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In MilJus related news coverage, the story of the former Naval Academy quarterback acquitted at a 2006 court-martial, but convicted on conduct offenses and receiving no punishment, will be featured on tonight's 11 pm news on Baltimore's WJZ TV news. Here is a link to the preview of the story (page 2 of the video previews). According to the preview, the case is still winding its way through the post-trial review and administrative process. In light of the "no punishment" finding the case is likely in the shrouded in mystery Art. 69 review process.
A review of the JAGs' annual reports for FY 1997 to FY 2005 (all that are available on CAAF's website) shows that the Navy-Marine Corps has a disproportionately high number of Art. 69 review cases (Navy 175; Army 90) and a lower than average rate of relief granted (Navy 3.4% (and none in last 5 years); Army 5.5%). Considering that the Navy-Marine Corps system only has 20% more General/Special courts martial than the Army, the almost 100% difference in Art. 69 review numbers seems perplexing. Anyone have a theory . . . other than Guert's engine for military justice theory?
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Military justice research links
- 2008 Military Judges' Benchbook web site
- AFMAN 51-203, Records of Trial (1 Oct 1999)
- AFPD 51-2, Administration of Military Justice (7 Sep 1993)
- Air Force Instruction 51-201, Administration of Military Justice (21 Dec 07)
- Air Force Rules of Professional Conduct
- AR 27-10, Military Justice (16 Nov 2005)
- AR 27-26, Rules of Professional Conduct for Lawyers (1 May 1992)
- COMDTINST M5810.1D, Military Justice Manual (17 Aug 2000)
- Congressional Research Service, Statutory Interpretation: General Principles and Trends (March 30, 2006 ed.)
- Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States (2002) with 2006 supplement
- JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General (9 Nov 04)
- JAGINST 5810.2A, Military Justice Regulations (17 Sep 93)
- JAGMAN, JAGINST 5800.7E (20 Jun 07)
- Law Library Microform Consortium, Military Law Collection
- LOC military law collection
- Manual for Courts-Martial (2008 ed.)
- Manual for Courts-Martial, United States (2005 ed.)
- Manual of the Judge Advocate General (JAGMAN), JAGINST 5800.7E (20 Jun 2007)
- Military Justice, Army Regulation 27-10 (16 Nov 2005)
- UCMJ (as of 28 Jan 2008)
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- SCOTUSblog (aka, the greatest blog on the planet)
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- The Reporter [Air Force]
- This Court-Martial Sentences You To . . . [blog]
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11 comments:
Numbers do not lie. The 2005 annual report in 62 M.J. says it all. The active duty strength of the Army and Air Force was 855,321 for 2004 to 2005. The active duty strength of the Navy and Marine Corps was 542,970. The Army and Air Force certainly should have more cases requiring review pursuant to Article 66 right? Together the two services forwarded 1497 cases for Article 66 review. The Navy and Marine Corps forwarded 1835 cases for Article 66 review. For those who question my theory about the engine of Naval military justice, why does forty percent of our active military account for fifty-five percent of courts-martial requiring Article 66 review? Do the Navy and Marine Corps attract a greater criminal element? Perhaps the other services just dispose of criminal cases at lesser forums. The Army and Air Force held 1314 summary courts-martial. The Navy and Marine Corps 1968. Tomorrow I will post the statistics from last year's C.A.A.F. conference regarding clemency and parole. The Naval Clemency and Parole Board granted both clemency and parole in the single digits while their Army and Air Force counterparts doubled or tripled the rate of the Navy Board. Are convicted Sailors and Marines less deserving of clemency in the same way that they are more deserving of courts-martial? The answer to your Article 69 query No-Man, lies in the fact that the subject of your question, Sailors and Marines, are Sailors and Marines.
No Man,
Do I know you?
Guert,
I think one factor that has traditionally led to higher court-martial rates in the Navy and Marine Corps is the exercise of court-martial jurisdiction at lower levels. My understanding is that in the Army, a battalion commander can't convene a special court-martial empowered to impose a BCD. Do we have any Army lurkers who can confirm that, since almost all of our regular posters are current or former Marine, Navy, or Coast Guard judge advocates?
On the other hand, when I was a Marine TC, I used to regularly try cases referred by battalion COs. And, of course, every ship driver in the Navy can convene a special court empowered to adjudge a BCD.
Also, I don't know if this is still the case, but when I was a Marine TC many moons ago, it was actually easier for a battalion CO to get rid of a bad Marine by convening a SPCM than by initiating an admin discharge because the latter had to be routed through the general while the former could be handled without going up to even the regiment, much less the division, HQ.
Those may not be GOOD reasons for the differences among the services, but I think they go some way to explaining them.
How does that explain the greater number of summary courts-martial in the Navy and Marine Corps? Unfortunately, the lack of uniformity in the reports of the Judge Advocates General in the Annual Report hinders this discussion as they do not provide numbers for administrative boards for each service. But the Army reported 885 boards for FY 05 while the Navy, without the Marine Corps, reported 932 boards. The Army conducted 36,216 NJP's for its 492,728 soldiers. The Marine Corps held 13,286 NJP's for its 180,029 Marines. It does not appear that the Navy and Marine Corps fail to make use of lesser forums in disposing of violations of the UCMJ. Does anyone know where administrative discharge boards for each service are reported? Even these partial numbers support my thesis.
But don't forget that Pierce credit exists to deal with cases where a servicemember is both NJPed and court-martialed for the same misconduct. So those categories aren't entirely mutually exclusive. (I just looked it up. Surprisingly enough, Private Pierce was in the Army. United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).)
I wonder whether that 885 figure includes discharges in lieu of courts-martial, which I believe the Army calls Chapter 10s. Do we have ANY Army readers? If so, help!
Army battalion commanders can convene summary courts-martial but not special courts-martial.
Brigade commanders can convene SPCM, but not SPCM empowered to adjudge a BCD. Those have to go to the GCMCA.
As a matter of practice, I've never seen a brigade commander even convene a SPCM. The brigade legal and personnel staff isn't prepared for the administrative work behind a CM, so why go to the effort when you can forward it to the GCM (and have the BCD on the table)?
Maybe as a product of this, the Army MJ culture prefers the BCD-SPCMs and GCMs, which all have to be convened by GCMs.
Chapter 10s (Discharge in Lieu of Trial by Court-Martial) are purely administrative matters. I doubt that any court-martial statistics would capture these, except in the rare case when a Chapter 10 is approved after a CM but before final action.
Interesting. I tend to think of the Army as the service that does convene non-BCD specials. I've never seen one in a sea service.
Thank you, anonymous Army lurker!
That does confirm that the referral power is retained at a higher level in the Army than in the Marine Corps and Navy. I suspect that at least partially explains the divergent numbers.
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