THE UNIFORM CODE of MILITARY JUSTICE - UNC Charlotte Army ...

Section 

3 

THE UNIFORM CODE of 

MILITARY JUSTICE 

Values and Ethics Track 

Key Points 

1 The Court-Martial System 

2 Unlawful Command Influence 

3 Search and Seizure Procedures 

4 Soldier Rights Under Article 31 

5 Nonjudicial Punishment—Article 15 

6 Legal Implementation of the Army’s Homosexual Policy 

7 Extremist Organizations 

8 Hazing Prohibitions 

e 

It is imperative that young leaders know the background 

of military justice, especially the protections afforded 

under the UCMJ, because they will be responsible for 

both dispensing justice and enforcing discipline. 

CPT Pat Murphy, SJA

The Uniform Code of Military Justice ■ 91 

Introduction 

The purpose of the Uniform Code of Military Justice is to provide for a structured, 

orderly military force. So, unlike the civilian criminal justice system, the UCMJ offers 

both judicial and nonjudicial punishments. In other words, commanders, rather than 

judges, can impose up to four types of punishments—or a combination of them— 

under Article 15 of the UCMJ. 

UCMJ authority lies with commanders. Your role as a lieutenant will be limited to 

reporting UCMJ violations committed by your Soldiers to your commander, and to 

making recommendations to your commander on the disposition of the offense or the 

appropriate punishment your Soldiers should receive. 

As a soon-to-be-commissioned officer, it would behoove you to become familiar 

with the offenses and penalties outlined in the Manual for Courts-Martial. 

What Would You Do? 

Your platoon’s task is to provide local security at a checkpoint in a city in Iraq. 

The task and the current threat level allow you the flexibility to rotate your 

squads. You establish the following rotation every three hours: One squad pulls 

the security mission, another squad conducts weapons maintenance and other 

assigned priorities of work, and the last squad is allowed to walk within a fourblock 

area as ambassadors to interact with the local populace. You do not 

authorize the squad to move in elements smaller than a team. After inspecting 

the squad at the checkpoint and doing spot checks of the squad conducting 

maintenance, you take your radiotelephone operator (RTO) and two Soldiers 

from 3rd squad to check the squad moving through the four-block area. From one 

corner, you observe two of your Soldiers not with the rest of their team, standing 

at a local vendor table. One is the team leader. You observe the team leader 

purchase an item from the vendor and move down the street. You approach the 

vendor and discover that the vendor is selling black-market music CDs and movie 

DVDs. A division policy memo states that no Soldier will purchase black-market 

items. Did this Soldier violate the UCMJ? If so, which articles and why? What 

action do you take? Do you elevate the offense to your company commander? If 

so, what recommendation do you give as to how to dispose of the offense? 

The Court-Martial System 

Procedure 

The goal of the court-martial system is justice. As in all American criminal courts, courtsmartial 

are adversary proceedings. That is, lawyers representing the government and the 

accused present the facts, legal aspects, and arguments most favorable to each side. In doing 

so, they follow the rules of procedure and evidence. Based upon these presentations, the 

judge decides questions of law. The court-martial members apply the law and decide

92 ■ SECTION 3 

The Manual for Courts- 

Martial can be 

downloaded from the 

Administrative link on 

the home page of the 

official Department of 

the Army Publications 

and Forms web site, 

http://www.army.mil 

/usapa/index.html 

staff judge advocate 

a lawyer for his or her 

command who provides 

legal services to 

commanders and 

advises court-martial 

convening authorities 

trial counsel 

the prosecutor in a 

court-martial, who 

represents the 

government 

defense counsel 

the attorney in a courtmartial, 

who represents 

the accused 

questions of fact. Only a court-martial can determine innocence or guilt. General and 

special court-martial convictions are equivalent to federal court convictions. As a result, 

a conviction is a federal conviction, and any time served will be in a federal penitentiary. 

At a court-martial, the trial counsel represents the government while the defense counsel 

represents the accused. Each counsel is duty-bound to do everything possible within the 

law to represent the client’s interests. Our country’s policy is to ensure that each Soldier 

charged with a crime has an opportunity to present the best possible defense. This system 

allows both sides to bring all issues before the court so it may make a just decision. 

Determination of Criminal Conduct 

A crime is an act punishable by law. Violations of Army regulations, state and federal 

laws, and the superiors’ orders may constitute criminal conduct punishable under the 

UCMJ by judicial punishment. You can resolve any question of what constitutes criminal 

conduct under the UCMJ by researching the UCMJ or the Manual for Courts-Martial 

(MCM), or by contacting your staff judge advocate or trial counsel. In many cases, a Soldier’s 

conduct may be substandard or personally offensive without being criminal. Commanders 

handle such infractions through nonjudicial punishment. 

Relations with Staff Judge Advocates 

Staff judge advocates (SJAs) are lawyers for their commands. Their responsibility is to 

provide legal services to commanders and advise court-martial convening authorities 

(CMCAs). Staff judge advocates provide professional guidance and assistance in both 

judicial and nonjudicial cases at all levels. There are two types of court-martial counsel: 

trial counsel and defense counsel. 

Trial Counsel 

The trial counsel is the prosecutor, a key individual in the court-martial process. The 

trial counsel represents the commander or the US government. The trial counsel is 

responsible for witnesses, documents, and all the other arrangements related to the trial. 

The commander establishes a good relationship with the trial counsel early in a case to 

prevent unnecessary delay. Command cooperation is essential to the complete presentation 

of the government’s case. 

Defense Counsel 

The defense counsel, generally assigned to the Trial Defense Service (TDS), is also a key 

individual in the court-martial process. To prevent conflicts of interest, TDS attorneys do 

not work for the SJA and are not in the SJA rating chain. The defense counsel is the accused’s 

representative and acts solely on his or her behalf. The defense counsel is required by law 

and ethics to present the best possible defense. This includes determining the facts and 

sometimes recommending rehabilitation for a Soldier. 

Types of Courts-Martial 

The court-martial system consists of three types of courts-martial: a summary court-martial, 

a special court-martial, and a general court-martial. The seriousness of the offenses alleged 

generally determines the type of court-martial. 

Summary Court-Martial 

A summary court-martial (SCM) is a court composed of one commissioned officer who 

may or may not be a lawyer. The SCM handles minor crimes and has simple procedures. 

The maximum punishment—which depends upon the rank of the accused—is limited 

to confinement for one month; forfeiture of two-thirds pay for one month; and reduction 

in grade. A SCM may not try an accused against his or her will. If the Soldier objects, the


TABLE 3.1 

Courts-Martial in the Army 

commander may consider trial by a higher court-martial. The accused does not have the 

right to military counsel at an SCM. 

Special Court-Martial 

A special court-martial (SPCM) consists of a military judge, at least three court 

members (unless the accused chooses to be tried by a military judge alone), a trial counsel, 

and a defense counsel. The maximum sentence is confinement for six months; forfeiture 

of two-thirds pay per month for six months; and reduction to the lowest enlisted grade. 

The SPCM convening 

authority is normally the 

first general officer in the 

Soldier’s chain of 

command.


adjudge 

to determine or decide 

by judicial procedure; 

adjudicate 

The SPCM convening authority may authorize the SPCM to pronounce, or adjudge, a badconduct 

discharge (BCD) as part of its maximum sentence. This proceeding is known as 

a BCD SPCM. It differs from an ordinary SPCM in that a verbatim court reporter is 

required. The accused has a right to an automatic appeal to the Army Court of Military 

Review if a BCD SPCM is adjudged. 

General Court-Martial 

A general court-martial (GCM) tries the most serious offenses. It consists of a military 

judge, at least five court members (unless the accused elects to be tried by a military judge 

alone), a trial counsel, and a defense counsel. Both counsels must be lawyers. Unless the 

accused waives it, a formal investigation must occur before a general court-martial may 

try the case. In most cases, the Army’s Criminal Investigation Division (CID) conducts 

the investigation. The GCM may adjudge the most severe sentences authorized by law, 

including dishonorable discharge. In both GCMs and SPCMs, an enlisted accused may 

request that at least one-third of the court be enlisted Soldiers. 

Preferring Charges 

Preferral of charges is the first formal step in a court-martial. Preferral of charges consists 

of drafting a charge sheet containing the charges and specifications against the accused. 

The charge sheet must be signed by the accuser under oath. Once charges have been 

preferred they may be referred to one of the three types of courts-martial: summary, special, 

or general. A person who prefers charges must: 

1. Sign the charges and specifications under oath before a commissioned officer of the 

armed forces authorized to administer oaths 

2. State that the signer has personal knowledge of or has investigated the matters set 

forth in the charges and specifications and that they are true in fact to the best of 

that person’s knowledge and belief. 

Restriction Procedures 

restriction 

the moral restraint of a 

Soldier’s movement to a 

specified area 

Depending on the severity of the charges, an accused may be restrained before his or her 

trial. The most severe forms of restraint are arrest and confinement. The least severe is 

conditions on liberty. Between these is “restriction.” 

Restriction is the moral restraint of a Soldier’s movement to a specified area. For 

example, depending on the nature of the offense, commanders can restrict Soldiers to the 

battalion area, such as the barracks, mess hall, chapel, and place of duty, or restrict them 

from certain areas such as the enlisted club or bowling alley. 

Unless otherwise indicated, Soldiers are expected to perform their regular duties while 

restricted. Restriction of an enlisted Soldier may be imposed by any commissioned officer, and 

the authority may be delegated to warrant and noncommissioned officers. Restriction of an 

officer may only be done by order of a commander to whose authority the officer is subject. 

Critical Thinking 

e 

What must the commander do prior to ordering restraint? 

How must the Soldier be notified of restriction? 

What are the three consequences that result when a Soldier is placed under 

restriction?


Restriction procedures are as follows: 

1. Establish probable cause. Prior to ordering restriction of a Soldier, the commander 

must have probable cause, that is, reasonable belief that an offense triable by courtmartial 

has been committed, that the person to be restrained committed it, and the 

restriction is required by the circumstances. 

2. Notify the Soldier. Notify the Soldier orally or in writing that he or she is under 

restriction. The notification must be delivered by the person imposing the 

restriction or by his or her representative. 

3. Make a written record. Make a written record of the exact terms of the restriction. It 

is advisable to have the Soldier sign an acknowledgement that he or she has received 

notice of the terms and limits of the restriction. 

4. A restriction is not a punishment. UCMJ, Article 13 and RCM 304(f) prohibit the use 

of restriction to punish a Soldier prior to trial. Restriction should only be as 

rigorous as is necessary to ensure the Soldier’s presence or to prevent future 

misconduct. 

5. Consequences of restriction. There are three important consequences when a Soldier 

is placed under restriction: 

probable cause 

reasonable grounds that 

an offense has been 

committed 

• Restriction starts the 120-day speedy trial clock, even though charges may not yet 

be preferred 

• The sentencing authority will be informed of and take into consideration any 

restrictions the accused has been under when determining an appropriate sentence 

• If the terms of restriction are so onerous as to constitute a restriction tantamount 

to confinement, the restricted Soldier may receive administrative credit against the 

adjudged sentence. 

Disposition 

You may not understand why a court imposes a particular sentence. A court may hear 

evidence not known to you, or information available to you may not be presented or 

admissible at trial. The court-martial is responsible for determining the sentence. The 

members determine a sentence based on evidence, and it must serve: 

• The ends of good order and discipline in the military 

• The needs of the accused 

• The welfare of society. 

With these sentencing goals in mind, commanders must become familiar with the 

background of the offense and the offender in determining the disposition of the case. A 

minor offense does not merit severe punishment and may often be best handled by the 

commander under the provisions of UCMJ, Article 15, or by administrative means. A more 

serious offense may warrant a court-martial. The commander must consider all factors 

of the offense. 

An accused’s performance in the civilian and military communities often shows his 

or her character and potential for rehabilitation. Commanders should generally treat a 

first-time offender more leniently than they would a repeat offender. They should talk to 

the Soldier’s supervisors and review personnel records, to decide what action will most 

benefit the Soldier and the Army. For example, if a commander considers the offense to 

be serious but does not believe the accused should be punitively discharged, the commander 

may recommend trial by a court-martial with no authorization to impose a punitive 

discharge.


In deciding what punishment to impose, a commander should consider: 

• Character and military service of the accused. What kind of Soldier is he or she? 

• Nature and circumstances of the offense. What is the effect on morale, health, safety, 

welfare, and discipline? 

• Appropriateness of the punishment to the accused or offense. Is the maximum 

punishment really appropriate? 

• Possible motives of the accuser. Treat an accuser respectfully, but treat the accusations 

with healthy skepticism. 

• Reluctance of the victim or others to testify. If witnesses refuse to come forward, 

another punishment may be appropriate. 

• Cooperation of the accused in apprehending or convicting others. If the accused agrees 

to help law enforcement apprehend others, leniency or clemency may be 

appropriate. 

TABLE 3.2 

Maximum Punishment Chart


• Availability and admissibility of evidence. Your judge advocate will be able to tell 

you how strong your case is, based on the evidence, and whether some evidence 

may be excluded. 

• Who has jurisdiction over the accused and offenses? In some cases, who has jurisdiction 

over a case is an issue. 

Review and Appeal 

The court-martial presents the sentence to the court-martial convening authority for 

approval. The convening authority may reject the finding of guilty or reduce the sentence. 

After the convening authority’s action, the next step depends on the sentence. If the Soldier 

received a punitive discharge or confinement for one year or more and has not waived 

appellate review, the Army Court of Military Review (ACMR) in Washington, DC, 

automatically reviews the case. Senior judge advocate officers sit on the ACMR. If they 

reject the Soldier’s appeal, the Soldier may further appeal the case to the United States 

Court of Military Appeals (CMA), also in Washington, DC, which consists of five civilian 

judges. Finally, if CMA rules against him or her, the Soldier may ask the United States 

Supreme Court to hear the case. 

NOTE: Due to the high visibility a court-martial can bring to a command, many 

SJAs will not recommend trial by court-martial except for the most serious of 

criminal offenses, or unless the accused admitted to the offense in a sworn 

statement during the CID or military police investigation, or unless the prosecution 

has irrefutable evidence. Even then, the SJA will also consider the accused’s rank, 

time of service, and military achievements. For example, a senior NCO or officer 

eligible for retirement would probably be recommended for administrative 

separation rather than trial by court-martial if the offense is not severe with 

criminal intent.


unlawful command 

influence 

attempted illegal 

influence by 

commanders on judicial 

proceedings 

Unlawful Command Influence 

Commanders must watch that they do not exert influence on proceedings in unlawful ways. 

The following are the “10 Commandments” of unlawful command influence: 

1. The commander may not order a subordinate to dispose of a case in a certain way 

2. The commander must not have an inflexible policy on disposition or punishment 

3. The commander, if he or she is the accuser, may not refer the case 

4. The commander may neither select nor remove court members in order to obtain a 

particular result in a particular trial 

5. No outside pressures may be placed on the judge or court members to arrive at a 

particular decision 

6. Witnesses may not be intimidated or discouraged from testifying 

7. The court decides punishment—an accused may not be punished before trial 

8. The commander should recognize that subordinates may “commit” command 

influence that will be attributed to the commander, regardless of his or her 

knowledge or intentions 

9. The commander may not have an inflexible attitude toward clemency 

10. If a mistake is made, raise the issue immediately. 

Search and Seizure Procedures 

The US Constitution protects every citizen from unreasonable searches and seizures. The 

right to privacy is not absolute, however. Courts have balanced individuals’ rights against 

society’s needs and have established rules for determining when a search is reasonable 

and lawful. Commanders may lawfully seize Soldiers’ property in their units after a legal 

search, inspection, or inventory. An unlawful search may violate a Soldier’s rights, however, 

and result in seized items being inadmissible in a court-martial. The evidence obtained 

from unreasonable searches may not be used in a trial. This discourages indiscriminate 

invasion of privacy by government officials. Under military law, senior commanders may 

authorize searches if they determine such searches will not violate Soldiers’ rights. A courtmartial 

may well review such decisions, however. Before any search or interrogation, Soldiers 

must be warned of their rights. 

Probable Cause to Search 

A commander may 

direct a search of any 

person or property in a 

place under his or her 

control only if probable 

cause exists. 

A commander may direct a search of any person or property in a place under his or her 

control only if probable cause exists. A company commander may authorize health-andwelfare 

inspections in company areas, but only post commanders may authorize searches 

or apprehensions in government quarters. A probable-cause search requires both of the 

following: 

• The commander must have a reasonable belief that evidence of the crime is on 

the person or at the place to be searched 

• The information and its source must be reliable. 

To establish probable cause, commanders need more than a suspicion, but they need not 

have absolute proof. In other words, probable cause lies between suspicion and knowledge. 

The commander must conclude on the basis of information presented that the contraband 

or evidence of a crime is at that time likely to be in the possession of the suspect or on 

the premises to be searched. The commander’s determination that probable cause exists


must be reasonable and based on facts. It may not be based solely on others’ conclusions. 

A CID agent’s, first sergeant’s, or informant’s awareness of sufficient facts to provide probable 

cause is unimportant unless the commander who orders or authorizes the search receives 

those facts. That commander must believe the person furnishing the information and the 

information are reliable before probable cause can exist. Most post policies will require the 

unit commander to request SJA to issue an opinion on the proposed probable cause search 

to ensure the search is not illegal. The following examples are situations in which a 

commander would have probable cause to search. 

Example 1 

A reliable person informs the commander that he saw the suspect earlier that 

night with hashish. The commander trusts the informant because of their past 

association. The commander also believes the information is accurate because the 

informant saw the incident firsthand. The commander authorizes a search of the 

suspect’s person. 

This is a lawful search. The commander knew the informant and believed 

his information to be reliable. 

One of the fastest ways 

to ruin your 

commander’s chances of 

a clean UCMJ 

proceeding is for you, 

the platoon leader, to 

conduct an illegal search 

or botch a legal search 

when assisting your 

commander. 

Example 2 

A person whose reliability is unknown informs the commander that the suspect is 

a drug pusher. The informant says that the accused has said that he is going to 

the city to make a “buy,” he will return by train at 1900 or thereabouts, he will be 

carrying a brown suitcase, and he will go to room 213 in the barracks to make his 

sale. The commander advises CID of these facts, and they in turn place the depot 

under surveillance. At 1900, the suspect steps off a train arriving from the city. He 

is carrying a brown suitcase. He immediately takes a taxi to the barracks and goes 

directly to room 213. The CID advises the commander, and he authorizes a search 

that produces a large quantity of drugs. 

The search is lawful. Although the commander had no prior knowledge of 

the informant’s reliability, so much of the information he supplied proved to be 

correct that the commander had good reason to believe that the rest of the 

information was also reliable. 

When Probable Cause Is Not Required 

The following paragraphs address searches that do not require probable cause to be lawful. 

Searches Incident to Lawful Apprehension 

A Soldier may be searched when and where he or she is legally apprehended. The point of 

such a search is to discover weapons and prevent destruction of evidence. The search is 

limited to the Soldier’s person and the area within his or her immediate control. For 

example, the area within the Soldier’s immediate control might include an open wall locker 

within reach, but it might not include the entire room. A complete search of the passenger 

compartment of an automobile is permissible, however, even if the apprehended Soldier 

has been removed from the vehicle and cannot return to it.


Searches of Government Property 

A search of government property does not require probable cause unless the person to 

whom the property is assigned or issued has a reasonable expectation of privacy. Generally, 

a person does not have a reasonable expectation of privacy in regard to government property 

that is not issued for personal use. 

Searches by Consent 

Probable cause is not necessary when a person freely consents to the search. Because consent 

is a waiver of the constitutional right of freedom from unreasonable searches, the 

government must be able to produce clear and convincing evidence that the consent was 

voluntary and not a submission to authority. Commanders should have a witness to a 

Soldier’s consent to a search. If the consent becomes an issue at a trial, the witness can 

verify its nature. If the search then uncovers evidence of criminal conduct, the evidence 

will be admissible at a trial. To establish voluntary consent, the suspect should be informed 

of both of the following: 

• The legal right to withhold consent 

• The fact that any evidence found during the search can be used against the suspect. 

The following examples are situations that lack probable cause to search. 

Example 1 

A CID agent calls the commander and states that he has apprehended one of the 

post’s Soldiers at the railroad station with marijuana on his person. The agent 

requests authority to search the suspect’s living area. Based solely on this 

information, the commander authorizes a search of the suspect’s wall locker, 

where the agent finds more marijuana. 

The search is unlawful. The commander had no evidence from which to 

reasonably conclude that the suspect had marijuana in his wall locker, which is 

located some distance from his place of apprehension. The commander must have 

more than mere suspicion. 

Example 2 

A reliable person informs the commander that three weeks ago he saw marijuana 

in the suspect’s footlocker. Based solely on this information, the commander 

authorizes a search of the suspect’s footlocker. 

This search is also unlawful. Since the reported possession was far removed in 

time, the commander had no valid reason to believe that the suspect still had any 

marijuana. Had the informant stated that he saw the suspect with marijuana in his 

footlocker that same day, probable cause would exist as the basis for a lawful search. 

Example 3 

A larceny occurs in the barracks, and a Soldier reports $500 and a dress missing. 

Three days later, Private Smith, the victim’s roommate, buys a stereo from the 

post exchange for $350. The victim, suspicious of her roommate, informs the 

commander. Based solely upon this information, the commander authorizes a 

search and discovers $200 and the dress in Private Smith’s wall locker.


The search is unlawful. Suspicion alone does not constitute probable cause. 

The commander should have continued the investigation until more information 

was uncovered, such as a report that another Soldier had seen the victim’s dress 

in the suspect’s wall locker. 

Seizures 

Evidence in open view or in a public area such as a dayroom or an open field may be lawfully 

seized without probable cause and without consent. The Fourth Amendment prohibits 

unreasonable seizure of the person, however. An unreasonable seizure may result in the 

evidence being inadmissible in a court-martial. 

Contacts and Stops 

Contact between an official and a Soldier is frequently not considered detention and 

therefore not subject to the Fourth Amendment. Many contacts do not result from suspicion 

of criminal activity. Examples of lawful contacts include questioning witnesses to crimes 

and warning pedestrians that they are entering a dangerous neighborhood. These types 

of contacts are entirely reasonable, permissible, and within the normal activities of law 

enforcement personnel and commanders—they are not detentions in any sense. 

Officers, NCOs, and military police (MPs) may initiate contact with persons in any place 

the officers, NCOs, or MPs are lawfully situated. It is difficult to define when a person is 

lawfully situated. Generally, this includes inspecting the barracks, making a walk-through 

of the barracks or unit area, and presence in any place for a legitimate military purpose. 

An officer, NCO, or MP who reasonably suspects that a person has committed, is 

committing, or is about to commit a crime has the obligation to stop that person. He or 

she may stop both pedestrians and vehicle occupants. If the person stopped is a suspect to 

be questioned, the official should read him or her Article 31 and the counsel warnings. 

The stop must be based on more than a hunch. The official making the stop should be 

able to state specific facts to support the decision to stop an individual. 

Apprehensions 

Any officer, warrant officer, NCO, or MP may apprehend individuals with probable cause. 

Probable cause to apprehend requires the following: 

• A reasonable belief that a crime is being committed or has been committed 

• A reasonable belief that the person being apprehended is guilty of a crime. 

An example of probable cause to apprehend is when you or another reliable person have 

seen someone violate UCMJ, such as using marijuana, assaulting someone, breaking 

another’s property, or being drunk and disorderly. Probable cause requires a commonsense 

appraisal of all available facts and circumstances. 

As a new lieutenant, you may apprehend a Soldier anywhere and anytime—the only 

limitation is that you must have probable cause. To do so, you should identify yourself as 

an officer and show your ID card if you’re not in uniform. Tell the Soldier you are 

apprehending him or her and explain the reason, such as disorderly conduct, assault, or 

possession of marijuana. You may use help. Read the Soldier his or her Article 31 rights, 

preferably from a Rights Warning Card, as soon as possible. 

If the Soldier resists apprehension by running away or assaulting you, enlist others to 

help catch him or her. The Soldier may be prosecuted for resisting apprehension or 

disobeying an order. You may detain civilians until military or civilian police arrive. 

Visit your PAC office or 

contact your SJA for an 

Article 31 Rights 

warning card.


Generally, as long as there is probable cause, no arrest warrant is required in the military. 

There is one important exception, however: A warrant is required for any apprehension 

in a private dwelling, such as on-post family quarters, the bachelor officer quarters (BOQ), 

the bachelor enlisted quarters (BEQ), or off-post quarters. The barracks and field 

encampments are not considered private dwellings; therefore, no special authorization is 

needed to apprehend someone there. 

If the person to be apprehended is in a private dwelling, the apprehending officer must 

get authorization from a military magistrate or the commander with authority over the 

private dwelling (usually the installation commander). To apprehend a person at off-post 

quarters requires coordination with civilian authorities. 

commander’s 

authority 

the authority of a 

commander to conduct 

a lawful inspection or 

other act 

Inspections 

Search and seizure requirements do not limit commander’s authority to conduct 

inspections. The primary purpose of inspections is to ensure the unit’s security, military 

fitness, and order and discipline. Orders for urinalysis are a permissible part of a valid 

inspection. An inspection can include an examination to locate and confiscate unlawful 

weapons or contraband as long as the inspection is not a pretext for a search—that is, the 

primary purpose of an inspection cannot be to obtain evidence for use in a trial or other 

disciplinary proceeding. This type of inspection is often referred to as a health-and-welfare 

inspection. An inspection for weapons or contraband may not be proper if any of the 

following occurs: 

• The inspection immediately follows a report of a specific offense in the unit and 

was not scheduled before the report 

• Specific individuals are selected for inspection 

• People are inspected differently. 

Evidence discovered during a legitimate inspection may be seized and admitted at a 

court-martial. 

Inventories 

When a Soldier is absent without leave, is about to be confined, or is detained by civilian 

authorities, an inventory of that Soldier’s personal belongings is required. As with an 

inspection, an inventory may not be a pretext for search. Evidence obtained as a result of 

a lawful inventory is admissible in a court-martial. 

Soldier Rights Under Article 31 

The military justice system provides certain fundamental rights and safeguards to Soldiers 

that must be considered in any case involving criminal conduct. 

Article 31 of the UCMJ grants every Soldier specific rights: 

• No person subject to this chapter may compel any person to incriminate himself 

or herself or to answer any question the answer to which may tend to incriminate 

him or her. 

• No person subject to this chapter may interrogate, or request any statement from, 

an accused or a person suspected of an offense without first informing him or her 

of the nature of the accusation and advising him or her that he or she does not 

have to make any statement regarding the offense of which he or she is accused or 

suspected and that any statement made by him or her may be used as evidence 

against him or her in a trial by court-martial


• No person subject to this chapter may compel any person to make a statement or 

produce evidence before any military tribunal if the statement or evidence is not 

material to the issue and may tend to degrade him or her. 

• No statement obtained from any person in violation of this article, or through the 

use of coercion, unlawful influence, or unlawful inducement may be received in 

evidence against him or her in a trial by court-martial. 

Presumption of Innocence 

Under our legal system, people are presumed innocent until a court finds them guilty 

beyond a reasonable doubt. A court may make a fair and just decision only after it has 

heard all the evidence relating to the guilt or innocence of an accused. 

The Right to Counsel 

The United States Constitution prohibits forcing an accused to incriminate himself or 

herself and provides that anyone suspected of committing a crime has the right to consult 

with a lawyer. Congress realized that Soldiers may not understand their rights and may 

be intimidated by the mere presence of a superior. Therefore, under military law, no one 

may question a suspect without first determining that the suspect understands the nature 

of the offense, the right to remain silent, and the right to counsel. If investigators violate 

these rights, the evidence obtained may not be used against the accused. Commanders must 

protect their unit members’ rights and preserve the government’s case by ensuring that 

everyone in contact with the accused understands and complies with UCMJ, Article 31, and 

right-to-counsel requirements. 

All leaders should carry a 

laminated GTA 19-6-5, 

often referred to as the 

Verbal Rights Warning 

Card. This card contains 

the proper procedure for 

warning or advising 

Soldiers of their rights if 

they are suspected or 

accused of an offense. 

The Soldier’s Right to Request Chapter 10 in Lieu of Court-Martial 

At any time before the convening of a court-martial, the accused can send a request for 

administrative separation under AR 635-200 Chapter 10 through his or her counsel to 

the court-martial convening authority. If the CMCA approves it, the court-martial process 

will cease and the accused will be immediately reduced to E-1 rank and separated under 

other than honorable (UOTH) characterization of service. 

SJAs will generally recommend to the CMCA approval of requests for Chapter 10 in 

lieu of court-martial because it resolves the case immediately and removes the need for a 

lengthy court-martial. This is especially the case if the government’s counsel does not believe 

it has a good chance to obtain a conviction under a court-martial. 

Prompt Action 

The Constitution and UCMJ, Article 10, guarantee the right to a speedy trial. The accused 

Soldier has the right to be advised of the charges against him or her as soon as possible. 

Normally, the accused must come to trial within 120 days of either arrest or preferral of 

charges, whichever is earlier. An accused may not remain in continuous pretrial confinement 

more than 90 days for the same or related charges. A speedy trial assists both the government 

and the accused. Testimony given soon after an incident is more reliable than that given 

after a long period. Also, witnesses are likely to leave the area during a delay. Courts-martial 

may subpoena Soldiers who have moved as a result of a permanent change of duty station 

(PCS) to return to testify. 

The provost marshall will have strict guidelines as to what offenses or circumstances 

warrant pretrial confinement. In most cases, the provost marshall will not authorize pretrial 

confinement unless the Soldier is a threat to self or others and has committed the most 

serious felony offense, such as murder or rape. 

Commanders must 

consult with their SJA 

and carefully weigh the 

option for pretrial 

confinement and 

imposing restrictions on 

the accused. A good 

defense counsel could 

get a client credit for 

“time served,” resulting 

in a reduced sentence.


Nonjudicial Punishment—Article 15 

Provisions of UCMJ, Article 15 

Under the provisions of UCMJ, Article 15, commanding officers may impose nonjudicial 

punishment on Soldiers who commit minor offenses within their units. These Soldiers 

include commissioned officers, warrant officers, and other Soldiers. Nonjudicial punishment 

is not the same as nonpunitive disciplinary measures. To be punished under an Article 

15, Soldiers must violate an article of the UCMJ; that is, their conduct must be criminal. 

The crime must be minor, however, for nonjudicial punishment to be appropriate. All 

circumstances surrounding the offense and the offender’s personal history should be 

considered. 

Authority to Impose an Article 15 

Your commanding officer 

and battalion 

commander will likely 

solicit input from you as 

the platoon leader for 

the accused – as well as 

input from the accused’s 

entire NCO leadership – 

on matters of character, 

performance, and 

recommendation for 

punishment. 

Any commanding officer, including a warrant officer in command, may impose an Article 

15 unless a superior commander has restricted or withheld the authority to do so. For 

example, general officers in command often reserve to themselves the authority to impose 

nonjudicial punishment upon their officers. Many field grade commanders withhold the 

authority to dispose of certain UCMJ offenses such as drug use and driving under the 

influence of alcohol. Only commanding generals and general court-martial convening 

authorities may delegate Article 15 authority. In no case may noncommissioned officers 

impose nonjudicial punishment, even on behalf of commanders. 

Company-grade officers in command may impose nonjudicial punishment as outlined 

in Table 3.3. If a company-grade officer does not feel that company-grade punishment is 

adequate for an offense, he or she should forward the case to the field-grade commander 

with a request that the field commander exercise authority under the provisions of UCMJ, 

Article 15. The company-grade commander may not, however, recommend what 

punishment the offender should receive when the Article 15 packet is forwarded to the 

field-grade commander for disposition. 

A field-grade officer may return a case to a company-grade officer for disposition. In 

no case may a superior direct that a subordinate commander take action under Article 

15. Nor may the superior dictate to a subordinate the type of punishment to administer 

under Article 15. A field-grade officer in command may impose punishment as outlined 

in Table 3.3. 


e 

Consider whether military professionals are legally, as well as morally, held to a 

higher standard of conduct than their civilian counterparts. If so, how does the 

court-martial process reflect this? 

Conduct of an Article 15 

Before taking action under Article 15, the commander must be satisfied that the misconduct 

was a UCMJ offense and that an Article 15 is appropriate in view of the Soldier’s record. 

To determine if a crime has been committed, commanders should consult the 

subparagraphs under the appropriate punitive article in the Manual for Courts-Martial, 

Part IV, and always seek an opinion from SJA before proceeding with an Article 15. An 

imposing commander or a designated subordinate (officer or noncommissioned officer in 

the pay grade of E-7 or above) will inform the accused of:


TABLE 3.3 

Maximum Nonjudicial Punishments Under Article 15 (Formal Proceedings) 

Commanding Admonition Extra Correctional Forfeiture Reduction 

Officer or Reprimand Restriction Duties Custody of Pay in Rank 

Company Grade 

E-5 to E-9 Yes 14 days 1 14 days 1 No 7 days No 

E-1 to E-4 Yes 14 days 1 14 days 1 7 days 2,3 7 days To one grade 

(E-1 to E-3) 

lower 

Field Grade 

E-5 to E-9 Yes 60 days 45 days No 1 / 2 pay per To one grade 

month for lower if within 

2 months promotion 

authority 4 

E-1 to E-4 Yes 60 days 45 days 30 days 1 / 2 pay per To one or 

month for more grades 

2 months lower 4 

1. Restriction and extra duty may be combined, but in such a case, the total may not exceed the maximum allowed 

for extra duty. 

2. Enlisted Soldiers with a pay grade of E-4 may not be placed in correctional custody, but if their rank is reduced to a pay grade 

of E-3, they may be placed in correctional custody as a part of the same punishment. 

3. Enlisted Soldiers with pay grades of E-1 to E-3 may be confined for 3 days on bread and water when attached to or embarked 

on a vessel. 

4. The promotion authority for pay grades E-7, E-8, and E-9 rests with Headquarters, Department of the Army; AR 600-200 (paragraph 

7-36) prohibits reduction in rank for misconduct of Soldiers in these pay grades. 

• The nature of the alleged offenses and the UCMJ articles violated 

• The intent to use summarized proceedings under UCMJ, Article 15 

• The maximum punishment 

• The right to remain silent 

• The right to demand trial 

• The consequences of a demand for trial 

• The right to confront witnesses, examine adverse evidence, and submit matters in 

defense, extenuation, and mitigation 

• The right to appeal. 

The accused must have reasonable time (normally 24 hours) to decide whether to demand 

trial or gather matters for defense, extenuation, and mitigation. He or she has no right to 

consult with legal counsel or to have a spokesperson at the proceedings. The accused also 

may not request an open hearing. 

Summarized Proceedings 

Commanders may use summarized proceedings when dealing with the misconduct of enlisted 

Soldiers. Punishment under summarized procedures will not exceed 14 days of restriction, 

14 days of extra duty, an oral reprimand or admonition, or any combination of these. 

Summarized proceedings are legibly recorded on DA Form 2627-1, which remains in 

the local unit personnel files for two years or until the Soldier transfers out of the unit, 

whichever occurs first. The results of a summarized Article 15 are not recorded on the 

Soldier’s enlisted record brief (ERB) as is the case with Article 15s. 

NOTE: The forms needed for administering UCMJ actions can be found on most 

installation servers using the Delrina FormFlow application. You can also review 

and download FormFlow forms from the Army website and the PERSCOM website.


DA Form 2627 is the 

Record of Proceedings 

under UCMJ. It informs 

the Soldier of the charges 

against him or her and 

provides the Soldier with 

the opportunity to decide 

whether to submit to an 

Article 15 or take the 

matter to a court-martial. 

Formal Proceedings 

Formal proceedings for an Article 15 under UCMJ begin with the initial notification and 

conclude with the appeals process. 

Notification 

AR 27-10, Appendix B, contains a guide for nonjudicial punishment proceedings. The first 

step in conducting an Article 15 is to notify the Soldier both orally and in writing. The 

commander or a designated subordinate (officer or noncommissioned officer in the grade 

of E-7 or above) must inform the Soldier of the commander’s intent to initiate the process. 

The initial notification must include a brief statement of the offense. If you are performing 

the notification, describe the offense to the Soldier in simple language and then record 

the discussion in Items 1 and 2 of DA Form 2627. Use the model specification forms in 

the Manual for Courts Martial (MCM), Part IV, to draft Item 1 on the form. You must 

also tell the Soldier the maximum punishment that he or she could receive under Article 15 

and that further misconduct can result in administrative separation. 

Acknowledgement 

The accused must acknowledge notification by completing DA Form 2627, Item 3. The 

subsequent course of the proceeding depends upon the accused Soldier’s decisions regarding 

the following: 

Demand for court-martial. If the Soldier demands trial by court-martial, the commander 

must terminate the Article 15 and decide whether to prefer court-martial charges. 

Waiver of court-martial and failure to submit matters or to demand a hearing. If the 

accused chooses this option, the commander may determine his or her guilt and 

immediately impose punishment. 

Waiver of court-martial and hearing with submission of matters. If the accused chooses 

this option, the commander must consider the matters before deciding whether to impose 

punishment. If the matters persuade the commander that the accused is innocent or that 

there is a valid reason for not punishing the Soldier, the commander simply terminates the 

Article 15. If, after considering the matters, the commander is convinced beyond a 

reasonable doubt that the accused is guilty and nonjudicial punishment is appropriate, the 

commander may impose it. 

Waiver of court-martial and demand for hearing. In this case, the commander must 

arrange for and conduct a hearing before deciding whether to impose nonjudicial 

punishment. Often, commanders conduct hearings in their offices. They must personally 

conduct the hearing except in rare circumstances in which doing so is not practicable. In 

such a case, the commander must appoint another officer to conduct the hearing. 

Afterwards, the appointed officer should submit a summary and written recommendations 

to the commander. 

The commander should initiate the hearing by advising the accused of his or her rights 

under UCMJ, Article 31. During the hearing, a spokesperson may represent the accused. 

That person need not be an attorney, and his or her participation in the case must be 

voluntary. The government will not pay travel fees or other costs to ensure the spokesperson’s 

presence at the hearing. Neither the accused nor the spokesperson may examine or crossexamine 

witnesses without the commander’s permission. The accused or the spokesperson 

may brief the commander, however, on the relevant issues and areas of suggested inquiry. 

The commander must explore those issues and areas when questioning witnesses. 

The accused may indicate which witnesses he or she prefers at the hearing. If those 

witnesses are reasonably available, the commander must arrange for their presence. The


government will not pay witness or transportation fees to ensure their presence. Reasonably 

available witnesses include those on duty at the installation and those whose presence can 

be arranged without spending government travel funds and whose attendance at the hearing 

will not materially delay the proceedings. The accused may waive personal appearance at 

the hearing and instead submit written matters to the commander for consideration. The 

commander should give such matters due consideration before deciding the case. 

Punishment 

Table 3.3 outlines the maximum nonjudicial punishments authorized under Article 15. 

Note that a field-grade commander may impose greater punishment than a company-grade 

commander. A field-grade commander and a company-grade commander may not both 

impose an Article 15 for the same act of misconduct. Nor will a commander ordinarily 

impose an Article 15 for the same offense over which a civil court has exercised jurisdiction 

or an offense for which the commander plans to recommend a court-martial. Commanders 

must also be aware of certain limitations on punishment. They must base any forfeiture 

of pay upon the grade to which an offender is reduced and not upon his or her original 

grade, even if the reduction is suspended. Commanders may combine restriction and extra 

duties, but only for the maximum time allowed for extra duties alone. In no case may a 

commander combine restriction or extra duties with correctional custody. The commander 

must personally inform the offender of the punishment. At that time, the commander may 

explain any factors considered when he or she decided on the punishment. The commander 

should also inform offenders of their right to appeal and explain how to do so. 

Legal Implementation of the 

Army’s Homosexual Policy 

The Department of Defense’s (DoD) policy on homosexuality—often referred to as “don’t 

ask, don’t tell”—has caused a great deal of comment. This mirrors a general debate in 

American society over homosexuality. The general policy is that a person’s sexual orientation 

is considered a personal and private matter and is not a bar to entry or continued service 

unless manifested by homosexual conduct. 

The Army does not ask applicants for enlistment, appointment, or induction whether 

they are heterosexual, homosexual, or bisexual. The Army also does not require applicants 

to reveal whether they have engaged in homosexual conduct unless it receives independent 

evidence indicating that the applicant has engaged in such conduct or unless the applicant 

volunteers a statement that he or she is a homosexual or a bisexual, or words to that 

effect. Homosexual conduct, however, is grounds for barring entry into and for separation 

from the Army. 

Military policy is focused on a Soldier’s conduct, not on his or her sexual orientation— 

on actions, not appearances. The Army requires articulable facts as a basis for discharging 

a Soldier. These facts are either statements, acts, or marriage (SAM). 

A Soldier’s declaration that “I’m gay” or “I’m a lesbian” would be an example of a 

statement. Acts would include bodily contact to satisfy sexual desire, kissing, handholding, 

or slow dancing with a member of the same sex. Marriage includes actual or attempted 

marriage with a member of the same sex. 

Two special rules govern whether the Army may retain a Soldier found to have engaged 

in homosexual conduct: 

homosexual conduct 

a homosexual act; a 

statement by a Soldier 

that demonstrates a 

propensity or intent to 

engage in homosexual 

acts; the solicitation of 

another Soldier to 

engage in a homosexual 

act or acts; a 

homosexual marriage or 

attempted marriage 

Special Rule 1. A Soldier’s statement that he or she is homosexual is generally taken 

as a fact and will result in separation proceedings. If the Soldier can convince the 

Administrative Board, however, that he or she will not participate in further homosexual 

acts, he or she may be retained.


Special Rule 2. Soldiers who make false statements that they are homosexual or 

that they have committed homosexual acts to avoid a military obligation have 

violated Army policy and betrayed their military duty. Such Soldiers may be subject 

to action under the UCMJ. 

Inquiries 

Certain guidelines govern the conduct of inquiries into whether Soldiers have committed 

homosexual conduct: 

• Only commanders can initiate inquiries 

• There must be credible evidence (SAM) 

• Informal inquiries are preferable 

• Formal inquiries can be conducted at the Department of the Army level only. 

As with most policy issues, you should always check with your local judge advocate general 

(JAG) office and your commander when you are not sure what you should do next. 

When you are interviewing a Soldier, make sure you advise the Soldier of his or her 

rights against self-incrimination (Article 31, UCMJ) and be sure the Soldier understands 

the DoD policy on homosexual conduct. 

Evidence 

Before you react to allegations, you must make sure the evidence is credible. Don’t go on 

a fishing expedition. If the source of the allegations is not credible, then note the source 

as such and stop any further actions. Suspicion, opinions, and rumors are not credible 

evidence. The mere fact that a Soldier has read homosexual materials or gone to a 

homosexual establishment, such as a “gay bar,” is not credible evidence. Nor are statements 

a Soldier has made when obviously trying to avoid duty or get out of the Army. 


e 

If a Soldier is seen going into a gay bar, why can’t it be assumed that he or she is 

a homosexual? What about a Soldier who marches in civilian clothes in a gay 

rights parade? 

Confidentiality 

In all disciplinary action, you must ensure confidentiality where appropriate. Talking about 

others without any official findings is simply spreading rumors. This undermines your 

own authority. Remember that statements a Soldier makes to a chaplain, attorney, or spouse 

are considered confidential. 

Undertaking an investigation without the commander’s permission or accusing a 

Soldier of engaging in homosexual conduct when you have no credible evidence is a 

violation of the DoD policy on homosexual conduct. 

Anti-Harassment Policy 

The Army does not tolerate harassment of a Soldier by others simply because they believe 

the Soldier is a homosexual. Defense Department policy provides that in such cases, the 

Soldier must seek out help from his or her chain of command, a military chaplain, the


inspector general’s office, or the JAG. The fact that a Soldier has been harassed for alleged 

homosexuality is not grounds for an investigation of the Soldier for homosexual conduct 

unless there is credible evidence of such conduct. Individuals harassing Soldiers for alleged 

homosexuality are themselves subject to investigation by military police or by the criminal 

investigation division. The investigation will focus only on the allegations of harassment 

or threats, unless there is credible evidence of homosexual conduct on the Soldier’s part. 

To review the Army’s policy on homosexual conduct: 

• You must have credible evidence of homosexual conduct to pursue actions against 

an accused Soldier 

• Only a Soldier’s commander may conduct fact-finding inquiries 

• Accused Soldiers have rights against self-incrimination 

• The Department of the Army must approve any substantial investigation 

• The Army will investigate harassment of a Soldier for perceived or real homosexual 

conduct as a separate action not related to whether the allegations of homosexual 

conduct are true. 

Extremist Organizations 

Participation in extremist organizations is inconsistent with military service. This includes 

organizations or activities that advocate racial, gender, or ethnic hatred or intolerance. 

Commanders have widespread authority to prohibit Soldiers from participation in these 

activities. 

The prohibitions against participation in extremist activities include: 

• Attending public demonstrations or rallies 

• Attending in uniform 

• Fundraising 

• Recruiting or training for the organization 

• Holding a visible leadership role in the organization 

• Distributing the organization’s literature. 

extremist 

organizations 

organizations that 

advocate racial, gender, 

or ethnic hatred or 

intolerance 

Hazing Prohibitions 

Hazing is any conduct by a service member, regardless of rank, that is cruel, abusive, 

humiliating, impressive, demeaning, or harmful to another service member, regardless of 

rank. Hazing includes: 

• Abusive or harmful practical jokes 

• Branding 

• Tattooing 

• Body painting 

• “Blood wings” ceremonies 

• Forced consumption of alcohol. 

hazing 

conduct by a service 

member, regardless of 

rank, that is cruel, 

abusive, humiliating, 

impressive, demeaning, 

or harmful to another 

service member, 

regardless of rank


TABLE 3.4 

UCMJ, The Punitive Articles


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CONCLUSION 

Although commanders are the only ones who are granted UCMJ authority, as a 

lieutenant, you will find yourself playing important roles in the military justice 

system. Become familiar with the system and the Manual for Courts-Martial. Ally 

yourself with the unit’s staff judge advocate and learn from the experience of 

your company commander, your company’s first sergeant, and your platoon 

sergeant. Their advice and guidance will help you through the Article 15 and 

court-martial process for anyone in your platoon who violates the UCMJ. 

Before a Soldier’s sentencing, lieutenants must be prepared to make a recommendation 

to the company commander regarding punishment. Ask the accused’s 

NCO leaders (team leader through platoon sergeant) for their recommendation 

on punishment. It is important for both you and your platoon sergeant to be on 

“the same sheet of music” on the recommended punishment you forward to your 

commander. 

This will not always be the case, however. A young, inexperienced, and newly 

promoted E-5 team leader may want to be lenient on his E-4 team member who 

was a battle buddy and roommate before the E-5’s promotion. At other times, 

you as the platoon leader may see promise in a Soldier who has driven your NCOs 

to the limits of their patience. As a young lieutenant, always consider that your 

senior NCOs may know the Soldier better than you. If your NCOs make one recommendation 

to the commander, and you make another, it may indicate to your 

commander that a more serious problem exists between you and your NCOs. 

Now is the time to prepare. Unfortunate timing may place you in the middle 

of a UCMJ action for one of your Soldiers when you arrive at your first unit. You 

want to be ready. 

Learning Assessment 

1. List actions that employ the administration of military justice at the unit level. 

2. Identify the key elements of the judicial punishment process. 

3. Identify the inquiry process. 

4. Identify search and seizure procedures. 

5. Identify a Soldier’s rights under Article 31(b), UCMJ. 

6. Identify restriction procedures. 

7. Discuss unlawful command influence. 

8. Identify your role in the administration of nonjudicial punishment.


9. Identify the legal implications of the homosexual policy. 

10. Identify prohibition against membership and participation in extremist organizations. 

11. Identify hazing prohibitions. 

Key Words 

staff judge advocate 

trial counsel 

defense counsel 

adjudge 

restriction 

probable cause 

unlawful command influence 

commander’s authority 

homosexual conduct 

extremist organizations 

hazing 

References 

Field Manual 27-1, Legal Guide for Commanders. 13 January 1992. 

Uniform Code of Military Justice (United States Code, Title 10, Subtitle A, Part II, 

Chapter 47). 1950. 

Manual for Courts-Martial, United States. 2002.

The Uniform Code of Military Justice ■ 113

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