A court-martial is a formal trial held by the military to address violations of the Uniform Code of Military Justice (UCMJ). These trials form the foundation of accountability under military law. Understanding this process is not optional. The potential consequences of a court-martial are severe, including a dishonorable discharge or life imprisonment.
Timeline
Court-martial charges will come several months after the allegations surface. For the most serious cases, the lag can exceed a year. A lot happens during that interlude, many of which can influence the odds of success or whether the case gets charged at all.
A Word About Terminology
The first time you talk to an attorney, you will be asked if you have been charged or if you have received charges.
Being questioned or arrested by military law enforcement is not the same thing as being “charged.” In a court-martial, charging marks the beginning of the formal legal process. Charges are expressed on paper, in hard copy, which you will be given. The charges are referred to as “the charge sheet.”
The charging process has two stages: preferral and referral.
Preferred Charges:
This is the initial charge sheet, the first official document that lists the allegations against you. Think of it as the formal accusation.
Referred Charges:
These are the charges that actually go to trial, after the convening authority or the Office of the Special Trial Counsel (OSTC) decides to prosecute. At referral, charges can be dropped, added, or modified. What’s referred is what you will ultimately defend against at court-martial.
Special Court-Martial:
Preferral and referral usually happen almost simultaneously. Because there’s no intermediate review, the preferred and referred charges are typically identical or very similar.
General Court-Martial:
Here there’s an extra step between the formal accusation and trial, the Article 32 hearing (the preliminary hearing). Because a General Court-Martial carries greater potential punishment, the government must first show probable cause before it can proceed to trial. It’s a 3-step process:
- Charges are preferred (the initial accusation).
- The Article 32 process evaluates those charges and the evidence.
- The OSTC then decides whether to refer the charges to trial.
By the time referral happens, the final charge sheet in a General Court-Martial often looks different from the one you started with at preferral.
Part I: Threat Levels
Under the UCMJ, there are three levels of court-martial. Only two are used frequently. Understanding the level assigned to your case is the first critical step in preparing a defense.
Note that the military does not use the terms “misdemeanor” and “felony.” The civilian federal criminal system classifies a conviction at a General Court-Martial (GCM) as a felony, and a conviction at a Special Court-Martial (SPCM) as a misdemeanor. States generally follow these same classifications.
Summary Court-Martial (SCM): Severity: Least severe. A SCM will pose a fatal threat to your career despite being the least severe form of court.
Structure: Presided over by a single commissioned officer who acts as both judge and jury.
Consequence: Confinement is rare but available. It’s limited to 30 days. Reduction in rank and forfeiture of pay are possible. Strong defense counsel is still required to minimize penalties.
NOTE: SCMs are uncommon these days.
Special Court-Martial (SPCM): Severity: Less severe than a GCM, but still serious; there is no such thing as ‘just a misdemeanor’ in the military. A conviction at an SPCM will almost certainly be the end of a career one way or another and it will go on your civilian criminal record.
Structure: Can be heard by a military judge alone or by a panel.
Key Consequence: Confinement up to one year. A Bad Conduct Discharge (BCD) is possible. Almost certain separation from service even if a BCD isn’t imposed.
Cases: This court will commonly handle cases like fraudulent claims (Article 132) and positive urinalysis (Article 112a).
General Court-Martial (GCM): Severity: Most severe. Reserved for offenses comparable to felonies in civilian courts.
Structure: The guilty/not-guilty stage, called “findings,” is presided over by a judge and panel, or by the judge alone. The sentencing stage is done by the judge. The panel can consist of officers, or a combination of officers and enlisted personnel.
Maximum Consequence: Dishonorable discharge or Dismissal. Life imprisonment or the death penalty (for certain severe offenses). Reduction of rank to the lowest grade. Total forfeiture of all pay.
Cases: This court is reserved for the most complex and serious cases, including Sexual Assault (Article 120), sexual abuse of a child (Article 120b), Child Endangerment (Article 119b), and Conduct Unbecoming an Officer (Article 133).
Part II: Pre-Trial and Motions
The court-martial sequence begins long before you step into the courtroom.
Pre-Trial Procedures
Investigation and Charges: As noted above, in a General Court-Martial, the process begins with an Article 32 preliminary hearing, which determines probable cause and whether the case should go to a GCM.
The decision to refer charges to a court-martial is made by the OSTC, which is an office of senior prosecutors who have domain over the most serious cases.
Defense Representation: You have the right to a free military defense counsel at any kind of court-martial. You are also allowed to hire a civilian military attorney to lead the defense team. If you bring a civilian UCMJ specialist into your case, you will not lose the services of your appointed lawyer.
Pre-Trial Motions
Before a SPCM or GCM, both the prosecution and defense can file motions. These are requests for judicial intervention to resolve a wide range of critical issues, such as:
- Suppressing evidence that was improperly obtained
- Dismissing charges
- Appointment of experts
Trial Procedures
Arraignment: You are formally read the charges and required to enter your plea (guilty or not guilty). This is a procedural step.
Jury Selection: If you choose to be tried by a panel, members are selected to act as jurors. Your defense attorney can challenge members for bias or conflicts of interest. This will occur on the first day of your trial, after motions are resolved.
Evidence: The government presents evidence to support the allegations. The defense then uses cross-examination to challenge prosecution witnesses and introduces evidence of its own to refute the charges. In many cases, the accused can access expert witnesses, such as forensic psychologists or digital analysts, at no personal cost.
Verdict: The panel or judge deliberates in private. A conviction requires a two-thirds majority for most charges. The verdict is announced by the military judge.
Part III: Sentencing and Appeals
Sentencing
If convicted, the accused faces sentencing determined by the military judge. The sentencing hearing begins immediately after the verdict is announced. Punishments might include:
- Punitive discharge (Dishonorable Discharge, Bad Conduct Discharge, Dismissal)
- Confinement
- Reduction in rank
- Hard labor
- Total forfeiture of pay
Post-Trial Review and Appeals
Post-Trial Review: The convening authority or special trial counsel reviews the record, but their power to modify sentences or findings is now limited by recent reforms, particularly in cases prosecuted by OSTC.
Service Courts of Criminal Appeals (CCAs): These courts review the trial record for legal errors.
Court of Appeals for the Armed Forces (CAAF): A court that reviews select cases, often those concerning significant legal questions not sufficiently resolved by the CCAs. This is the military version of the Supreme Court.
Clemency: You can request clemency to seek a reduction in punishment.
A court-martial conviction is career-ending and life-altering. Understanding the process is essential. Experienced defense counsel is critical to protecting your rights, presenting a strong case, and mitigating the permanent impact of the outcome.
Free Call, Free Case Review
Speak directly with a court-martial expert about your case for a free case evaluation: 800-319-3134.