Military Law Flashcards
(162 cards)
1
Q
What Articles are ‘procedural in nature’?
A
Articles 1 - 76 & 135 - 146.
2
Q
What Articles are ‘punitive’?
A
Articles 77 - 134.
3
Q
What document implements the UCMJ?
A
Manual for Courts-Martial
4
Q
Define ‘jurisdiction’?
A
The power to execute the laws and administer justice.
5
Q
Who does the UCMJ apply to?
A
- All service members on AD.
- Reservists on active duty, including drill weekends.
- Military retirees.
6
Q
What regulation is the controlling authority for the Dept of the Navy?
A
US Navy Regulations (Navy Regs)
7
Q
What are some subjects that Navy Regs cover?
A
- The role of the Chief of Naval Operations and the Commandant of the Marine Corps (CMC).
- Ceremonial details and protocol.
- Various prohibitions on relationships between members of the Department of the Navy (e.g., Navy Regs define and prohibit fraternization and sexual harassment).
8
Q
How many separate offenses are listed under Article 134?
A
55.
9
Q
What does each punitive Article consists of?
A
- Text of the article.
- Elements of the offense. Facts the government must prove beyond a reasonable doubt to convict a service member at court-martial.
- Explanation. A narrative discussion of the offense with definitions of key terms.
- Lesser included offenses.
• Maximum punishment.
Note: Offenses addressed at nonjudicial punishment, summary court-martial, and special court-martial have jurisdictional limits that may affect the maximum punishment possible. - Sample specification(s).
10
Q
What are the steps in finding the proper charge & specification?
A
- Get all of the facts.
- Identify the potential charge(s) by reviewing the contents of Part IV, MCM, 2005 to determine the applicable article(s).
- Examine the elements and all explanation paragraphs in Part IV, MCM, 2005, for each article you think may be applicable.
- Match the facts as you know them with the elements and explanation paragraphs.
- Draft the specification(s) using the sample specifications contained in Part IV, MCM, 2005.
- Do not hesitate to call the trial counsel (prosecutor) who supports your unit.
11
Q
What is an ‘initiating’ charge?
A
To bring or report an allegation concerning an offense to the attention of military authorities.
12
Q
Who can initiate a charge?
A
Person, civilian or military.
13
Q
By what means is a charge initiated?
A
Letter, hotline complaint, telephone call, log book entry, etc.
14
Q
What is a ‘preferring’ charge?
A
To formally accuse a military member, under oath, of an offense under the UCMJ.
15
Q
What is a charge?
A
Article of the UCMJ (by number) that has allegedly been violated.
16
Q
What is a specification?
A
A statement of how the accused is supposed to have violated the article.
17
Q
What is a lesser included offense (LIO)?
A
An offense other than the one charged, which contains some, but not all, of the elements of the offense charged, and no elements different from the offense charged.
18
Q
What examples of LIO’s?
A
- Unauthorized absence (UA) is an LIO of desertion.
2. Wrongful appropriation is an LIO of larceny.
19
Q
What is intent?
A
That state of mind required to commit an offense.
20
Q
What must an accused have to be criminally liable?
A
- Have committed an act.
2. Have had a “guilty mind” while doing the act.
21
Q
What is general intent?
A
When the article does not indicate that a specific state of mind or element of knowledge is part of the offense.
22
Q
What are examples of general intent?
A
- UA.
2. Simple assault.
23
Q
What is specific intent?
A
when the article requires a specific state of mind or element of knowledge to exist in order for an offense to be committed.
24
Q
What are examples of specific intent?
A
- Desertion.
- Larceny.
- Assault with intent to inflict grievous bodily harm.
25
What are some examples of defenses?
1. Lack of requisite criminal intent.
2. Alibi.
3. Impossibility.
4. Ignorance or mistake of fact.
5. Self-defense.
6. Coercion or duress.
7. Accident.
26
What are the different levels of the Military Justice System, least to most severe?
1. Non-punitive measures.
2. Nonjudicial punishment (NJP).
3. Summary court-martial (SCM).
4. Special court-martial (SPCM).
5. General court-martial (GCM).
27
What are non-punitive corrective measures?
Corrective measures designed to overcome noted deficiencies in a unit or an individual and are not imposed as a punishment.
28
What are examples of non-punitive measures?
1. Informal and formal counseling.
2. Exhortation.
3. Disapproval.
4. Criticism.
5. Administrative withholding of privileges.
29
What measures must Extra Military Instruction (EMI) utilize?
1. Logically relate to the deficiency.
| 2. Serve a valid training purpose.
30
When can EMI be performed after normal working hours?
1. After approval of the commanding officer.
| 2. Under supervision.
31
When must EMI never be performed?
1. For more than two hours a day.
| 2. On Sunday.
32
What is a Nonpunitive Letter of Caution (NPLOC)?
A written censure that is considered a personal matter between the individual receiving it and the superior issuing it.
33
What is Non-judicial Punishment (NJP)?
Lowest level of military justice, NJP is imposed by commanding officers and officers-in-charge on members of their commands for minor offenses.
34
What are other names for NJP?
1. NJP.
2. Office hours (Marine Corps).
3. Captain's mast (Navy/Coast Guard).
4. Article 15 punishment (Army/Air Force).
35
Who may impose NJP?
Company commanders and higher may impose punishment on commissioned and warrant officers and enlisted members of their commands.
36
Who is authorized to only impose punishment on enlisted members of their unit only?
1. Officers-in-charge who are specifically detailed as such by Table of Organization (T/O),
2. Commanding general's orders, or
3. Other such authority
37
Who may delegate the power to impose NJP?
Only a flag or general officer-in-command
38
If the second in command assumes command are they granted NJP authority?
Yes, succession to command authority & not a delegation authority.
39
What level of offenses are punishable at the NJP level?
Minor offenses under the UCMJ.
40
What does the accused have the right to know during an NJP?
1. The nature of the offense(s) of which suspected.
| 2. That the Commanding Officer is contemplating office hours.
41
When does the accused have an absolute right to refuse NJP?
1. At all times, unless attached to or embarked on a vessel.
| 2. During the proceeding, until punishment is imposed (imposed when announced by CO).
42
What options does a CO have when NJP is refused?
1. Refer the case to trial by court-martial (or, if he or she is not a court-martial convening authority, forward the case to a senior commanding officer recommending such referral).
2. Decide to take no further action.
3. Use administrative/nonpunitive measures to dispose of the case.
43
What rights does the accused have to a defense counsel during an NJP?
No right to detailed defense counsel at NJP. Before deciding whether or not to accept NJP, an accused has the right to confer with an independent lawyer to help make that decision.
44
What hearing rights does the accused have?
1. An absolute right to remain silent and to make no statement at all.
2. The right to ask questions of any witness who makes a statement at the hearing.
3. To present evidence in his or her behalf (including a statement of his or her own).
4. The right to end the hearing and refuse NJP at any time before punishment is actually announced.
45
What appeal rights does the accused have?
The right to appeal any punishment imposed.
46
What is the Unit Punishment Book (UPB)?
The document the unit uses to record the imposition of NJP on enlisted personnel.
47
What is different when officers receive NJP?
The imposition of punishment is reported by naval correspondence to the CMC. A UPB page is not prepared.
48
Authorized punishment depends on what rank?
1. Commander who imposes punishment.
| 2. Marine who receives it.
49
How long & what part of a punishment can be suspended?
Part or all of the punishment imposed at NJP may be suspended for up to six months.
50
What actions can the accused commit while under a suspension?
1. Stays out of trouble during the period of suspension, the suspended punishment is remitted (goes away).
2. Is involved in further misconduct during the period of suspension, then the suspension can be vacated, and the suspended punishment takes effect.
51
An officer-in-charge (OIC) may never award what?
1. Punishment to an officer.
| 2. More than that punishment imposable by a company-grade company commander.
52
Who can commanders reduce?
Only those whom he has the authority to promote to the grade from which being reduced.
53
Who can Bn/Sqd Cmdrs or higher reduce?
Sgt & below.
54
Can SNCO's be reduced at NJP?
No.
55
Who has the authority to reduce SNCO's at NJP?
The Commandant.
56
Who does the accused appeal to?
The next senior commander.
57
What are grounds for an appeal?
1. Unjust punishment.
| 2. Punishment disproportionate to the offense.
58
What are the appeal procedures?
1. Must be made in writing.
2. Standard naval letter from accused via the imposing officer.
3. Plt Cmdr or 1stSgt should assist accused.
4. Must be submitted within five calendar days.
59
What options are available to the appealing authority?
1. Approve the punishment in whole.
2. Set aside the punishment (remit).
3. Suspend all or any part of the punishment, for a period not to exceed six months.
4. Change to a lesser form of punishment (mitigate).
60
Define convene?
To create, appoint, and bring into existence
61
Define convening authority (CA)?
1. The commander who creates, appoints, and brings into existence a court-martial.
62
Who is the lowest level commander authorized to convene a court-martial?
Bn or Sqd Cmdr
63
Define refer?
To send a specific case to a specific, previously convened court-martial for trial.
64
Define Summary Court-Martial?
The lowest, least severe form of court-martial under the UCMJ. Not a judicial proceeding & not a criminal prosecution like a SPCM or GCM.
65
What is the composition of a SCM?
1 commissioned officer usually in the grade of Captain or above who acts as prosecutor, defense counsel, and judge.
66
What rights does the accused have regarding counsel in SCM?
Has no right to a detailed military defense counsel, but may retain civilian counsel at his own expense.
67
What does the accused have a right to during a SCM?
1. Refuse SCM, even if embarked upon or attached to a vessel.
2. Be present and to hear all the evidence against him or her.
3. Cross-examine all witnesses who testify against him or her, and to examine all documentary and real evidence introduced at trial.
4. Remain silent or to testify in his or her own behalf.
5. Call witnesses and present evidence in his or her own behalf, both on the merits (guilt or innocence) and in extenuation and mitigation (appropriate sentence).
68
What are the duties of the SCM?
1. Obtain all of the witness & evidence.
| 2. Conduct a pretrial conference with accused to go over rights & administrative details.
69
Is the SCM a formal proceeding?
Yes.
70
What is the order of proceedings for a SCM?
1. Rights advisement of the accused
2. Entry of pleas by the accused
3. Evidence presented on the merits (if there is any plea of "not guilty")
4. Findings ("guilty" or "not guilty" of each offense before the court)
5. Evidence presented that is relevant to sentencing (aggravation, extenuation and mitigation) if there is a finding of "guilty"
6. Sentencing (if "guilty")
71
What does the record of trial include?
1. A summary of the hearing, to include a fairly detailed summary of all testimony pertaining to charges for which there was a plea of "not guilty" but a finding of "guilty".
2. The original charge sheet.
3. All exhibits the SCM considered.
72
What is the maximum punishment for SCM?
1. Confinement for one month
2. Forfeiture of two-thirds (2/3) of one month's pay for a period of one month (based on pay of rank to which reduced, if applicable)
3. Reduction to the lowest enlisted pay grade (E-1).
73
What other authorized punishments may be imposed?
1. Hard labor without confinement for 45 days
| 2. Restriction for 60 days
74
What can't be imposed if E-5 or above?
1. Reduced more than one pay grade
2. Confined
3. Awarded hard labor without confinement
75
Are Special Courts-Martial (SPCM) & General Courts-Martial formal proceedings?
Yes.
76
What do SPCM & GCM consists of?
1. A military judge.
2. Trial counsel (prosecutor).
3. Defense counsel.
4. The accused.
77
What options does the accused have regarding the composition of his board?
1. Military judge alone.
2. Panel of officers.
3. Court with enlisted membership.
78
What percentage of the composition can be enlisted if requested by an enlisted accused?
1/3
79
Who can convene a SPCM?
Bn/Sqd Cmdr or higher.
80
A SPCM must contain a minimum of how many members?
3
81
What is the maximum sentence at SPCM?
1. Confinement for 12 months.
2. Forfeiture of two-thirds (2/3) base pay per month for 12 months.
3. Reduction to the lowest enlisted grade (E-1).
4. Bad conduct discharge (BCD).
82
Why are officers rarely tried at a SPCM?
SPCM may not award the following punishments to an officer:
1. Dismissal.
2. Confinement.
3. Hard labor without confinement.
83
Does a finding at a SPCM constitute a federal misdemeanor?
Yes
84
Who convenes a GCM?
A commanding general after formal pretrial investigation.
85
Usually an Investigating Officer (IO) is what rank?
O-4
86
A GCM requires a minimum of how many members?
5
87
What is the maximum punishment under a GCM?
Whatever is specified under Part IV, Manual for Courts-Martial.
88
What are possible punishments under GCM?
1. Death.
2. Punitive discharge:
- Bad Conduct Discharge (BCD) (for enlisted persons only).
- Dishonorable discharge (DD) (for enlisted persons only).
- Dismissal (this is the commissioned officer equivalent of a DD).
3. Confinement (for both officers and enlisted persons).
4. Reduction in rank (for enlisted persons only.
5. Total forfeiture of all pay and allowances.
89
Does a finding at a GCM constitute a federal felony conviction?
Yes
90
What is Article 31?
1. Warnings
2. Apprehension
3. Search & Seizure.
91
What is Article 31, Warning?
The rights advisement required before questioning a suspect or an accused regarding the commission of an offense.
92
Why must a Warning be given?
1. To protect a Marine's right against compulsory self-incrimination
2. To preserve evidence for trial
93
What are the 2 incriminating statements?
1. Confession
| 2. Admission
94
Define confession?
Oral or written statement by the accused, which admits complete guilt of a crime.
95
Define admission?
Oral or written statement by the accused, which implicates the accused in regard to an offense, but is not a complete admission of guilt.
96
When must the warning be given?
Before any interrogation or questioning of a suspect or an accused about an offense.
NOTE: Doesn't apply to spontaneous remarks.
97
Who must give the warning?
Anyone subject to the UCMJ.
98
Whom must the warning be given to?
Persons subject to the UCMJ who are either suspected or accused of having committed an offense and are going to be questioned about that offense.
99
Define suspect?
a person you have reason to believe has committed an offense.
100
Define accused?
a person who has been informed of sworn charges against him or her or who is facing disciplinary proceedings.
101
How is the warning given?
Read the complete text of the Article 31 warning to the suspect or accused, using Appendix C.
102
Can the accused waive their rights?
The suspect or accused must freely, voluntarily, knowingly and intelligently waive his or her rights before any statement that he or she makes in response to questioning will be admissible at a court-martial.
103
What 3 questions must you ask for a valid waiver of rights?
1. Do you want a lawyer?
2. Do you understand that if you should decide to answer questions, you may stop answering questions at any time?
3. Do you want to answer questions and make a statement?
104
Questioning must cease immediately upon the exercise of what?
1. Privilege against self-incrimination.
| 2. Right to seek counsel.
105
Define apprehension?
1. Taking an individual into custody.
| 2. The military equivalent of civilian "arrest".
106
Who has the authority to apprehend?
1. Commissioned, warrant, and noncommissioned officers.
2. Military personnel or civilians performing law enforcement, guard, police, or investigative duties.
3. Military police or CID agents regardless of rank.
4. Civilian law enforcement personnel such as NCIS agents or contract security guards.
5. Sentries on post, when authorized to apprehend by their special orders.
107
What are grounds for an apprehension?
A person subject to the UCMJ may be apprehended for an offense under the UCMJ based on probable cause.
108
What reasonable grounds must there be for probable cause to apprehend?
1. An offense has been or is being committed.
| 2. The person to be apprehended committed it.
109
What other grounds are there to apprehend?
To quell:
1. Quarrels.
2. Affrays.
3. Disorders.
110
What basis must be confirmed when executing a search warrant?
1. Probable cause,
2. Supported by oath or affirmation, and
3. Particularly describing the place to be searched and the persons or things to be seized.
111
What is the exclusionary rule?
Illegally obtained evidence may not be admissible at a court-martial.
112
Define search?
Looking for evidence by an agent of the govt.
113
Define seizure?
Taking physical control of evidence.
114
What are the different types of evidence?
1. Real (physical, tangible: pistol/knife/drugs)
2. Documentary: written statement, logbook, ledger, or other written record.
3. Testimonial: testimony of a witness in open court.
115
What requirements are there for evidence to be admissible?
1. Relevant: Related to the issues being tried.
2. Competent: Conform to the rules of evidence.
3. Authentic: Shown to be what the party offering the evidence claims it to be.
116
When is identification used on evidence?
When there is an easily recognizable piece of evidence:
1. serialized weapons
2. items indelibly marked by the person seizing the evidence
3. items with peculiar individual characteristics
NOTE: Doesn't require a chain of custody, although it would be of assistance.
117
What is a chain of custody?
The party offering the evidence must account for every person having custody of the evidence between the time it was seized and the time it is admitted into evidence at trial.
118
What are characteristics of a chain of custody?
1. Must demonstrate the evidence was safeguarded & properly handled.
2. Any break in chain of custody may render the evidence inadmissible.
3. Can be as short as one link (single custodian).
119
After you obtain evidence what should you do?
1. ASAP, note the time, date, place, from whom or where the evidence was seized, and describe the evidence.
2. Safeguard the evidence in your possession until you can turn it over to proper authorities.
120
What items may be seized?
1. Instrumentalities of a crime (e.g., burglar tools).
2. Fruits of a crime (e.g., stolen money, stereo).
3. Weapons that could be used to attempt escape.
4. Contraband (any property the possession of which is illegal).
121
What are the 2 types of searches?
1. Requiring probable cause.
| 2. Not requiring probable cause.
122
What searches require probable cause?
To search an area where an individual has a reasonable expectation of privacy, you need to have probable cause and proper authorization or permission.
123
What is authorization to search?
An express permission, written or oral, issued by the commanding officer, to search a person or an area for specified property or evidence and to seize such property, evidence, or person.
124
Who may authorize searches?
CA/OIC who has control over the place where the property or person to be searched is situated or found; if not under military control the CO/OIC having control over the person.
125
Can power to authorize searches be delegated?
No.
126
When does probable cause to search exist?
When there is a reasonable belief the person, property, or evidence sought is located on the person or in the place searched.
127
What is the reasonable person test?
Have a reasonable belief the information giving rise to the intent to search is reliable & has a factual basis.
128
What are indications of reliability?
1. Prior reliability of source.
2. Detail of information provided.
3. Amount of time that has passed since information came into hands of informant.
129
What may a determination of probable cause be based on?
1. Written sworn statements communicated to the commanding officer
2. Sworn oral statements communicated to the commanding officer:
- In person
- Via telephone
- By other appropriate means of communication
3. Such information that the commanding officer may already know.
130
An authorization to search may be based upon what?
Hearsay evidence, in whole or part.
131
What is the best policy for searches & seizures?
Obtain the authorization in writing.
132
What must the search order do?
1. Describe with some degree of particularity the evidence being sought.
2. Clearly define the person and/or place to be searched.
133
What can be searched?
1. The person of anyone subject to military law or the law of war wherever found.
2. Military property of the US or of non-appropriated fund activities of armed forces of the US wherever found.
3. Persons and property within military control wherever located, including:
- Military installations
- Military encampments
- Military vessels, aircraft, and vehicles
- Any other location under military control
4. Does not include a military member's off-base quarters.
134
Who may conduct a search or seize evidence after authorization has been granted?
1. Commissioned officers
2. Warrant officers
3. Noncommissioned officers
4. When in the execution of guard or police duties:
- NCIS agents.
- CID agents.
- Military Police (MPs).
- Other persons properly designated to perform guard or police duties.
135
What 2 questions should you ask yourself before performing any search?
1. Can I perform this search without further authorization?
| 2. If not, what must I do to obtain authorization?
136
What is an exigent search?
Must be based on probable cause & search authorization isn't required due to insufficient time.
137
What searches don't require probable cause?
1. Searches of government property.
2. Consent searches.
3. Searches incident to lawful apprehension.
4. Emergency searches.
5. Searches of open fields or woodlands.
138
Is consent or probable cause required for searches of government property?
No, unless person has a reasonable expectation of privacy at time of search.
139
What is a consent search?
A search of any person/property may be conducted with lawful consent.
140
Who may consent?
Any person may consent of their own body/property which they exercise control.
141
What is scope?
Person granting consent may limit the consent in any way & withdraw consent at any time.
142
For a consent to be valid what must there be?
It must be voluntary.
143
Is it required to inform an individual of refusal to consent?
No.
144
What is immediate control?
Area the person being apprehended could reach by lunging.
145
Why is a search incident to a lawful apprehension conducted?
To discover weapons & destructible evidence.
146
What constitutes emergency searches?
Conducted of persons/property in good faith effort to:
- render immediate medical aid
- obtain info that will assist in rendering of such aid
- prevent immediate/ongoing personal injury.
147
What is apprehension?
The taking of a person into custody.
148
How is an inspection conducted?
1. A reasonable fashion.
| 2. May use any reasonable natural or technological aid, such as drug detection dogs.
149
What results may come from an inspection?
Any unlawful weapons, contraband, or other evidence of crime located may be seized & admissible at trial.
150
Who has the authority to grant inspections?
Any unit leader, including Plt Cmdr, Sqd Ldr, or fire team ldr IOT promote security, military fitness, or good order & discipline.
151
What is the plain view doctrine?
If person reasonable observes evidence that is subject to seizure.
152
What discharge must a Marine have to be eligible for the G. I. Bill?
Honorable
153
What is voluntary separation?
A Marine may shorten or revoke his or her enlistment.
154
What is involuntary separation?
The Marine Corps takes action to end a Marine's service.
155
How are discharges characterized?
1. Type of discharge.
2. Basis for discharge.
3. Quality of the Marine's service.
156
What are the 3 types of punitive discharges?
1. Bad Conduct Discharge (BCD) - awarded as punishment by a SPCM/GCM.
2. Dishonorable Discharge (DD) - awarded as punishment by a GCM.
3. Dismissal - only applies to officers; equivalent to DD; awarded by a GCM.
157
What are the 4 types of administrative discharges?
1. Honorable - meets/exceeds high standards of MC.
2. General (under honorable conditions) - significant negative aspects; less than 4.0/3.0; may impact Marine's future.
3. Other than honorable (OTH) - significant departure from accepted standards/practices; commits misconduct; request & receives separation in lieu of trial by court-martial.
4. Uncharacterized - w/in first 6-mod of service; can't complete entry level training; fraudulent enlistment (order of release from custody).
158
Who convenes over involuntary discharge boards to review & recommend disposition of certain cases?
Special court-martial authorities
159
Who does the board consist of?
1. Composed of at least 3 officer, one of whom must be O-4 or greater.
160
What will the board recommend?
1. Category of separation.
| 2. Characterization of the discharge.
161
Who makes the final decision?
The separation authority.
162
Is every Marine entitled to an administrative discharge?
No.
