Does the ability of your CO to overturn a court marshal conviction matter to you?

2019-09-10T17:24:13-04:00

When an Air Force officer had a sexual assault conviction overturned by his commanding officer and friend, Congress investigated this rule. (2013) The AF Chief of Staff testified that this power was essential for troop morale. I had never heard of it and as far as I knew commanders were the guys that had you court marshaled. Did you know about this and did it affect your morale?

Response by SGT David A. 'Cowboy' Groth made Sep 10 at 2019 5:27 PM

2019-09-10T17:27:01-04:00

I've never heard of it happening.

Response by Lt Col Scott Shuttleworth made Sep 10 at 2019 5:31 PM

2019-09-10T17:31:23-04:00

I found out about it when I was a commander. The Commander is the one giving the punishment and preferring charges. The next one in the chain or their boss is the appeal authority. If they think it was unjust or extreme the individual can appeal to them and have it exonerated or carried out. I think it is a good rule for the most part to keep integrity in the UCMJ process against favoritism and it works most of the time...however, it can also go the other way as we have seen.

Response by Lt Col Charlie Brown made Sep 10 at 2019 5:35 PM

2019-09-10T17:35:51-04:00

I knew it could be appealed and overturned. I have rarely seen it done

Response by CW5 Jack Cardwell made Sep 10 at 2019 5:40 PM

2019-09-10T17:40:41-04:00

Thanks for the post.

Response by Lt Col John (Jack) Christensen made Sep 10 at 2019 6:36 PM

2019-09-10T18:36:12-04:00

So my troops think if they suck up to me I'll come to their aid if a court martial convicts them? If that's the kind of morale an organization has I want no part of it!

Response by 1SG Frank Boynton made Sep 10 at 2019 7:03 PM

2019-09-10T19:03:23-04:00

It’s really no different than in the civilian world. People connected get away with murder. Civilians politicians violate their oath of office daily yet we have hauled their ass out of the house, lined them up against a wall, and execute them. It is unfortunate because if you or I was convicted of rape, we’d be in Leavenworth. It makes a mockery of the UCMJ. There is a lot more of it in the civilian world, thank goodness.

Response by SGT Javier Silva made Sep 10 at 2019 7:52 PM

2019-09-10T19:52:02-04:00

A court martial or Non-judicial Punishment?

A court martial refers to a case that has gone through the military courts, and a jury/judge has decided on the outcome of the case. These can only be appealed to the next level of military courts. A unit command does NOT have the authority to overturn the outcome of a court martial.

A non-judicial punishment refers to the punishment issued at the local unit. These can be appealed to the next level military unit, e.g. if you get a Company Level Art 15, you could appeal it to the BN (Army). The next level commander with general court martial authority can overturn a lower level Art. 15.

Response by CW4 Craig Urban made Sep 10 at 2019 10:38 PM

2019-09-10T22:38:14-04:00

If it was a special court then the commander has that right. If it was a full blown court in my opinion he does not.

Response by SSG Tom Montgomery made Sep 11 at 2019 12:01 PM

2019-09-11T12:01:38-04:00

I did not know about this rule. It would certainly affected my morale, had I encountered it when on active duty.

Response by LTC Jason Mackay made Sep 11 at 2019 10:44 PM

2019-09-11T22:44:05-04:00

I believe the case you are referring to was at General Court Martial, the General Court Martial Convening Authority (GCMCA) has to approve the sentence of the court martial. The may suspend anything but a death sentence. They can set aside a sentence or portions as the see fit. Your source is the 2012 MCM (for a 2013 GCM). I believe the GCMCA was the PACAF Commander (3star) The 2019 MCM is available on line.

A GCMCA is not the one who charged the individual. That is any one from the O3-O6 commander with UCMJ authority. In the Army it is usually the Company Commander. They recommend the way to dispose of the charges along with CJA input. The different convening authorities (Summary, Special, and General Courts Martial) retain authority over certain crimes like capital crime, rape, high ranking people, etc.

The GCMCA or any commander with UCMJ authority, has a responsibility to up hold good order and discipline while maintaining the morale of the unit. For Army folks this is AR600-20 Army Command Policy. I don't know what the PACAF Commander considered in setting this aside or reducing the sentence, but it is allowed by the MCM and the UCMJ. It is part of their authority as a GCMCA and as a Commander to control the administration of justice under the assumption there was somehow a gross miscarriage of justice or the whole service member was not considered.

It can effect morale in several ways: morale can go down as people believe that a senior person got away with it. Morale can go up in that if you stand trial at CM you will receive a fair trial and a Commander, not a nameless faceless judge or CM panel of your peers or senior officers ultimately decide your fate. Most Division Commanders I have seen give the sentence a cursory inspection, knock it around between the Senior CJA and maybe the soldier's more immediate commander (like the BDE CDR) and approve it all the same afternoon unless there was some glaring thing. The whole CM under goes an automatic appeal and judicial review for procedural errors independent of the Convening Authority, Prosecution, The Defense Attorney, and judge that heard it to start with. It is usually upheld unless something highly unusual happens.

Chapter X on Sentencing in the 2019 MCM has the painful details.