Military Lawyers

The area of law that governs a government’s military establishment is known as military law. Military law is similar to civil criminal law in that it is wholly disciplinary. It is completely accepted by civil courts and a part of the overall body of law in the United States. Anyone serving in the armed forces is always subject to military law.

What Distinctions Exist Between Military and Civil Law?

When a person enlists in the U.S. military, they are subject to different laws. The primary distinction between the civilian judicial system in the United States and the one in the armed forces is the focus of each institution. The American civil legal system exists to deliver justice.

The military legal system exists to give military leaders the means to uphold discipline and good order. For instance, being late for work as a civilian is not illegal, but being late as a military member is.

Where Do the Justifications for Military Law Originate?

The United States and its Constitution precede military law. However, because it is the supreme law of the state, the Constitution continues to be the main body of law guiding military law.

Additional sources include:

• Treaties’ impact on international law and the law of war
• Uniform Military Justice Code
• Executive directives
• Service policies
• Armed forces and wartime usage and customs
• Military court judgments
• Conduct sanctions

The military employs several techniques—not all of which necessitate a hearing—to maintain good order and discipline:

• Admonitions and Reprimands
• Counseling
• Files with unfavorable information
• Administrative downgrades
• Administrative Expulsions
• Disciplinary Procedures in Court

Can a Military Court Conviction Ever Be Reviewed by a Federal Civil Court?

Occasionally, yes. Compared to civilians, military members are subject to different laws and regulations under the Uniform Code of Military Justice (UCMJ). As a result, military court cases are not reviewed by federal civil courts.

However, just as federal civil courts are unable to utilize the UCMJ, military courts are unable to implement laws that are only applicable to them. Therefore, a federal civil court may be able to examine a military court conviction if it breaches a person’s rights under federal or constitutional law.

How Can a Federal Civil Court Review a Conviction from a Military Court?

If a military court conviction includes questions of federal or constitutional law, a federal civil court may examine it.

Here are a few illustrations:

• Making the case that a military conviction results in wrongful incarceration in a writ of habeas corpus petition
• Requesting a writ of mandamus attempting to impose a direct order from the federal civil court on a military court to get it to do something
• Trying to recoup lost pay or benefits due to a court-martial conviction is considered Tucker Act enforcement.

Before a Federal Civil Court Can Review a Military Court Conviction, are There Any Prerequisites or Restrictions?

Yes. For a federal civil court to review a military court ruling, the convicted party must have exhausted all other options. The person must therefore be left with no choice but to file a federal civil court appeal of the military court’s ruling. The convict must also be housed in jail or otherwise in custody when a habeas corpus petition is filed.

Once a Review is Completed, Are There Any Limitations on a Federal Civil Court?

Yes. Many federal courts only consider a military court conviction on a procedural basis. Federal courts are not compelled to examine its ruling as long as the military court gives the convicted person a fair and reasonable trial.

Other federal courts feel they can examine the decision as long as it addresses federal or constitutional problems.

Do I Have a Legal Right to Representation?

During court-martial procedures and the duration of the appeals process, you have the right to representation. A civilian attorney or a military judge advocate may represent you in court.

How Does My Case Get Reviewed by the Military Court of Appeals?

The court will analyze your case to see if any legal mistakes were made when determining the facts or the severity of the punishment imposed by the court-martial. The court may modify your punishment, but it cannot be made more severe.

To decide whether you were proven guilty “beyond a reasonable doubt,” the court will also examine the facts and evidence offered.

You will also be assessed if you enter a guilty plea and are sentenced to a punitive discharge, a year in jail, or more. This is done to ensure you didn’t pretend innocent during the proceedings and that you truly believed you were guilty.

Judge advocates review court-martial convictions that resulted in less severe punishments than those previously mentioned.

The next step is to consider filing an appeal with the Armed Forces Court of Appeals if the military appeals court for your branch of service is unsuccessful.

Is the United States Court of Appeals for the Armed Forces Open to Appeals?

The Court of Appeals for the Armed Forces is not always able to hear cases. If you have been given a death sentence, you have the right to appeal to this court. Your attorney must submit a petition to the court demonstrating “good cause” if your case needs to be reviewed (meaning, a good reason).

Either the court will hear your case, or it won’t. The Judge Advocate General refers cases for hearing to the court (JAG). The JAG will request a review when there is a mistake with the law or when the sentence is unjust.

The Judge Advocate General may refer your case to the court, but this is an extremely uncommon request.

The Court of Appeals can only review certain types of cases. It can only do one thing: seek for legal mistakes the military appeals court made. There is no need to check the facts for any inaccuracies. Only the court will consider whether the military appeals court appropriately applied the law to your case.

Can I File an Appeal with the U.S. Supreme Court?

Only a small number of cases are reviewed by the U.S. Supreme Court each year, and the Court has great discretion in deciding which cases to consider. Even if you have been given the death penalty, the Supreme Court has the option to consider your case. The U.S. Supreme Court does not hear appeals of every decision made by the U.S. Court of Appeals for the Armed Forces.

Can I Do Anything to Postpone a Civil Trial when I’m on active duty?

You might be able to put off certain kinds of trials while you’re on active duty. If your spouse files for divorce, you may petition the court to postpone the proceedings if you can demonstrate that being on active service prevents you from being present during the trial.

A lender or bank cannot foreclose on any of your property while you are away on active duty and for up to three months after you return is another component of your security. However, being on active service harms your capacity to pay back whatever debts you may have.

Do I Need an Attorney?

The penalties are equally as severe under military law as they are under civil law. In any criminal or administrative action brought against you, you have the legal right to have a military attorney appointed to represent you. In a Court-Martial, you also have the right to ask for a particular military lawyer, however, this request can be turned down.

In some circumstances, you might be allowed to work with a government lawyer or a civilian attorney with experience in military law. It might be wise to speak with a military law counsel. An accomplished attorney could aid in laying up defenses and resolving the charge brought against you.