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Miliary Justice 101

Part 1, Page 3

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Acts of Congress. The UCMJ is contained in Chapter 47, Title 10, United States Code, Sections 801 through 940. Although the authority to make rules and regulations for the Armed Forces is in the Constitution, military law is centuries old. The articles of the UCMJ define the offenses that violate military law in the Armed Forces of the United States and expose a military member to punishment if found guilty by a proper tribunal. They also set forth the broad procedural requirements implemented by the President's Executive order (the Manual for Courts-Martial [MCM]). For the member, this code is as much a law of the land as a state or Federal criminal code is for a civilian.

Executive Orders and Service Regulations. By virtue of his powers as Commander in Chief, the President has the power to promulgate Executive orders and service regulations to govern the Armed Forces as long as they do not conflict with any basic constitutional or statutory provisions. Article 36, UCMJ, specifically authorizes the President to prescribe the procedures (including rules of evidence) to be followed before the various military tribunals. Pursuant to these executive powers, the President has established the MCM to implement the UCMJ. The President and Congress have authorized the Service secretaries and military commanders to implement various provisions of the UCMJ and the MCM and to promulgate orders and regulations. Our courts have consistently held that military regulations have the force and effect of the law if they are consistent with the Constitution or statutes. Regulations and orders issued at lower levels of command are enforceable by Article 92, UCMJ, which prescribes violations of general orders and regulations, and Articles 90, and 91, UCMJ, which prohibit disobedience of the commands of superiors.

The Evolution of Military Justice

Military justice is as old as the earliest organized forces. An adequate and fair system of military justice has always been essential to the maintenance of discipline and morale in any military command. Thus, the evolution of military justice has necessarily involved the balancing of two basic interests: war fighting and the desire for an efficient, but fair, system for maintaining good order and discipline.

Uniform Code of Military Justice (UCMJ) (1951). The desire for uniformity amongst the services resulted in the enactment of the UCMJ, effective 31 May 1951. It was implemented by the Manual for Courts-Martial, 1951. The UCMJ established service courts of military review, composed of appellate military judges, who were, and are, the first level of appeal in the military justice system. The UCMJ also established the US Court of Military Appeals (now known as the US Court of Appeals for the Armed Forces (CAAF)), originally composed of three civilian judges, which is the highest level of appellate review within the military system. (The Court added two more civilian judges on 1 December 1991.) The creation of this appellate court structure was perhaps the most revolutionary change in military justice in our country's history. In this structure providing for appeal and review of courts-martial convictions, the checks and balances of civilian control of the Armed Forces were carried over into the military justice system itself.

1969 Manual for Courts-Martial (MCM). After several years of preparation, a new MCM became effective on 1 January 1969. The primary purpose of the revision was to incorporate changes made necessary by the decisions of the US Court of Military Appeals. Less than a month after the President signed the Executive order promulgating the new 1969 MCM, Congress passed the Military Justice Act of 1968, the major portion of which became effective 1 August 1969.

The Military Justice Act of 1968. Among the substantive changes made by the Military Justice Act of 1968 was the establishment of a trial judiciary, which consists of "circuit-riding" judges in each service. The act also allowed an accused the option of being tried by a military judge alone (no court members) if the member so requested in writing and if the military judge approved the request.

The Military Justice Act of 1983. Effective 1 August 1984, the Military Justice Act of 1983 made several procedural changes, including provisions for government appeals of some rulings by military judges. The government may not, however, appeal findings of not guilty. The act also provides for both defense and government appeals to the US Supreme Court from the US Court of Appeals for the Armed Forces.

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