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The Uniform Code of Military Justice Essay

Introduction

The Uniform Code of Military Justice (UCMJ) is a federal law with its provisions contained in the United States Conduct, Title 10, and chapter 47. It contains in it detailed procedures and instructions which are used by the military in general to implement military law for the United States Armed Forces. This law requires the President of the United States to implement the provisions through an executive order that is known as the Manual for Court Martial (MCM).

The UCMJ is used to ensure that the laws of the military are observed to its fullness and also used to indict those who, within the military have been found to have violated the laws and that the convictions are subject to changeable levels of the military review process. This is so because the military personnel are not subjected under the civilian laws thus cannot be tried under the civil courts as they are considered a separate entity from the civilians.

This Uniform Code of Military Justice law was enacted by the congress in 1951 after it was observed that the American military had committed many injustices and abuses during the World War II and severe sentences had been given to those found involved in such acts. It was done so that fairness and justice would prevail during the trials of the suspected persons as the activities of the trials were now given to professional lawyers who ensured fairness was observed. For instance, with the enactment of the UCMJ, an officer being tried is permitted to demand that one third of the court be composed of enlisted personnel (Shanor & Hogue, 1996).

The Uniform Code of Military justice as stated earlier is only used within the military only. The persons who are subject to the use of this law include

  1. Cadets, aviation cadets and midshipman.
  2. Members of a regular component of the armed forces such as inductees, volunteers accepted into the armed forces and persons lawfully called or ordered into the armed forces.
  3. Retired members of the armed forces who are still entitled to pay.
  4. Persons who are still under the custody of the armed forces or serving a sentence that was imposed on them by a court- martial.
  5. Persons who, not necessarily of the armed forces, but is accompanying or serving the armed forces in the field.
  6. The prisoners of war who are in the custody of the armed forces.

The Manual Court Martial which is used by the President to amend the Uniform Code of Military divides the punitive articles into six areas which in turn makes the UCMJ a fairer law to be used by the military for the military. These areas are the text which indicates clearly where the congress approved, elements which gives the specifics of the committed offence, explanation which defines terms and justifies the element, lesser included offense which consists of the minor offenses that a military court may still find the offender guilty of and maximum permissible punishments which are the maximum penalty that can be awarded to an offender for a particular offense (Rant & Blackett, 2003).

UCMJ Individual Rights

In essence, a stated law should be in a position to award the accused some individual rights. This helps an individual in knowing what they are being accused of and allows them to prepare for their case and get the right advice from counsel. This is the case with all established laws as they give that provision. This also applies in the case of the UCMJ in that it accords the personnel with individual rights. To begin with, one of the individual rights accorded by this law is the right to remain silent as the accused is compelled by law not to answer any questions to which he deems that an answer to it may result in his incrimination or unfair trial.

In addition, it is required that the accused should have their rights read to them before they are questioned and also they should be informed of the nature of the accusation for which they are being arrested and they are not required to make any statement as it can be used as evidence against them by the court martial. Furthermore, another right is that any evidence or statement made as a result of coercion will not be used in the trial by the court- martial as this is not admissible in the court because the suspect may have confessed to a crime he had not committed because he was either threatened or tortured.

The UCMJ also demand that a military personnel suspected of any criminal act is legitimately entitled to the services of a lawyer indiscriminately. That is, regardless of their position in the military, economic level and the cost of the lawyer. This provision allows for the individual who may not be well versed with the laws to be protected from incriminating oneself as the lawyers will inform him of his rights and how to go about the whole issue. Also, it is allowed for the suspected individual to be represented by a military lawyer anywhere in the world as long as they are available. In the case of the proceedings of the court leads to the suspect feeling unjustly prosecuted, he is given the right to appeal for a better ruling in the appellate court (Rant & Blackett, 2003).

Another of the UCMJ rights includes that until a thorough and impartial investigation of the matter at hand has been carried out, no charge against the accused can be referred to the court- martial. It also allows that the accused can be represented during an ongoing investigation and that at that investigation the accused can cross- examine witnesses available and presents anything in his defense or mitigation according to article 32 (b).

Such provisions in the law allows for justice to be fairly served to the accused. Most of the rights given to the individuals, mainly those suspected of crime and are to be tried in the court-martial are found in the article 31 and 32 of the UCMJ. The article clearly indicates the rights and it should be adhered to the latter which failure to comply will result in a trial.

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The UCMJ Process and Procedures

UCMJ provides the regulations on how procedures are conducted within the military. If investigations have been conclusively done and findings presented to the court- martial, the accused is taken into pretrial confinement where he/she is held until the case is referred to a military judge for trial. At this point, the accused can request to be released from pretrial confinement. Confinement is done if it’s believed the accused is a flight risk or can commit further misconduct.

Once preliminary inquiry is done, its decide by the commander which court- martial is appropriate for the trial as there are three levels of court- martial and they include, summary court; which is a one officer court who acts as the judge, counsel and prosecutor and is designated mainly for minor offenses, special court; it’s a court of federal criminal jurisdiction consisting of not less than three members and its conviction consequently leads to a federal criminal conviction (Rant & Blackett, 2003). Here the accused is entitled to a military lawyer even a civilian lawyer, and the general court; which has unlimited jurisdiction for punishment and death penalty is considered an authorized punishment. For any trial to be conducted in this court, a thorough and impartial investigation into the matter must be conducted.

Once a sentence has been passed, such as, punitive discharge, confinement and even a death sentence, the sentence is automatically reviewed by the courts of Criminal Appeal which has the mandate of correcting any legal errors it finds and even reduce what it observes to be an improper sentence. This ensures that the legal system has served fairly and no prejudiced calls were involved in the deciding of the sentence. Furthermore, military personnel convicted can petition the U.S. Supreme Court for a review process of their cases.

The above processes established ensure that one, the accused, is fairly tried and that any action or sentence reached upon was well informed from the investigations already conducted.

Differences in UCMJ and American Due Process

With the UCMJ, the army commanders are involved in the legal system as their role is very important unlike in civilian system were the legal system includes a variety of people and departments.

Another difference is that in the case of UCMJ, the military disciplinary process commences when a report of a suspected infringement of the UCMJ is presented. In the American due process, the reporting and investigation of a felony or committed crime is the duty of the federal, state and local police unlike in the military where it’s the duty of the commander to investigate the received reports of the violation of the UCMJ from various sources which may include the military police and other members of the military and present the findings of his report in due time before a court- martial.

The American due process allows for the accused to be prosecuted in the presence of a jury, who make the final decision on the fate of the accused. In the UCMJ, there is no jury appointed and the final decision is made by the presiding judge.

Issues on Some Articles of UCMJ

The passing of a bill under article 2(11) of the UCMJ that places contractors and those who accompany the military to the field under the UCMJ has raised a lot of questions as to why civilians have been include in the military laws and they do not serve in the military. This has been seen as unconstitutional because it is seen as a violation of their civil rights as all the individuals are doing is offering assistance to the military and therefore that does not mean they are under the military law. But it has come to light that the reason for having them under the UCMJ is to ensure fairness as some of the contractors used to get away with offences they committed while in the field. This ensures fairness and upholding of discipline in the field.

Another issue that arises with this law is why retired army personnel (article 2 (4 &5)) are still subjected to this law. It should be noted that once a person is done with the army, he therefore should be under the civilian laws and not the military law because at that point, he is not serving in any active duties in the military. Being under pay from the military after retirement is part of the benefits that is offered to retired people and therefore using such an act to entitle the retirees under military law is unacceptable because these retirees are no longer officers but civilian individuals and any offence they commit should be punishable under the civilian laws.

Article 91; insubordinate conduct toward warrant officer raises a lot of questions for instance if a senior fails to instruct the subordinate fully on an issue and the subordinate fails to complete a task, it is taken as disobedience and one can be charged, but in real sense it is not the subordinates mistake rather the seniors for not issuing full instructions. This is seen as unfair treatment because the subordinate cannot defend himself. This should be corrected to allow the accused to explain oneself as this will provide a better understanding of the whole situation at hand.

The article further states that if an officer strikes or assaults a warrant officer while in office he is liable to be prosecuted. One asks what happens if the warrant officer started the assault but was overpowered by the officer in the form of self defense? It is seen that the officer will be charged rather than the warrant officer because the law leans towards the warrant officer. Lastly, the article states that an officer should not treat a warrant officer with contempt or disrespectfully. This in other words is seen to allow a warrant officer to be disrespectful towards an officer and no charge can be raised against him thus indicating unfairness in the law (Fidell, & Sullivan, 2002).

Article 86 of the UCMJ talks about absence without leave. The article does not clearly indicate the circumstances under which an officer can be allowed to be absent without leave without the authority of the commander. For instance, if an officer fails to report for duty due to an accident, the law does not state what should be done to that officer because the law states under article 86 (3) that if a member absents himself from his unit, organization or place of duty at which he is required to be at the time prescribed; shall be punished as a court- martial may direct.

 Furthermore, the article does not indicate if the committed offence of absence without leave is a minor or major offence and if committed what kind of punishment is due. A good law should appropriately indicate what punishment is administered for certain misdemeanors and if the offence is minor or major. Such a law should be revised to indicate circumstances under which an officer can be excused from punishment by court-martial for example under medical circumstances or accident one should be excused because in essence there are occurrences that are beyond human control and that should be considered as not a premeditated act on the part of the accused.

In UCMJ, provision for punishment by death is provided under article 71 (a) but it is has to be approved by the president. This section has been a contentious one because it is seen to violate human rights; the right to life. This has drawn a lot of criticism from human rights group. It therefore should be revised to include life sentence instead of death as death as a form of punishment is seen as violation of human rights.

Conclusion

This research on UCMJ has in detail explained when the UCMJ was first implemented and reason why it was implemented. It also gives a brief overview of the people whom the UCMJ laws apply to. In addition, the rights of an individual serving in the, military who is automatically under the UCMJ have been brief and clearly examined as this will help in future understanding of the rights. The process of the UCMJ mainly the court-martial procedures have been also discussed in details giving an overview of the whole process that the military follows. Furthermore, the differences in the UCMJ and the American due process have been explained giving the differences of the two. Finally, articles 2, 71, 86, 91 have been discussed and some of the issues arising from the articles discussed (Davidson, 1999).

In conclusion, we can say that the proposal and the implementation of the UCMJ has proved to be of a great importance as it has helped in the military having a fair justice system that has been used over time to solve military issues as the military is a separate entity from the civilians. As much as it is fair, it also has its demerits and loopholes just like any other law.

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