Do our legal provisions and processes allow Government to pronounce a uniformed service member guilty w/o trial & w/o evidence?

With less than six months after enlistment, I was charged with smoking in an unauthorized area. It was referred to a Summary Courts Martial. This particular legal action has the lowest bar of any. The O-4 explained he was acting as my defense, so I explained exactly what happened. He then said he was the prosecution. Shortly thereafter, I was found guilty. Didn’t affect me career wise or getting the highest security level possible, but adds fuel to your topic.

http://www.monterey.army.mil/Legal/trial_defense/summary_court_martials_fact_sheet.pdf

Gene, it appears many things are being mushed together that shouldn't be. Criminal law requires quilt beyond reasonable doubt. The "preponderance" aspect is found in civil law which is a lower standard to meet. Innocent until proven guilty isn't in the Constitution. Closest aspect would be the 14th Amendment which talks about equal protection under the law. When it comes to administrative procedures, that's where you find much of what goes on in the military. The two prior standards don't have to be met in administrative procedures. You also don't have 5th Amendment or double jeopardy protection in the administrative arena. If a duly appointed investigator is performing a JAGMAN and you refuse to answer questions, you can be punished for not answering. If one authority issues say a reprimand and a senior authority decides to bust you a rank, that's legal (although a morale killer and demonstration that the CoC isn't wired together well).

Even Courts-Martial are not the same as criminal courts although they share several process, rules of evidence, etc. stuff. Courts-Martial was established by Congress under Article 1 of the Constitution and Federal Courts under Article 3. They operate differently. Article 3, 5th Amendment RIGHT not to self incriminate, Article 1 PRIVILEGE not to self incriminate. You see Congress felt the 5th Amendment aspect should be conveyed to military members but couldn't grant a "right" under Article 1 (why? a lawyer is needed here because I don't remember). That's the extent of my engineering legal mind as I learned some of these differences when having to do JAGMANs, sit Court-Martials, etc. The worst thing you can do is make broad sweeping statements that somehow by saying them, makes it true.

Finally, if a member believes their DD-214 that gave them a DD, nasty RE Code, or whatever, the DD-214 is an administrative document in which an administrative appeal can be made to the governing Service's board. In the Navy, it's the Board of Correction of Naval Records. The other services have a similar board. These boards only look at if the process was conducted correctly, not necessarily the end result. The boards don't substitute themselves into the judgement arena either. A typical correction that a board will approve is an improper RE code (criminal act) when the reason the member was tossed was flunking the physical fitness test. A clear error. The correction that would be made would be to change the DD to honorable or other and the RE code to the one that talks about flunking the PFT. That's an unlikely extreme example but illustrates the point.

Seems preposterous to me, Captain. My father was a Federal Administrative Law Judge. I don't believe that he would condone this. (I am no legal professional myself.) CPT Gurinder (Gene) Rana