Military Criminal Law
Along with the military’s laws, service members are also subject to the full range of criminal laws that exist in the civilian world.
Just like the civilian world, the military has a variety of laws to help maintain order and discipline in its ranks. In some ways, criminal laws in the military can be more expansive than those in the civilian world, given its unique role and mission in society.
Service members are unique because they are subject to multiple jurisdictions (military and civilian) for any crime they commit. They have to comply with laws that do not apply to everyday citizens.
This section explains the military criminal law system as well as the interplay between civilian law and military law and what it can mean for service members like you. Explore FindLaw’s Military Law Center to learn more about this complex area of the law.
Sources of Military Law in the United States
Military law in the U.S. is rooted in Article I, Section 8 of the Constitution. This section gives Congress the power to “make rules for the government and regulation" of the armed forces. The expansive set of federal laws created under this authority is found mostly in Title 10 of the U.S. Code.
One of the most important laws in Title 10 is the Uniform Code of Military Justice (UCMJ). This law has served as the primary source of military criminal law since its enactment in 1951. As its name suggests, the UCMJ was passed to standardize the military justice system across all branches of the armed forces.
Another important source of military law is the Manual for Courts-Martial (MCM). The MCM is a presidential executive order and serves as an official guide for conducting military trials and interpreting the UCMJ.
The Preamble of the MCM explains:
“The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."
There is also an extensive body of case law interpreting the UCMJ. The most important cases come from the U.S. Supreme Court and the Court of Appeals for the Armed Forces.
It is worth noting that U.S. service members may also face punishment under international laws of war and armed conflict. One example is the Geneva Conventions, a set of treaties designed to protect noncombatants from military forces in times of war.
Who is Subject to the Uniform Code of Military Justice?
The UCMJ has broad application to individuals engaged in military service. Specifically, it applies to active duty military members in the uniformed services (e.g., Army, Navy, Air Force, Marine Corps, and Coast Guard). It also applies to cadets at military academies (e.g., the Military, Naval, and Air Force Academies).
As explained by the Court of Appeals for the Armed Forces, the UCMJ also applies "[i]n time of declared war or contingency operation . . . [over] persons serving with or accompanying an armed force in the field." This means that civilians and contractors working with the military abroad are also covered.
It is also useful to consider who is not covered by the UCMJ. Those is the Reserves and National Guard are generally exempt unless they are inactive or active duty, such as monthly drill requirements, attending military schools, deployments, etc. Further, Reserve Officers’ Training Corps (ROTC) cadets are not covered unless they are on inactive or active duty training. Family members of individuals serving in the military are also not covered.
Civilian Criminal Justice and Military Courts
The procedures and protections available in military courts are in many ways similar to those in civilian courts. There are also many key differences. For example, civilian legal matters are handled in permanent "standing courts." By contrast, military courts (also known as "courts-martial") are convened as needed.
Another key difference is their reach of jurisdiction. State courts do not have the power to prosecute crimes committed outside of their state’s territory. By contrast, the UCMJ establishes worldwide jurisdiction over service members. Even so, it is important to remember that military personnel may be prosecuted in both federal courts-martial and state courts without running into double jeopardy. Though rare in practice, the possibility exists.
The Burden of Proof in Military Discipline
Again, the UCMJ and MCM govern how the military punishes misbehavior by members of the armed forces. Courts-martial come in three categories. In order of the severity of the cases they handle, they are as follows: summary, special, and general.
Prosecution in courts-martial is similar to the prosecution of criminal cases in civilian courts. Just as is the case with civilian prosecutions, defendants are presumed innocent until proven guilty. Guilt must be proven beyond a reasonable doubt. In simple terms, this means that guilt must be near-certain.
The military legal system also includes adverse administrative discharge as an alternative to court-martial. Administrative discharge requires that guilt be shown by a preponderance of the evidence. In simple terms, this means that guilt must be more likely than not.
Finally, service members accused of wrongdoing may also face nonjudicial punishment. In 2023 the Manual for Courts Martial was updated through Executive Order to set a preponderance of evidence standard.
Legal Representation in Military Courts
Service members facing court-martial, nonjudicial punishment, or adverse administrative discharge are entitled to legal representation. They can receive free legal assistance from a military attorney in the Judge Advocate General’s (JAG) Corps. JAG officers can represent either the prosecution or defense. There are systems in place to ensure there is no conflict of interest in individual cases.
Service members can also seek legal services through a civilian attorney. If you are a service member looking for legal advice or representation, FindLaw’s military lawyer directory can help.
