Military Law and Issues

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The American military includes the Army, Navy, Air Force, and Marines. Military law applies to people who work in the military. It differs in many ways from civilian law, which governs regular citizens. Civilian law tries to maintain peace by resolving disputes and punishing criminal activity. Military law strives to promote order, morale, and discipline.

Origins of Military Justice in the United States

Like civilian law, military law has its origins in Roman law dating back to the first century B.C. Civil and military law in the Roman empire were part of one system. In the eleventh century, William the Conqueror introduced Roman law into England. As the military grew over the next few centuries, so did the desire to create separate systems for civil and military law. In 1649, England created a separate national system for military justice.

The American colonies that would form the United States created a military justice system even before declaring independence. Just weeks after American and British troops clashed at Lexington and Concord in April 1775, the Second Continental Congress formed an American army. Later that year, George Washington helped write the Articles of War. The colonies based the Articles of War on the military justice systems of the British and ancient Roman empires, which enjoyed great success as powerful empires.

The U.S. Constitution, which the United States adopted in 1787, made the military subject to civilian control through the president and congress. The president is commander-in-chief of the armed forces. That gives him ultimate authority for operating the military in both peacetime and war. Congress is responsible for raising, supporting, and making rules for the armed forces. Congress also has the power to declare war.

Military Law

The main goal of the Articles of War was to maintain discipline in the military forces. For that purpose it covered military crimes such as mutiny, or rebelling against military authority. Originally the Articles did not cover regular crimes such as murder, rape, and theft. In 1863, Congress revised the Articles to cover regular crimes, but only in times of war or rebellion.

In 1950, Congress replaced the Articles of War with the Uniform Code of Military Justice. The Uniform Code combined different laws for the various military branches into one code of 140 articles. The Code governs criminal and other unlawful military conduct in both peacetime and war. It covers regular crimes such as murder, rape, and theft, as well as conduct that is unlawful only in the military.

Offenses that are unique to the military include being absent without leave, or AWOL, the most common military offense. The Code also covers violation of orders, disrespect for officers, insubordination, mutiny, desertion, and conduct unbecoming an officer. Desertion is avoiding hazardous duty or an important assignment. The Code does not define conduct unbecoming an officer, but the offense generally covers conduct that harms the military's reputation. In Parker v. Levy (1974), the U.S. Supreme Court said the offense of conduct unbecoming an officer is not too vague to be enforced.


In the military, a person charged with misconduct often faces a proceeding called a court-martial. A court-martial resembles a criminal trial under civilian law. Instead of a jury, however, military personnel hear and decide cases. These personnel are called members instead of jurors.

Under the Articles of War, commanding officers had great power to handle court-martials. They could convene a court, select its members, and review the court's decision with authority to disapprove the sentence and send the case back for reconsideration. Following World War II in 1945, servicemen complained that the military justice system was too harsh and unfair, often giving excessive punishments. When Congress passed the Uniform Code in 1950, it changed the court-martial system in response to these complaints.

The Uniform Code created three types of court-martials: summary, special, and general. The summary court-martial is for enlisted personnel who are accused of minor offenses. One officer hears and decides cases with an abbreviated form of trial. The maximum sentence the court may impose is confinement for one month and a small fine. Enlisted personnel can refuse trial in a summary court-martial and ask for a special or general court-martial.

The special court-martial is for enlisted personnel and officers in all cases except capital cases, those in which the death penalty is available. Special court-martials use three or more members, counsel for both sides, and sometimes a military judge to referee the case. The maximum sentence the court may impose is bad-conduct discharge, confinement for up to six months, and loss of two-thirds pay for the same time. Enlisted personnel can insist that one-third of the members who decide their cases also be enlisted personnel. Members, however, must be ranked higher than the accused.

General court-martials can hear cases for any violation of the Uniform Code, including capital offenses. A general court-martial has five or more members, counsel for both sides, and a military judge. Available sentences include death, dishonorable discharge, bad-conduct discharge, dismissal of an officer, imprisonment, and loss of rank, pay, and allowances.

During a court-martial, the accused has many of the constitutional rights that criminal defendants have. He has the Sixth Amendment right to a speedy, public trial. In special and general court-martials he has the right to counsel. The accused enjoys the Fifth Amendment right against self-incrimination, which means he cannot be forced to confess or to testify against himself. The Fourth Amendment prevents the government from conducting unreasonable searches and seizures. The military cannot use evidence obtained in violation of the Fourth Amendment during a court-martial.

The Uniform Code allows the military to handle many violations outside the court-martial process. Nonpunitive measures allow commanding officers to discipline personnel for minor offenses such as shoplifting, intoxication, and fighting. Nonpunitive measures include withholding privileges, counseling, reductions in rank, and reassignment of duties. Nonjudicial punishment is more severe and is reserved for cases in which nonpunitive measures are inadequate.

The Military Draft

The military draft is the government's way of building its military forces. The federal government conducted its first draft during the American Civil War from 1861 to 1865.

During World War I in 1917, Congress passed the Selective Service Act to build an army. Many Americans challenged the law by saying the draft violated the Thirteenth Amendment, which prohibits slavery and involuntary servitude. The Supreme Court rejected this argument in the Selective Draft Law Cases (1918). It said the Thirteenth Amendment does not protect Americans from fulfilling civic duties such as military service and jury duty.

Following World War II, Congress enacted a peacetime draft with the Universal Military Training and Service Act of 1948. The law exempted people who were opposed to war for religious reasons. It gave no exemption, however, for people who opposed war for moral reasons unrelated to religious beliefs. In Welsh v. United States (1970), the Supreme Court said Congress violated the Constitution by distinguishing between religious and non-religious objections to war. As a result of Welsh, conscientious objectors can avoid the draft if they oppose war in any form because of deeply held religious, philosophical, or moral beliefs.

After the United States withdrew from the Vietnam War in 1973, Congress ended the military draft. America's military forces since then, including those that fought in the Persian Gulf War in 1991, have been voluntary. Young men age eighteen to twenty-five, however, still must register with the Selective Service System in case the government needs to reactivate the draft and recruit Americans for war.

Gays and Women in the Military

In 1916, the Articles of War made homosexual conduct a military crime. The military believed homosexuality ruined morale among heterosexual personnel. Since then homosexuals have been discharged from military service in great numbers. In the 1980s alone, over 15,000 homosexuals were discharged from the military.

In 1993, President William J. Clinton used his power as commander-in-chief to try to end discrimination against homosexuals in the military. Congress reacted by including a "don't ask, don't tell" policy in military legislation. The policy prevents military authorities from asking military personnel about their sexual orientation. In turn, homosexual military personnel are not supposed to reveal their orientation or engage in homosexual conduct. Keeping everyone silent is supposed to limit the number of homosexuals who get discharged for their sexuality. People on both sides of the issue have criticized the policy.

In 1948, Congress excluded women from combat roles with the Women's Armed Services Integration Act. Because the military academies were designed to produce combat officers, women were excluded there as well. When the draft ended in the mid-1970s, the military found it necessary to include more women in non-combat roles.

Congress and the judiciary finally ended the exclusion at military academies in 1991. President Clinton opened combat roles to women in the Air Force in 1993 and in the Navy in 1994. Only Army and Marine units engaged in direct ground combat remained closed to women. Women and men alike applauded these changes and urged further reform. Critics, however, claimed that a feminist social agenda was hurting the military and national security.

Suggestions for further reading

Encyclopedia Americana, 1993 ed., s.v. "Court-martial."

Sherrill, Robert. Military Justice is to Justice as Military Music is to Music. New York: Harper & Row, 1970.

Suro, Robert. "Military's Differing Lesson Plans Reflect Unease on Gay Policy." Washington Post, March 4, 2000.

World Book Encyclopedia, 2000 ed., s.v. "Court-martial."

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Military Law and Issues

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