A summary court-martial, especially after January 1, 2019, isn’t really a court-martial at all. Effective January 1, 2019, as part of the Military Justice Act of 2016, a summary court-martial finding of guilty can never be a criminal conviction. Prior to this amendment to the Uniform Code of Military Justice (UCMJ), states, who are the primary users for criminal convictions (to deny civil rights, to enhance criminal penalties and so forth), had no clear guidance on whether a summary court-martial finding of guilty was a criminal conviction. Some states considered it to be a criminal conviction, while others did not.
A summary court-martial is good for only two things – reducing a military member in rank that cannot be reduced at Article 15 nonjudicial punishment and placing a military member in confinement (for up to 30 days). All this can be done without a military judge or jury and with no right to counsel. The summary court-martial process can be expedited. But if the accused does not plead guilty to the charges referred for trial by summary court-martial, the summary court-martial officer still has to call witnesses and the Military Rules of Evidence still apply.
Summary courts-martial are almost always used today as a plea bargaining tool to bring charges from a special or general court-martial where the finding of guilty will be considered a criminal conviction to a forum where a finding of guilty will not be considered a criminal conviction and at which the maximum punishments at substantially limited. Absent a plea agreement, the benefits of a summary court-martial are substantially outweighed by the burden of presenting evidence subject to the Military Rules of Evidence, especially now that a commander can send a case to a judge-alone special court-martial with substantially more punishment authorized and possibly less burdensome. Moreover, unlike a summary court-martial that can be refused by the service member, the judge-alone special court-martial can be directed and convened by the commander regardless of an accused’s desire for a jury a trial. However, the accused is entitled to a defense counsel at a special court-martial.
The Marine Corps regularly used a “Fast Track” offer for many years in drug cases, unauthorized absence cases, and other misconduct that was too serious for non-judicial punishment but likely not serious enough to spend the resources for a full-blown court-martial. In a “Fast Track” offer, charges were preferred and given to the accused with all of the evidence. The accused was directed to speak to defense counsel. The accused had two options: 1) accept summary court-martial and waive the right to an administrative separation board (thereby guaranteeing an other than honorable discharge) or 2) refuse the summary court-martial and the case would be referred for trial by special court-martial. The “Fast Track” really referred to the fact that these Marines would be out of the service within 30 days if they chose the summary court-martial / board waiver option. Many chose the “Fast Track” option because they wanted out of the Marine Corps.
A summary court-martial may be a reasonable option for service members facing court-martial charges. However, before deciding to accept a summary court-martial, the member must consult with an experienced military defense counsel.
Attorney Patrick Korody spend 10 years on active in the Navy JAG and was designated a Military Justice Specialist by the Judge Advocate General of the Navy. His office is located in Jacksonville, FL (near Naval Submarine Base Kings Bay, NAS Jacksonville, and Naval Station Mayport). He has represented members of the Navy, Air Force, Army, Marine Corps, Coast Guard, and National Guard throughout Florida and the United States. He offers a free consultation for military cases.