Flashcards in Sectin 7E - Punitive Actions Deck (95):
Military law provides commanders with the tools, including ____ and Nonjudicial Punishment (NJP), to deal with criminal conduct.
One purpose of military law is to promote justice. Name the other three purposes.
To 2) help maintain good order and discipline in the armed forces; 3) promote efficiency and effectiveness in the military establishment; and 4) strengthen national security.
Name the four pillars of military law.
The 1) US Constitution; 2) UCMJ; 3) Manual for Courts-Martial (MCM); and 4) precedents.
What is the primary source of military law?
The US Constitution.
The US Constitution gives distinct powers to Congress and tot he President. This is called ____ of ____.
Separation of power.
Congress enacted the UCMJ and PResident Truman signed it into law in what year?
1950. (Effective 31 May 1951.)
President Truman created the Manual for Courts-Martial (MCM) in 1951. What does it provide?
1) Standardized forms; 2) rules for evidence, procedure and maximum punishments; and 3) military law guidelines for commanders and judge advocates.
How often is the Manual for Courts-Martial (MCM) revised?
The Manual for Courts-Martial (MCM) contains a wide range of materials. Name several.
The US Constitution, UCMJ (including text and discussion of punitive articles and sample specifications), Rules for Courts-Martial (RCM) and Military Rules of Evidence (MRE).
Armed forces members retain virtually all civilian legal rights, including protection agains involuntary self-incrimination and the right to counsel. (T/F)
No person shall be compelled in any case to be a witness against himself or herself. This is known as the right against ____.
Self-Incrimination. (Protection under the Fifth Amendment to the US Constitution, and reflected in Article 31, UCMJ; and Military Rules of Evidence (MRE).
A self-incrimination statement is considered involuntary if it is obtained in violation of the ____ Amendment to the Constitution, Article 31 of the UCMJ, or through coercion, unlawful influence or unlawful inducement.
Article 31, UCMJ requires that persons asked to make a statement first be told what three things?
1) The nature of the accusation; 2) that they don't have to make a statement; and 3) that any statement may be used as evidence against them in a trial by court-martial. (They are entitled to consult with counsel and to have a counsel present.)
After being advised of their rights, can a person freely, knowingly and intelligently waive them and make a statement which can be used as evidence?
In the Air Force, an attorney is provided free of charge to all who face court-martials regardless of whether the accused can afford to hire an attorney. (T/F)
The Air Force provides an attorney to the accused prior to what actions?
Summary, special and general court-martial, Article 32 investigations; and in the Article 15 process.
The ____ assists and represents most members accused of a crime.
Area Defense Counsel (ADC). (Undivided loyalty to the client is ensured because the ADC works for a separate chain of command and doesn't report to anyone at base level.)
Can members retain civilian counsel instead of counsel from the Area Defense Counsel (ADC)?
Yes, if it is at no expense to the government. (They may also request an individual military defense counsel for an Article 32 hearing or court-martial.)
What is the military equivalent of civilian "arrest"?
Apprehension. (The act of taking a person into custody.)
Apprehension requires probable cause. When does probable cause exist?
When there is a reasonable grounds to believe that the individuals has committed, or is committing, and offense.
When is a non-law enforcement NCO allowed to apprehend an officer?
1) Under specific orders from a commissioned officer; 2) to prevent disgrace tot he service; or 3) to prevent a serious offense or the escape of someone who committed one.
Name four kinds of pretrial restraint (moral or physical).
1) Conditions on liberty; 2) restrictions in lieu of arrest; 3) arrest; and 4) confinement.
Which type of pretrial restraint directs a person to do, or refrain from doing, specified acts?
Conditions on liberty. (However, it must not hinder pretrial preparation.)
How does restrictions in lieu of arrest differ from arrest?
Restrictions is less severe, usually confines the offender to broader geographic limits and allows the performance of full military duties unless directed otherwise.
In the armed forces, is arrest a physical or a moral restraint?
Moral. (It directs a person to remain within specified limits, but doesn't physically restrain them.)
Is a person under arrest expected to perform full military duties?
____ is a physical restraint, such as imprisonment.
When are individuals put in pretrial confinement?.
Only when lesser forms of pretrial restraints are inadequate.
Persons in pretrial confinement have a right to what kind of counsel?
Civilian counsel (at their own expense) or military counsel (at the government's expense)..
Pretrial restraint may only be ordered under what circumstances?
When there's a reasonable belief that the person committed an offense triable by court-martial and the circumstances require restraint. (Pretrial restraint should not be more rigorous that the circumstances require.)
When is a search reasonable?
When the authorization to search is based on probable cause and particularly describes the place to be searched and persons or things to be seized.
Define "probable cause" as it relates to a search.
Reasonable belief that who or what is being sought is located in the place or on the person being searched.
Define "authorization to search."
Express written or oral permission to search a person or area for specified property, evidence or for a specific person and to seize such property, evidence or person. (The military counterpart to a search warrant.)
Who can authorize a search and seizure over anyone subject to military law or anywhere on the installation?
Commanders, military judges, installation commanders and magistrates.
Commanders may conduct inspections on their units. Can contraband uncovered during a proper inspection be seized and admissible in court?
How does an inspection differ from a search?
Inspections are not focused on specific individuals or the collection of evidence.
Nonjudicial Punishment (NJP) is authorized under Article ___ of the UCMJ.
Article 15. (It provides commanders a means to maintain good order and discipline without the stigmata of a court-martial conviction.)
Any Air Force member may receive Nonjudicial Punishment (NJP) under Article 15 for minor offenses. (T/F)
What types of non-punitive disciplinary actions should commanders attempt before resorting to Nonjudicial Punishment (NJP)?
Counseling and administrative reprimands. (However, these are not required.)
An Article 15 cannot be imposed upon a member who demands trial by court-martial. (T/F)
True. (A commander should not offer an Article 15 unless he or she is prepared to proceed with court-martial charges.)
As it relates to Nonjudicial Punishment (NJP), a(n) ____ offense is typically one where the maximum imposable sentence does not include dishonorable discharge or confinement of more than one year.
Minor. (The commander considers the nature of the offense, the fender's age, grade, duty assignment, record, experience and the maximum sentence imposable for the offense if tried by a general court-martial.)
On what basis does the UCMJ set the permissible types and extents of punishments under Article 15?
Limitations are based on the grade of the imposing commander and the offender.
Reduction in grade is one type of permissible Nonjudicial Punishment (NJP) on enlisted members. List six others.
1) Additional restrictions; 2) correctional custody; 3) forfeiture of pay; 4) reprimand; 5) restrictions; and 6) extra duties.
When are bread and water diminished rations punishment authorized as Nonjudicial Punishment (NJP)?
What is the Article 15 maximum number of days restrictions or extra duties imposed by a lieutenant or captain? By a major or above?
14 days for both. 45 days extra duties, 60 days restriction.
When is the Article 15 maximum number of days in correctional custody imposed by a lieutenant or captain? By a major or above?
Seven days. 30 days.
How is the Article 15 authority to reduce the grade of SMSgts and CMSgts limited?
They can be reduced one grade only by MAJCOM commanders, commanders of unified or specified commands, or commanders to whom promotion authority for these grades has been delegated.
Do lieutenants and captains have Article 15 authority to impose grade reductions on TSgts?
No. (They do have authority to reduce Amn-SSgt by one grade.)
Majors and above have Article 15 authority to reduce Amn, A1C and SrA to the rank of ____.
Do majors have Article 15 authority to reduce the grade of MSgts?
No. (They do have authority to reduce Amn-TSgt.)
Frocked commanders may exercise only that authority associated with their actual pay grade. (T/F)
True. (No authority is conferred by the frocked grade.)
Who advises and helps the commander evaluate facts throughout the Nonjudicial Punishment (NJP) process?
The Staff Judge Advocate (SJA). (The commander makes the final decision.)
For Nonjudicial Punishment (NJP), the commander forwards AF Form 3070A/B/C, Record of Nonjudicial Punishment Proceedings, to the member. What does this form state?
The alleged offenses, the member's rights and the maximum punishment allowable.
How long does a member have to decide whether to accept Nonjudicial Punishment (NJP)?
Three duty days (72 hours).
Accepting Article 15 over court-martial is an admission of guilt. (T/F)
False. (It is a choice of forum. Members may still present a full defense, make statements and have the right to remain silent.)
After carefully considering all matters submitted by the member and consulting with the Staff Judge Advocate (SJA), which four decisions can the commander make regarding an Article 15?
1) The member did not commit the offenses and proceedings are terminated; 2) extenuation and mitigation factors make Nonjudicial Punishment (NJP) inappropriate and proceedings are terminated; 3) the member committed one or more of the offenses; or 4) the member committed one or more lesser-included offenses instead.
How can offenders appeal a commander's decision to impose Nonjudicial Punishment (NJP)?
Through command channels to the next superior authority. (Members may submit a written appeal within five calendar days.)
Commanders have to power to suspend, ____, or mitigate punishment of an Article 15.
Why are suspended sentences encouraged for first offenders under Article 15?
To provide an observation period and an incentive for good behavior. (All or part of the punishment is postponed for a specific probationary period (no more than six months) and automatically cancelled if the offender continues good behavior.)
____ cancels any unexecuted portion of a punishment under Article 15.
Commanders may reduce either the quantity or quality of an unexecuted portion of an Article 15 punishment through ____.
Mitigation. (For example, a reduction in grade can be mitigated to a forfeiture of pay.)
___ cancels the Article 15 punishment when, under all the circumstances of the case, the punishment resulted in a clear injustice.
Set-aside. (any property, privilege or rights affected by the portion of the punishment set aside are also restored.)
What are the three types of court-martial?
1) Summary Court-Martial (SCM); 2) Special Court-Martial (SPCM); and 3) General Court-Martial (GCM).
A(n) ____ court-martial tries minor offenses; a(n) ____ court-martial tries intermediate offenses.
Summary Court-Martial (SCM). Special Court-Martial (SPCM).
How many active-duty commissioned officers preside over a Summary Court-Martial (SCM)?
One. (The SCM officer is appointed instead of a military judge and considers evidence, makes findings and imposes sentencing if guilty.)
A person may not be tried by a Summary Court-Martial (SCM) if he or she objects. (T/F)
True. (Only consenting enlisted members may be tried by SCM.)
A Special Court-Martial (SPCM) tries noncapital offenses and consists of a military judge and a panel of ____ or more members.
Three. (Enlisted accused can ask that at least 1/3 of the panel be enlisted members. Any accused may ask for trial by military judge alone.)
Which four UCMJ authorized punishments are not allowed in a Special Court-Martial (SPCM)?
1) Death; 2) dishonorable discharge; 3) dismissal of an officer; and 4) confinement for more than one year.
A ____ court-martial tries the most serious offenses.
General Court-Martial (GCM).
TheGeneral Court-Martial (GCM) is composed of a military judge and at least a(n) ____-member panel that may include, when requested, at least one-third enlisted members.
The accused in a General Court-Martial (GCM) may request trial by military judge alone, except in which cases?
Capital cases (when a sentence of death may be adjudged).
How is the maximum punishment under General Court-Martial (GCM) limited?
It is limited only by the maximum allowable punishment under the UCMJ for the offenses and may extend to death.
Only enlisted members may be tried under Summary Court-Martial (SCM). Who is triable under Special Court-Martial (SPCM) and General Court-Martial (GCM)?
Any person subject to the UCMJ.
Any noncapital offense punishable under the UCMJ is triable by Summary Court-Martial (SCM) and Special Court-Martial (SPCM). (T/F)
Who is the convening authority for a General Court-Martial (GCM)?
The President; the SECAF; the commander of an air command, an air force, an air division or a separate wing of the Air Force; or any commander designated by the President or SECAF.
Court-martial procedures include what three steps?
The 1) trial; 2) findings and sentence; and 3) post-trial procedures.
Who is generally the convening authority for court-martials?
The wing or Numbered Air Force (NAF) commander. (He or she selects the court-martial panel.)
What grade must court-martial panel members be?
Senior in grade to the accused. (The also must be the best qualified.)
What is the court-martial verdict called?
The findings. (A not-guilty verdict is called an acquittal.)
How many members of the court-martial panel must concur for a finding of guilty?
At least 2/3.
What court-martial panel vote is required for a death sentence?
A unanimous vote by a panel of 12 members.
What court-martial panel vote is required for confinement exceeding 10 years?
Who must review the complete court-martial record before the convening authority acts on the findings and sentence?
The Staff Judge Advocate (SJA).
The convening authority must act on every case after a court-martial. (T/F)
List several actions the convening authority can take when reviewing court-martial records.
Approve or disapprove any portion of the findings or sentence, mitigate the sentence, suspend a sentence (except a death sentence), order a rehearing, and defer forfeiture of pay and allowances, reduction in grade or a sentence of confinement.
Which court-martial sentence cannot be suspended by the convening authority?
A death sentence.
List the four levels included in the appeal process of the UCMJ, in ascending order.
1) The judge Advocate General (TJAG); 2) US Air Force Court or Criminal Appeals (AFCCA); 3) US Court of Appeals for the Armed Forces (USCAAF); and 4) US Supreme Court.
Who reviews any case that is not automatically reviewed by the US Air Force Court of Criminal Appeals (AFCCA)?
The Judge Advocate General (TJAG).
What is the first level of formal appellate review?
The Air Force Court of Criminal Appeals (AFCCA). (It may approve, disapprove or modify the findings and sentence.)
Which court-martial findings are reviewed by the US Air Force Court of Criminal Appeals (AFCCA)?
1) Death sentence; 2) dismissal of a commissioned officer; 3) punitive discharge; and 4) confinement of one year or more.
Name the highest appellate court in the military justice system.
The US Court of Appeals for the Armed Forces (USCAAF). (It reviews all death penalty cases and cases forwarded by The Judge Advocate General (TJAG).)
Is the US Court of Appeals for the Armed Forces (USCAAF) composed of five military or five civilian judges?
Five civilian judges appointed by the president.
The accused may petition for the US Court of Appeals for the Armed Forces (USCAAF) review of his or her case. (T/F)
Decisions of the ____ may be reviewed by the US Supreme Court.
US Court of Appeals for the Armed Forces (USCAAF).