NCJ Number
52816
Date Published
1975
Length
101 pages
Annotation
THE ROLE OF THE COMMANDER IN THE MILITARY COURT-MARTIAL SYSTEM IS EXAMINED, AND MODIFICATIONS IN THAT ROLE ARE PROPOSED.
Abstract
UNDER MILITARY LAW, A COURT-MARTIAL MAY BE CONVENED BY THE PRESIDENT, THE SECRETARY OF A MILITARY DEPARTMENT, OR CERTAIN DESIGNATED MILITARY COMMANDERS. IN REALITY, THE MILITARY COMMANDER IS ALMOST ALWAYS THE CONVENING AUTHORITY. A REVIEW OF THE DEVELOPMENT OF THE MILITARY COURT-MARTIAL SYSTEM SHOWS THAT IT BEGAN AS A DISCIPLINARY CODE, EVOLVED TO A SYSTEM OF MILITARY JUSTICE, AND HAS BECOME A SOPHISTICATED CRIMINAL JUSTICE PROCEDURE FOR USE IN THE ARMED FORCES. WHEREAS A DISCIPLINARY CODE IS A TOOL FOR THE COMMANDER'S USE IN DISCIPLINING TROOPS WITHOUT RECOURSE TO LEGAL RULES, A MILITARY JUSTICE SYSTEM, AS A QUASI-LEGAL PROCEEDING, IS SUBJECT TO SOME RULES OF PROCEDURE AND IS NOT ONLY A TOOL OF DISCIPLINE BUT ALSO A MEANS OF HANDLING COMMON CRIMINAL OFFENSES NOT NECESSARILY INVOLVING MILITARY DISCIPLINE. A CRIMINAL JUSTICE PROCEDURE IS A FULL LEGAL COURT PROCEDURE FOR HANDLING BOTH DISCIPLINARY PROBLEMS AND CRIMINAL MATTERS. THE COMMANDER'S ROLE DEVELOPED ALONG WITH THE COURT-MARTIAL, AND UNDER THE EXISTING SYSTEM THE COMMANDER IS A NONLAWYER PERFORMING A LEGAL AND JUDICIAL ROLE IN A CRIMINAL JUSTICE PROCESS. THE COMPONENTS OF THAT ROLE -REFERRAL OF CASES, APPOINTMENT OF COURT PERSONNEL, INITIAL REVIEW, OTHER FUNCTIONS -- ARE EXAMINED, AND ARGUMENTS FOR AND AGAINST THE COMMANDER ASSUMING THESE FUNCTIONS ARE CONSIDERED. CONGRESSIONAL PROPOSALS FOR CHANGING THE COMMANDER'S ROLE IN THE MILITARY CRIMINAL JUSTICE PROCESS ARE DISCUSSED, AND A NEW ROLE FOR THE COMMANDER IS PROPOSED. IT IS SUGGESTED THAT THE COMMANDER RETAIN ONLY THREE FUNCTIONS IN THE CRIMINAL JUSTICE PROCESS: ULTIMATE CONTROL OVER THE PROSECUTORIAL FUNCTION (DECIDING WHAT CASES WILL BE TRIED); ABILITY TO RELIEVE A COURT MEMBER FROM COURT-MARTIAL DUTY WHEN THE MEMBER IS NEEDED FOR MILITARY ACTIVITIES; AND CLEMENCY POWER. ALL OTHER LEGAL AND JUDICIAL FUNCTIONS ARE TO BE HANDLED BY MILITARY LAWYERS, WHO ALSO WILL SERVE AS ADVISERS TO THE COMMANDER. UNDER THE PROPOSED SYSTEM, THE COMMANDER'S TIME WILL BE PUT TO BETTER USE IN LEADING TROOPS AND ACCOMPLISHING MISSIONS. DETAILS OF THE PROPOSED CHANGES, WHICH BASICALLY RETAIN THE COMMANDER'S AUTHORITY BUT ELIMINATE THE NEED FOR THE COMMANDER TO EXERCISE THAT AUTHORITY ON A DAY-TO-DAY, CASE-BY-CASE BASIS, ARE PROVIDED. (LKM)