Posted on Dec 28, 2015
Should Commanders have UCMJ authority in a garrison environment or should this authority be given to JAG alone?
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*Edit. I've adjusted the question so that it is clearer.
I think that Commanders in a garrison environment should have not UCMJ authority especially since UCMJ and Criminal Law in America do not operate under the same standards.
Just to clarify, I am facing a courts martial for alleged sexually assault. I am asking whether Commanders should have UCMJ authority in a garrison environment as opposed to a deployed environment where courts are not readily available.
Additionally, if you view my group at http://www.facebook.com/withutheapp/ you'll cleally see that I am trying to solve the problem. I've been working on the project for a year. So I'm not trying to skirt the judicial process. I'm really just trying to ensure that justice is served.
I think that Commanders in a garrison environment should have not UCMJ authority especially since UCMJ and Criminal Law in America do not operate under the same standards.
Just to clarify, I am facing a courts martial for alleged sexually assault. I am asking whether Commanders should have UCMJ authority in a garrison environment as opposed to a deployed environment where courts are not readily available.
Additionally, if you view my group at http://www.facebook.com/withutheapp/ you'll cleally see that I am trying to solve the problem. I've been working on the project for a year. So I'm not trying to skirt the judicial process. I'm really just trying to ensure that justice is served.
Edited 10 y ago
Posted 10 y ago
Responses: 43
I don't know the particulars of your situation, nor do I need to. I can offer you this bit of advice though: Having served as a Bailiff during several Courts Martial actions, the LAST thing you need to be doing is trolling for comments on a social media site. If you don't have one already, hire a good attorney and listen to their advice. It will save you a lot of grief in the end.
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Cpl Benjamin Long
No one is going to give any meaningful advice on a public forum.... I agree... It's just a feeding frenzy of histrionic personalities fighting for dominance.
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The UCMJ gives you additional rights beyond Criminal Law in many cases. And, the military is unique, even in garrison. There are many good reasons for the current UCMJ structure, and it has developed and improved over the decades. Your own personal criminal case is very big to you (at least it should be), but it is a drop in the ocean to the UCMJ structure. You are tilting at very solid windmills here and should be concentrating on your own case, with your lawyer, and not on-line.
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1LT (Join to see)
SN Greg Wright Yeah I would recommend it. This was supposed to be about UCMJ and Commanders, but it appears that this is turning into an argument about SHARP.
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Sgt Aaron Kennedy, MS
1LT (Join to see) - Why should a junior service member stay out of it, since they are the ones most likely to be affected by the "proposed change?" Especially Navy & Marines, who CANNOT turn down NJP while at sea.
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I don't think this is a bad discussion to have but your elaboration is horrible. Commanders may lack legal training (as you stated) but they should have a legal team that doesn't.
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SSgt (Join to see)
Sir, when would a commander need to personally use case law? That's what a JAG is for - to advise them.
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1LT (Join to see)
SSgt (Join to see) Commanders should be required to give out the same punishments for like offenses. When punishments vary it gives the appearance of preferential treatment.
I have seldom seen case law or precedent affect UCMJ in that case law changes the way that UCMJ is executed. If this were the case, then all alleged perpetrators would be allowed to plead to lower offenses, would not see jail time, and would be allowed to retire like BG Sinclair. We all know that higher ranking Officers and NCOs do not receive the same punishment as lower ranking officers and NCOs.
I have seldom seen case law or precedent affect UCMJ in that case law changes the way that UCMJ is executed. If this were the case, then all alleged perpetrators would be allowed to plead to lower offenses, would not see jail time, and would be allowed to retire like BG Sinclair. We all know that higher ranking Officers and NCOs do not receive the same punishment as lower ranking officers and NCOs.
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Sgt Aaron Kennedy, MS
1LT (Join to see) - Civilian Courts don't give out the same punishments for the same offenses. The same Judges (presiding over different juries) give out wildly different sentences. Every case is DIFFERENT, therefore each punishment will be different.
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SSG (Join to see)
BG Sinclair was not convicted of sexual asault, so I'm not sure how his case applies to yours. Commanders do not bring charges against Soldiers. JAG determines what the charges will be based on the facts of the case. ALL sexual assault cases are investegated by CID. Sounds to me like you base your opinions on hearsay, rather than facts...
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Your question cannot be answered by the choices you give.
_Yes... Commanders should have UCMJ authority in a garrison environment or this authority should be given to JAG alone.
_No... Commanders should not have UCMJ authority in a garrison environment or this authority should not be given to JAG alone.
You are an officer and may not be tried at summary court martial. Therefore a military Judge, by definition a JAG officer, will preside over your proceedings.
"The commander may dispose of the offenses by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may chose from three potential levels of court-martial: summary, special, or general court-martial. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged. A summary court-martial is designed to dispose of minor offenses. Only enlisted soldiers may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him. A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel.
_Yes... Commanders should have UCMJ authority in a garrison environment or this authority should be given to JAG alone.
_No... Commanders should not have UCMJ authority in a garrison environment or this authority should not be given to JAG alone.
You are an officer and may not be tried at summary court martial. Therefore a military Judge, by definition a JAG officer, will preside over your proceedings.
"The commander may dispose of the offenses by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may chose from three potential levels of court-martial: summary, special, or general court-martial. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged. A summary court-martial is designed to dispose of minor offenses. Only enlisted soldiers may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him. A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel.
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Cpl Benjamin Long
I was confused by the clarity of the choices too... And I believe it is illegal to play the role of judge since I believe the judge is s Senate confirmation position... How can the commander have a judicial hearing when he isn't a federal judge.... Doesn't make sense...
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Legal Authority for Art 15 is in the code, no jurisdiction for civilian prosecution/relief unless the alleged crime occurred off post. This discussion is way off scope for RP.
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In garrison or deployed, you are subject to UCMJ. Therefore, commanders have the authority to recommend disciplinary actions, both punitive and non-punitive.
Even if this charge against you was off post by civilian authorities, often times, you will be referred to the MPs and then in turn to your chain of command and JAG.
To eliminate command authority under UCMJ simply because you are in Garrison would open Pandora's Box. Service members by the droves would be taking advantage of that loophole to justify all sorts of actions that are not befitting of the uniform they wear.
Good luck with your proceedings.
Even if this charge against you was off post by civilian authorities, often times, you will be referred to the MPs and then in turn to your chain of command and JAG.
To eliminate command authority under UCMJ simply because you are in Garrison would open Pandora's Box. Service members by the droves would be taking advantage of that loophole to justify all sorts of actions that are not befitting of the uniform they wear.
Good luck with your proceedings.
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1LT (Join to see)
I think most are missing the point, there is the possibility for offenders to get non judicial punishment for UCMJ offences because commanders have discretion. People want to argue that this is for the good order and discipline, but that's BS
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CPT Mark Gonzalez
1LT the authority for severe offenses is going to be withheld by the General Court Martial Authority. As an example a company commander will not have the ability to give NJP for a DUI or sexual assault. Subordinate commanders can always request jurisdiction, but that does not mean it will be granted. Investigations occur for a reason and after reviewing the facts if NJP is the best answer that means there probably was not going to be enough evidence for even go to court martial.
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Well, sir, this is really besides the point but to use the phrase 'a [noun]' implies a singular subject, but the term 'courts martial' is actually a plural noun.
You're absolutely right, though: civilian criminal penal codes in the US do not operate under the same auspice as the UCMJ, but the disparity is largely semantic: service members have a right to due process, legal counsel, a right to face accusers, etc.
Additionally, the purpose of non-judicial punishment is precisely to not overload the JAG corps with petty cases that can--and usually should--be handled at the commander's level in the military. Not to mention, service members facing NJP or Captain's Mast have the ability to request a court martial if they so choose.
The most interesting point, I think from a legal theory perspective, is that if you were to eliminate the commander's prerogative to take a service member to NJP outside of a deployment zone, you would actually be depriving those within deployment zones of the equal protection of the law, in this case that law is the UCMJ, thus eliminating the purpose of leveling, so to speak, military and civilian law.
You're absolutely right, though: civilian criminal penal codes in the US do not operate under the same auspice as the UCMJ, but the disparity is largely semantic: service members have a right to due process, legal counsel, a right to face accusers, etc.
Additionally, the purpose of non-judicial punishment is precisely to not overload the JAG corps with petty cases that can--and usually should--be handled at the commander's level in the military. Not to mention, service members facing NJP or Captain's Mast have the ability to request a court martial if they so choose.
The most interesting point, I think from a legal theory perspective, is that if you were to eliminate the commander's prerogative to take a service member to NJP outside of a deployment zone, you would actually be depriving those within deployment zones of the equal protection of the law, in this case that law is the UCMJ, thus eliminating the purpose of leveling, so to speak, military and civilian law.
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Cpl Benjamin Long
I find the NJP too be similar to arbitration in corporate law... But the problem because the self governing bias that comes with arbitration.. Not to mention arbitration has to be agreed to by the defendant, lest the company or unit usurp the role of the court
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If you have charges pending I advise you to be extremely careful about what you say on social media. If trial defense services is representing you please set up an appointment with them and discuss social media with them. If you have a private attorney do the same. Anything you post here may be brought up in your courts martial
Now as to your question I agree with you. I do not think Commanders should have UCMJ authority in a garrison environment. I believe it is better for JAG officers to make the calls on when and where to prosecute for felony level offenses. Misdemeanors I would have shared commander and JAG discretion. Lastly with non judicial punishment I would rest authority with Commander.
Now as to your question I agree with you. I do not think Commanders should have UCMJ authority in a garrison environment. I believe it is better for JAG officers to make the calls on when and where to prosecute for felony level offenses. Misdemeanors I would have shared commander and JAG discretion. Lastly with non judicial punishment I would rest authority with Commander.
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