Special Courts-Martial
The special court-martial can try any servicemember for any noncapital offense or, under
presidential regulation, capital offenses. Special courts-martial generally try offenses that are
considered misdemeanors.
A special court-martial can be composed of a military judge alone, not
less than three members, or a military judge and not less than three members. Contrary to
civilian criminal trials, the agreement of only two-thirds of the members of a court-martial is
needed to find the accused guilty. Otherwise, the accused is acquitted. There are no “hung
juries” in courts-martial.
Regardless of the offenses tried, the maximum punishment allowed at a
special court-martial is confinement for one year; hard labor without confinement for up to three months; forfeiture of two-thirds’ pay per month for up to one year; reduction in pay grade; and a
bad-conduct discharge.The accused is entitled to an appointed military attorney, a military
counsel of his or her selection, or he or she can hire a civilian counsel at no expense to the
government.
General Courts-Martial
A general court-martial is the highest trial level in military law and is usually used for the most
serious offenses. It is composed of a military judge sitting alone, or not less than five members
and a military judge.
It can adjudge, within the limits prescribed for each offense, a wide range
of punishments to include confinement; reprimand; forfeitures of up to all pay and allowances;
reduction to the lowest enlisted pay grade; punitive discharge (bad conduct discharge,
dishonorable discharge, or dismissal); restriction; fines; and, for certain offenses, death.
The accused is entitled to an appointed military attorney or a military counsel of his or her selection,
or the accused can hire civilian counsel at no expense to the government..
Prior to convening a general court-martial, a pretrial preliminary hearing must be conducted. This
investigation, known as an Article 32 preliminary hearing, is meant to ensure that there is a basis for
prosecution.
An preliminary hearing officer (PHO), who must be a commissioned officer and is normally a judge advocate, presides, and the accused has the same entitlements to counsel as in special courts-martial. However, unlike in a civilian grand jury investigation, where the accused has no access to the proceedings, the accused is afforded the opportunity to examine the evidence presented against him, cross-examine witnesses, and present his own arguments.
If the investigation uncovers evidence that the accused has committed an offense not charged, the PHO can recommend that new charges be added.
Likewise, if the PHO believes that evidence is insufficient to support probable cause for a charge, he can recommend that it be dismissed. Once the Article 32 hearing is complete, the PHO drafts a written report, which will be used by the commander, and his or her staff judge advocate, to determine how to dispose of the charges. The options include dismissing some or all of the charges, referring the charges for trial by Special Court-Martial, or forwarding the charges to a General Court-Martial Convening Authority with a recommendation that they be tried by General Court-Martial. Before charges can be referred to a General Court-Martial, the Convening Authority must receive written legal advice regarding the charges called Article 34 advice.
