STUDENT HANDOUT (JUL 2004)

OUTLINE

1. PURPOSE OF THE UCMJ

a. The purpose of the UCMJ is to promote good order and discipline within the military service by governing the conduct of service members. It also provides a basis for the administration of justice for the Armed Forces. The UCMJ is the military version of civilian criminal law and it governs actions of personnel within the military establishment.

b. All members of the Armed Forces are responsible for upholding the UCMJ. Any person can report a violation of the UCMJ to competent military authority. If the violator can be identified, report them to the unit commander. If the violator cannot be identified, report them to the military police or the appropriate persons in the chain of command.

2. OFFENSES PUNISHABLE BY THE UCMJ

a. The UCMJ contains 146 articles. Copies of the UCMJ are posted at various places, including the company office. The Manual for Courts-Martial is the document published by the President of the United States, which implements the UCMJ. A copy of this manual is also available for viewing in company offices throughout the Marine Corps. The UCMJ covers offenses normally covered under civilian law as well as offenses only covered by the military. The following are some examples of the most commonly violated articles of the UCMJ:

a. Article 86, Absence Without Leave: This article prohibits you from being absent from your appointed place of duty, either by failing to go to your place of duty, or by leaving your place of duty without permission.

b. Article 89, Disrespect Toward a Superior Commissioned Officer: Any behavior which is disrespectful to a superior commissioned officer may be punished by this article. Failure to salute can be interpreted as disrespect towards a commissioned officer.

c. Article 90, Assaulting or Willfully Disobeying a Superior Commissioned Officer: This article makes it an offense to strike a superior commissioned officer or to refuse to obey an order given by a superior commissioned officer.

d. Article 91, Insubordinate Conduct Toward a Warrant Officer, NCO or Petty Officer: This article prohibits striking, willfully disobeying, or displaying a disrespect towards a warrant officer, NCO, or petty officer.

e. Article 115, Malingering: This article makes it an offense for a person to feign an illness or inflict an injury upon themselves to avoid work or training.

f. Article 121, Larceny and Wrongful Appropriation: Any person who wrongfully takes, obtains, or withholds, from the owner any money, personal property, or article of value of any kind (1) with the intent to permanently deprive or defraud another person of the use and benefit of the property, is guilty of larceny; or (2) with an intent to temporarily deprive or defraud another person of the use and benefit of the property, is guilty of wrongful appropriation.

g, Article 128, Assault: Any person who attempts with unlawful force or violence to do bodily harm to another person, whether or not that attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

h. Article 134, General Article: This article prohibits all conduct prejudicial to the good order and discipline of the armed forces, and all conduct of a nature to bring discredit upon the armed forces. Some examples of violations under article 134 are failure to pay debts, worthless checks, fleeing the scene of an accident, adultery and bribery.

3. FORMS OF PUNISHMENT

a. All forms of punishment are subject to restrictions specified in the UCMJ. The UCMJ provides limitations of sentences based on the nature of the crime, the form of adjudication (NJP/Court-Martial), and the position/rank of the individual awarding the punishment.

(1) Reprimand: A reprimand may be given either orally or in writing and may reflect negatively on a Marine's record of service.

(2) Forfeiture of Pay and Allowances: A forfeiture deprives a Marine of all or part of future pay and allowances earned as a result of military service. Some examples of allowances are special duty pay and basic allowance for housing.

(3) Fine: A fine makes the accused immediately liable to the United States for the entire amount of money specified in the sentence. Fines are usually imposed only when the offense committed caused financial gain for the service member.

(4) Loss of Numbers: In order to advance in the officer or SNCO ranks Marines have to be selected for promotion. When selected, a Marine will be designated a number for promotion. Loss of numbers takes the number away and that Marine is no longer selected for promotion.

(5) Reduction in Pay Grade: A reduction in pay grade caused the accused to assume a lesser rank and pay grade.

(6) Restriction to Specific Limits: Being restricted deprives the accused or normal liberty privileges. The sentence will state the physical and geographical locations to which the Marine is restricted and the duration of the restriction. Being restricted does not exclude a Marine from performing regular duties.

(7) Hard Labor without Confinement: This is when the accused must perform hard labor for a specific amount of time in addition to the Marines regular duties resulting from either a Special for General Courts Martial.

(8) Confinement: Confinement is restriction to one certain area; usually a correctional facility or a brig. Normally, hard labor will accompany confinement. This form of punishment results from a Summary Court Martial or higher.

(9) Confinement on Bread and Water or Diminished Rations: Confinement on bread and water of diminished rations may be adjudged only in the case of an enlisted member attached to or embarked in a vessel and for no more than 3 days. This punishment may be awarded by a commanding officer with the rank of Major or higher.

(10) Punitive Separation: This form of punishment results in the convicted Marine being separated from the service for fraudulent enlistment, disrespect or assaulting a commissioned officer and being given either a bad conduct discharge or a dishonorable discharge, resulting from a Special or General Court Martial.

(11) Death: The individual would have to be found guilty of murder or desertion during war beyond a reasonable doubt for this punishment to be considered.

4. COURTS-MARTIAL

a. The three types of court-martials are summary, special and general. The differences among the three types of court-martial are based on their composition, level of authority, and the severity of punishment authorized. Prior to a Court Martial, an investigation will determine what judicial proceeding will occur, depending on the severity of the offense.

b. Summary Court-Martial: A summary court-martial is composed of one active-duty commissioned officer with the rank of captain or higher.

(1) The lowest level of authority to convene a summary court-martial is normally a battalion commander or equivalent.

(2) A summary court-martial may award the following punishments:
(a) confinement for one month with hard labor;
(b) hard labor for 45 days;
(c) restriction for two months;
(d) forfeiture of one month's pay;
(e) in the case of sergeants and above, a summary court-martial may not award a reduction of more than one rank and hard labor without confinement.

(3) Except aboard ship, you may refuse a summary court-martial and may request a special or general court-martial.

(4) A summary court-martial may not try a commissioned officer, warrant officer, cadet, or midshipman for any capital offenses. You cannot be compelled to accept a summary court-martial. Since a summary court-martial is less formal than the other two types of court-martial, you may refuse to accept trial by summary court-martial and may request a special court-martial. However, you should be aware that conviction by a special or general court-martial constitutes a felony conviction.

c. Special Court-Martial: A special court-martial can be composed of a military judge alone, or a military judge and not less than three active-duty armed service members. The impartial personnel can be commissioned officers, warrant officers, or enlisted personnel.

(1) The lowest level of authority to convene a special court-martial is normally a squadron or battalion commander or equivalent.

(2) A special court-martial may award the following punishments:
(a) confinement for 6 months;
(b) hard labor without confinement for 3 months;
(c) forfeiture or two-thirds pay for 6 months;
(d) a bad conduct discharge;
(e) reduction in rank.

(3) Normally, a special court-martial may not try any capital offense when there is a mandatory punishment beyond the maximum power of a special court-martial.

d. General Court-Martial: A general court-martial can be composed of a military judge alone, or a military judge and not less than five impartial active-duty armed service members. The impartial personnel can be commissioned officers, warrants officers, or enlisted personnel.

(1) The lowest level of authority to convene a general court-martial is usually the commanding general of a division, wing, base, or the equivalent.

(2) A general court-martial may adjudge any punishment not forbidden by the UCMJ.

5. ARTICLE 31, UCMJ

a. Article 31, which is entitled "Compulsory self incrimination prohibited", generally parallels, and in some ways exceeds, the constitutional safeguards provided by the Fifth Amendment. Therefore, is is apparent that the service member's privilege against self-incrimination is protected by not only the Fifth Amendment to the Constitution but also by Article 31 of the USMC.

b. The rights of the accused before the beginning of judicial proceedings:
(1) to be represented by a lawyer;
(2) to choose the composition of the members on the court-martial;
(3) to request that an interpreter be present;
(4) to have a speedy trial.

(c) The rights of the accused before the beginning of non-judicial proceedings:
(1) to be informed of the imposition of NJP;
(2) to be informed of the alleged offenses;
(3) to be provided the information that is the basis for allegations;
(4) to be provided a statement describing the rights of the accused, the maximum punishment, the option to choose a trial by court-martial in lieu of NJP, and the option to appear personally to make a defense.

6. NON-JUDICIAL PUNISHMENT

a. Article 15 is Non-Judicial Punishment (office hours). The purpose of NJP is to provide commanders with an essential and prompt means of maintaining good order and discipline and to promote positive behavior changes in service members without the stigma of a court-martial. Article 15 hearings are held by the commanding officer to determine whether or not a violation of the UCMJ has been committed.

b. NJP is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the minor offense or the record of the service member's

c. You have the option of either demanding trial by court-martial or accepting non-judicial punishment, except aboard ship. In such case, the NJP shall be terminated. If the service member's does not request aa trial by court-martial, the NJP will proceed.

d. Any service member's punished under Article 15 who considers the punishment to be unjust or disproportionate to the offense may appeal all or part of your sentence to the next higher authority. They may set aside, decrease, suspend, or let stand any portion or the entire original sentence. However, they cannot in any way increase the original sentence.

7. DISCHARGES

a. Expiration of Active Service (EAS): Commanders are authorized to discharge enlisted Marines upon normal date of expiration of enlistment. The normal date of enlistment for any enlistment is the day prior to your last anniversary. Example: enlisted 27 Aug 1990 for four years, the EAS is 26 Aug 1994.

b. Misconduct: Whenever a Marine is involved in misconduct, commanders shall process the Marine for separation unless rehabilitation and retention is warranted. Characterization of service normally shall be under honorable conditions, but characterization as under other than honorable conditions may be warranted in some circumstances such as:
(1) offenses involving drug abuse;
(2) misconduct involving fraudulent entry;
(3) misconduct involving homosexuality.

8. DEFINITIONS

a. Administrative Separation: Discharge or release from active duty upon or prior to expiration of enlistment.

b. Separation: A general term to include discharge, release from active duty, transfer to the Fleet Marine COrps Reserve or Retired List, release from custody and control of the Armed Forces, transfer to the Inactive Ready Reserve (IRR) and similar changes in active or Reserve status.

c. Discharge: Complete severance from all military status gained by the enlistment.

9. TYPES OF DISCHARGES

a. There are five types of discharges. The first three are administrative or non-punitive and the last two are punitive. Some of you may be under the notion that all you have to do is serve the period of time stated in your contract and that you will automatically receive an honorable discharge. That's not true. A Marine's discharge is characterized by the quality of his performance and conduct during an enlistment.

b. The standard and the primary basis for determining the character of your performance and conduct, is the Performance Evaluation System. Acceptable conduct and performance of duty markings during an enlistment are 4.0 and above for conduct and 3.0 and above for proficiency. If a Marine fails to achieve these standards, it is evident that he has had significant negative aspects that outweigh all but the most meritorious aspects of a military record. If you fail to attain these standards, you are likely not to receive an honorable discharge.

c. Types of Characterization:

(1) Honorable Discharge: This classification is appropriate when the quality of the member's service has met the standards of accepted conduct and performance of duty. Any characterization other than this would be clearly inappropriate.

(2) Under Honorable Conditions (General): This is warranted when significant negative aspects of the member's conduct or performance of duty overweight or outweigh positive aspects of member's military record.

(3) Other than Honorable Conditions (General): Issued when the reason for separation is based upon behavior or omissions, that constitutes a significant departure for the conduct that is expected of a Marine. Examples of factors that may be considered include but are not limited to the use of force or violence to produce serious bodily injury or death, abuse of special positions of trust and disregard of customary superior-subordinate relations, acts or emission that endanger the security of the Marine Corps, deliberate acts or omissions that seriously endanger the health and safety of others, and drug abuse.

(4) Bad Conduct:

a. A Marine must have been convicted by a general or special court martial of an offense under the UCMJ, which was serious enough to warrant this form of discharge.

b. A Marine may also receive a bad conduct discharge from a court martial for a minor offense, if he has previously been found guilty of repeated offenses in a combination of judicial and non-judicial proceedings.

c. Additionally, a Marine may be rewarded a bad conduct discharge if he has been convicted by court martial on two or more offenses in the past three years. This is true if none of the previous or current charges is severe enough to warrant such discharge.

(5) Dishonorable:

a. A Marine must be convicted by a general court martial of an offense of dishonorable nature. These are offenses generally recognized by civilian courts as being serious felonies.

b. A Marine may also be awarded a dishonorable discharge even if he has been convicted by courts martial of three or more offenses in the last year. Regardless of whether any of the charges were severe enough to results in a dishonorable discharge by themselves.

REFERENCES

1. Manual for Courts-Martial (MCM)
2. Marine Corps Separation and Retirement Manual (MCO P1900.16E)