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arinc corporal named Jones has been arged with several offenses, including un- ti'Uhorized absence, under Article 86 of the Mform Code of Military Justice, and
One man travels to exotic places, does exciting things, performs assigned duties. He wears a uniform and serves his coun- lrV and helps to enforce her current foreign Policies. He has affirmed the necessity of war ^nd the inevitability of national armed force, is the military man.
Another man drives a truck, delivers a ^by, sells insurance. He wears a double- oreasted suit, or a pair of blue jeans, depending °n his mood. He, like the military man, must Pay taxes and abide by the laws, but he vehemently and with impunity criticize ti’s government. He is the civilian man.
both are Americans, but they live by two different sets of rules and under two different ?ets of institutions. The spirit of John Locke ls Present in both systems, for the legal rights °f the individual are recognized in both. But 'Military society is goal-oriented. The military *,lan must look primarily toward the military defense of his country. Civilian society, on tie other hand, has a pluralistic orientation. 1 here is no overriding goal toward which the lr>dividual must work. Each civilian has his work and his own ultimate goals. A tversity of individual purposes exists. Two different sets of regulatory-legal-institutions aye been established to deal with these lvergent, co-existing societies.
The steps in the two legal processes disclose SQrr>e striking parallels, from the preliminary lllvestigative phase to the last stages of the ti'view of a case. Let us examine a hypo. etical military case, which has been tenta-
!lyely slated for a general court-martial. A
Mi ■
eh;
Respect to a superior officer, under Article • Before a general court-martial can be c°nvened, a formal Article 32 pretrial investigation must be held to determine whether a pneral court-martial is appropriate. The Instigating officer must also decide whether , e charges are properly drawn in the light of e evidence which the government presents against Corporal Jones. This step in the military legal process is the equivalent of the grand jury indictment in civilian courts. The grand jury determines the propriety of the charges against a civilian and tfie sufficiency of the government’s evidence to establish a prima facie case and to warrant proceeding with a trial.
During the formal pretrial investigation, and even before, in the earlier phases of investigating a case, Jones has a number of rights. Under Article 31 of the Uniform Code, he must be informed of the offense he is suspected of having committed, of his right to remain silent, and of the possibility that anything he says may be used against him later at trial. He may consult with his Marine officer-lawyer counsel, certified in accordance with Article 27 (b), and be represented by such counsel in the Article 32 investigation. The accused cannot be questioned without being informed of his right to have lawyer counsel appointed to advise him. In civilian courts, a suspect must be warned in the same manner about his rights against self-incrimination and his right to counsel, with one exception. He may have counsel appointed by the court to represent him only if he is indigent. In this respect the military system of justice goes further than the civilian to protect the individual. A person in the military service, regardless of his financial status, has the right to have counsel appointed to represent him.
Jones’s right to counsel continues into the trial itself and is there joined by other rights enjoyed by civilians. For example, the right to a trial by jury, before a qualified judge in civilian criminal proceedings, is analogous to the right to have a case heard before a minimum of five court members in a general court-martial or three members in a special court-martial. These court members act as the fact-finders or jury, and, in a general court-martial, a law officer acts as a judge in deciding questions of law. In actual practice there are usually well over five members on a general court, to allow for possible challenges
54 U. S. Naval Institute Proceedings, November 1968
by counsel. Otherwise, the challenges may bring the total number of court members below the required figure of five. Since Corporal Jones is an enlisted man, he has the right to have one-third of the court consist of enlisted men. The major difference between the military court and the civilian jury is that a unanimous jury vote is necessary to convict an accused in civilian criminal proceedings, while only two-thirds of the court is necessary in noncapital military cases. While the accused in the military has an advantage over his civilian counterparts with respect to the right to counsel, he may thus be at a slight numerical disadvantage when the court closes to vote upon his guilt or innocence.
There are other comparable aspects of the trial phase in military and civilian courts. The military rules of evidence closely resemble the civilian rules. Hearsay may be excluded in both systems. Both courts exclude illegally obtained evidence and the fruits of such illegal evidence: Searches of personal wall lockers must be based on the consent of the owner or on probable cause, a reasonable belief that a specific crime has been committed by the owner of the locker. In both courts the accused has the right to a speedy trial and may object to improper proceedings and make motions for appropriate relief.
Certain procedural formalities, then, common to both systems, must be followed. But there are significant differences. The very charges against Corporal Jones point up one difference. In civilian courts there are no such crimes as unauthorized absence, or disrespect to a superior. Some of the rules, or laws, which govern the Marine Corps and the other services are comparable to civilian crimes. Both societies punish rape, murder, adultery, and larceny. Certain basic laws are necessary to order in any society. The rules which distinguish military society from the civilian system are those which ensure obedience, loyalty, and discipline, especially in combat, and which encourage trustworthiness in appearing on time for work and in getting the job done. The laws which support these military requirements and further the ultimate goal or purpose of the military, the defense of the country, are those which punish as criminal such offenses as desertion, disrespect, dereliction of duty, and malingering.
A graduate of Harvard Co- lege in 1963 and of Harvar Law School in 1966, Captain Proctor served as a trial counsel in the Office of the Stan Judge Advocate, Marine Corps Base, Camp Pendleton> California, until his presen^ assignment with the fit Marine Air Wing in the West ern Pacific.
)
Outside the military service, these acts’ while they are morally reprehensible and ma) lead to the loss of a job, are not close enough t0 the core of society’s foundations to necessitate criminal sanctions. To circumscribe speeC or liberty among civilians in the same way tha| Articles 86, 89, 91 and 134 do in the milled would undoubtedly be a violation of the constitutional rights of the civilian. But th special needs and purposes of military society require a different concept of rights. Corpof Jones is being tried for offenses peculiar to his military context.
After Jones has been apprehended or haS been made aware of the crimes that he suspected of having committed, he may u incarcerated in the brig pending and dud110 his trial if his conduct is thought to be danger ous to his fellow Marines or if it is feared tn he will run away. His commanding of!icrI must make this decision, much as a civilj311 magistrate would do. Unlike a civil13’1 prisoner, though, Jones has no right to of ' He may languish in prison for four or 11 ^ months while awaiting a general court-mad1^ and have no way of getting out on bail of being assured of getting credit for pretd confinement. Only his commanding officer’ the “Old Man,” has the power to help hiu1 this situation. This fact points up the n)0 significant distinction between the civil1 and military legal processes. ,
The Old Man has wide discretion in de
ing with the case of Corporal Jones.
Shou
Id
any of Jones’s offenses be considered nu
enough, the commanding officer can
inor
ordd
of
the Uniform Code. If the young man accep1 these “office hours” (Captain’s Mast) al1^ does not ask for a court-martial, the Old '1 can order him to forfeit most of his pay f°r
judicial punishment under Article 15
<C
. . . Justice For All”? 55
/ard Col- I Harvard ) , Captain rial coun' the Staff Marine endleton> s present he First the West'
month, restrict his freedom of movement for a month or two, and reduce him in rank by °ne pay grade.
IVhat happens in this case to the procedural safeguards of a general court-martial? They are absorbed into the discretion of the commanding officer. The Old Man becomes the Jtidge, the jury, the counsel. But he is some- mng more. He is dealing, perhaps, with a teenager who has just left home and is in need
;se a.cts, tnd may tought0 cessitate speech vay that military of the But the r society lorp°r. ar to his
1 or ha® at he Is may be 1 during danger' , red that
r office civilian civiliaf to bailor fi* -martin ail or 0 pretna1 officer- D himi0 he most civilia11 ,
1 a parental substitute. The military Old Oan takes the place of the real Old Man, the D°y s father. He handles the minor infractions rules that Corporal Jones’s parents would ave the responsibility of tending to in civilian He. Where Jones’s father might take his car aWay and make him stay at home the follow- Week-end, the military Old Man restricts *m to his company area for two weeks, here Jones’s father cuts his weekly allowance, his commanding officer sentences him to forfeit part of his salary.
®nt if Jones refuses nonjudicial punishment, °r If the Old Man decides a court-martial ls more appropriate, Jones may be awarded a Sumrnary court-martial. The punishment . lch this court may impose on him
are
jamilar to what he may get as a result of office °Urs, but one difference is important: At the ^Urtlmary court he faces the possibility of avmg a federal court conviction stamped on f record. And the procedural safeguards are mriimal. The officer holding the court acts °m as judge and prosecutor, and sometimes as defense counsel.
I r, the Old Man may decide to take ministrative action instead of sending the a* atter to a court-martial. If Jones has been n habitual offender or has a serious civil Eviction on his record, his immediate ^mnianding officer may recommend an ndesirable Discharge from the Marine V0rPs. If Tones requests an administrative
disch, J 4
his
in deal' Shoulf 1 mio°r
n order le 15 °f accepts ist)
)ld Mal1
ay for 3
arge board hearing, he will have an Importunity to argue his case through officer- counsel. But there are few procedural
safe,
rete
guards, and guidelines for discharge and ^ ation are vague. The ultimate authority discharge Jones will rest with an Old
Man higher up in the chain of command. At Camp Pendleton, for example, the discharge authority resides in the Commanding General. Jones thus faces the stigma of an Undesirable Discharge imposed through the discretion of a commanding officer, rather than through the sieve of the various steps in the legal process.
Both the military and civilian legal processes are the outgrowth of American political ideals. Lockean principles based on the rights of man pervade the two societies. The differences arise primarily because one society, the military, exists to protect and preserve the other. Without the goal-oriented military, civilian pluralism could not flourish. Discipline in the protector is essential if the protected civilian system is to continue. But, there is another reason for the existence of two legal systems: The age of young Marines and the many aspects of their lives which must be controlled, necessitate the wide discretionary powers that are exercised by the Old Man.
Even though there are sound reasons for the differences which exist in military and civilian law, we in the military should not become complacent. There are deficiencies in the military legal framework, and officers have a particular responsibility to suggest and support ameliorative changes. They should seriously consider such things as the merits of providing bail, or a viable substitute, of the justice of the summary court-martial, and of the possible abuses inherent in existing procedures for Administrative Discharge.
Commanding Officers should recognize the heavy burden of responsibility they shoulder when they call a young man in for office hours, when they take the place of his real father who may have been unable or unwilling to help him become a productive citizen. Here is both the weakest and strongest point in the military legal process. It is at this point that the Old Man and the law become one and possess the power either to do justice and rehabilitate or to destroy the boy and subvert the military legal system.