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From Death to Discharge: Types of Court-Martial Punishments

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Service members convicted at court-martial can face significant punishments. Depending on the nature and severity of the crime, these punishments can include years in confinement, discharge from the military, reduction in rank, forfeiture of pay and allowances, and even death in the most serious cases.

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. MJA has successfully defended service members facing court-martial for some of the most serious offenses under the UCMJ. Contact our attorneys today for a free consultation.

PUNITIVE DISCHARGE

One of the most severe punishments a service member can receive at court-martial is a punitive discharge, i.e. dishonorable discharge (DD), bad-conduct discharge, and dismissal (for commissioned officers). Punitive discharges are different from administrative discharges–like a general under honorable conditions (GEN) or other than honorable (OTH) discharge–because they are intended to be a form of punishment.

In a general court-martial, a judge can award any type of punitive discharge–either dishonorable, bad-conduct, or dismissal–if such punishment is authorized by the charges. In fact, some offenses under the UCMJ, like sexual assault, require a mandatory dishonorable discharge.

A dishonorable discharge is “reserved for those who in the opinion of the court should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.” A dismissal is basically the equivalent of a dishonorable discharge but for commissioned officers.

A bad-conduct discharge, while less severe than a dishonorable discharge or dismissal, is awarded to enlisted members when the judge finds that the misconduct “warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature).”

Special courts-martial and summary courts-martial are much more limited in their ability to impose a punitive discharge. While a general court-martial can award any punitive discharge, a special court-martial may only award a bad conduct discharge. No punitive discharge is authorized at summary court-martial.

Punitive discharges are particularly severe given the life-long consequences they carry. A service member who receives a punitive discharge can expect to be deprived of “substantially all benefits administered by the Department of Veterans Affairs and the military establishment” including their G.I. Bill and VA healthcare benefits. Military judges instruct juries about the consequences of imposing a punitive discharge, explaining:

The stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will place limitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that he has served honorably. A punitive discharge will affect an accused’s future with regard to his legal rights, economic opportunities, and social acceptability. In addition, a punitive discharge terminates the accused’s status and the benefits that flow from that status, including the possibility of becoming a military retiree and receiving retired pay and benefits.

CONFINEMENT

The potential length of confinement for service members convicted at court-martial can range from no confinement to life in prison without the possibility for parole, depending on the charges and forum.

General courts-martial have no cap on confinement. In contrast, special courts-martial have a jurisdictional cap of 12 months confinement. Summary courts-martial are similarly capped at 1 month confinement for junior enlisted members. No confinement is authorized at summary court-martial for officers or enlisted members above the fourth enlisted pay grade.

REDUCTION IN RANK

There are two distinct types of reduction that can result from a court-martial conviction: adjudged reduction and automatic (or mandatory) reduction.

A reduction in rank is particularly tough because it carries not only the loss of military status and hard earned respect but also a corresponding loss of pay.

Adjudged Reduction

Adjudged reduction is awarded by a jury or judge as part of a sentence. For example, an E-9 convicted at a general or special court-martial of a serious offense could be reduced by the sentencing authority to pay grade E-1.

At a summary court-martial, E-4’s and below may be reduced to the lowest enlisted pay grade. Enlisted members serving in a pay grade above the fourth enlisted pay grade (E-5’s and above) can only be reduced one rank at summary court.

An adjudged reduction in pay grade takes effect on the earlier of: (1) fourteen days after the date on which the sentence is adjudged, or (2) the date on which the sentence is approved by the convening authority.

Automatic Reduction

Automatic or mandatory reduction is not part of a sentence but occurs as a consequence of a court-martial sentence. However, the types of sentences that trigger an automatic reduction differ between the military branches.

In the Army, a Soldier convicted at court-martial is automatically reduced to pay grade E-1 if they receive: (1) a punitive discharge (BCD or DD); or (2) confinement in excess of six months (180 days). Accordingly, if the sentence includes either a punitive discharge OR confinement in excess of six months (180 days), then the Soldier will automatically be reduced to E-1.

The Navy and Marine Corps are slightly different. Within the Department of the Navy, a service member convicted at court-martial is automatically reduced to pay grade E-1 if they receive: (1) a punitive discharge (BCD or DD); or (2) confinement in excess of three months (90 days). The lower threshold for confinement increases the risk of automatic reduction for naval personnel.

An automatic reduction in pay grade does not take effect until the convening authority takes formal action on the sentence.

FORFEITURE OF PAY

A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining whether to adjudge a forfeiture and if so, in what amount, the sentencing authority must consider the implications to the accused and his family of such a loss of income.

At a general court-martial, an accused can be sentenced to forfeit total pay and allowances. In contrast, the maximum forfeiture at a special court-martial is two-thirds pay for 12 months. Forfeitures at summary court-martial may not exceed two-thirds of 1 month’s pay. If the accused is convicted but does not receive confinement, forfeitures of pay may not exceed two-thirds of pay per month.

Similar to automatic reduction in rank, automatic forfeitures of pay may also occur in certain circumstances. In a general court-martial, any sentence that includes either (1) confinement for more than six months, or (2) any confinement and a punitive discharge will require the accused to forfeit all pay and allowances during the period of confinement.

In a special court-martial where a BCD is authorized, any sentence which includes either (1) confinement for more than six months, or (2) any confinement and a bad-conduct discharge will require the accused to forfeit two-thirds of his pay during the period of confinement. If a BCD is not on the table, any sentence which includes confinement for more than six months will trigger automatic forfeitures during confinement.

To protect a service member’s dependents from financial hardship, the convening authority has the discretion to direct that automatic forfeitures be paid to the accused’s dependents for a period not to exceed six months.

FINE

A court-martial may adjudge a monetary fine in lieu of or in addition to forfeitures. A fine makes the accused immediately liable to the United States for the entire amount of money specified in the sentence. The judge or jury may also order that an additional period of confinement be served if the fine is not paid.

Summary and special courts-martial may not adjudge any fine or combination of fine and forfeitures in excess of the total amount of forfeitures that may be adjudged in that case.

DEATH

The most serious punishment a service member can face is death itself. The UCMJ provides the death penalty as a possible punishment for 14 offenses, most of which must occur during a time of war. These include:

  • Article 85 – Desertion in time of war
  • Article 89 – Striking, drawing or lifting up a weapon to a superior commissioned officer in time of war
  • Article 90 – Willfully disobeying a superior commissioned officer in time of war
  • Article 94 – Mutiny or sedition
  • Article 95 – Being drunk or sleeping on post, or leaving post before being relieved in time of war
  • Article 99 – Misbehavior before the enemy
  • Article 100 – Subordinate compelling surrender
  • Article 101 – Improper use of countersign
  • Article 102 – Forcing a safeguard
  • Article 103 – Spies
  • Article 103a – Espionage as a capital offense
  • Article 103b – Aiding the enemy
  • Article 110 – Improper hazarding of a vessel or aircraft willfully and wrongfully
  • Article 118 – Murder

The death penalty, while a possible punishment, is extremely unlikely. The last time a service member received the death penalty was 1961, when Army Private John Bennett was hanged at Fort Leavenworth for raping and attempting to kill an 11-year-old girl.

OTHER LAWFUL PUNISHMENTS

In addition to the punishments described above, a court may also award any other lawful punishment to include a reprimand, hard labor without confinement (not to exceed three months), or restriction.

If the conviction does not require a mandatory minimum sentence, a judge or jury may adjudge no punishment at all.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. MJA has successfully defended service members facing court-martial for some of the most serious offenses under the UCMJ. Contact our attorneys today for a free consultation.

The post From Death to Discharge: Types of Court-Martial Punishments appeared first on Military Justice Attorneys.

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