The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320 [1900].) The customary law of war is based on the same principles embodied in the Hague Conference and subsequent treaties and reflects international agreement that actions inconsistent with those principles should not go unpunished even in the absence of express prohibitions. Many nations, including the United States, have codified significant portions of the common law of armed conflict. (See U.S. Department of the Army, The Law of Land Warfare [Field Manual 27-10, 1956].)

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