Part 1: The Purpose of Military Justice

The military justice system has a unique purpose – in addition to prosecuting offenses as defined by Congress and the President, the military justice system is designed to assist commanders in maintaining good order and discipline.  Civilian court systems have no similar purpose.  This is why having an experienced military lawyer – an attorney who understands both the law and the military mindset – may be important to the outcome of a particular case.

During my prior military legal career and in my current civilian legal career, I have been called on to train other lawyers on the functioning of the military justice system. This series of blog posts – “A Rough Form of Justice” – is based on some of the training I have conducted for other lawyers; however, I hope that non-lawyers will also find this information helpful as you struggle to understand specific actions taken by the military justice system.

Since 1998, when I began my military legal career, I have helped hundreds of service members, their spouses, and their anguished mothers and fathers struggling to understand a unique, sometimes confusing, and sometimes illogical system.  Many have asked me to explain why the military is taking a particular action against them or their loved one.  The stakes are high: your career and even your freedom may be at risk.  Understanding the military justice system – its purpose and its structure – may help you understand the challenge in front of you or your loved one.

WHY A SEPARATE MILITARY JUSTICE SYSTEM?

Historical Purpose: Good Order and Discipline.

Good order and discipline is essential to an effective fighting force. Because “it is the primary business of armies and navies to fight or [be] ready to fight wars” the military justice system is primarily concerned with maintaining good order and discipline. United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). The Supreme Court has endorsed the need for a military justice system separate from civilian courts: “This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743 (1974). The Court has also recognized that military justice is sometimes “a rough form of justice.” Reid v. Covert, 364 U.S. 1, 35 (1957).

Modern Purpose: Discipline and Justice.

According to Manual for Courts-Martial (MCM), the modern military justice system attempts to achieve both discipline and justice. Part I, Preamble, of the MCM emphasizes this balancing of interests: “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.” Manual for Courts-Martial, United States (2012 ed.).  Whether or not the system achieves an appropriate balance between justice and discipline in a particular case may be subject to debate. Unfortunately, in some cases, the system may overemphasize discipline at the expense of justice – this is the reason for the Supreme Court’s labeling of military justice as “a rough form of justice.”

THE ROLE OF MILITARY COMMANDERS

The military justice system is commander-centric: commanders, not lawyers, are responsible for maintaining good order and discipline.  Judge Advocates advise commanders. Commanders have at their disposal a range of administrative and disciplinary options escalating in severity: reprimands, nonjudicial punishment, adverse administrative separation, and three levels of courts-martial.  Which option a commander chooses often depends upon how that commander balances the need for good order and discipline, the requirement to do justice, and their own sense of fairness.  Some military commanders are wise and are able to strike the exact right balance; some, unfortunately, get it wrong.  All senior military decision-makers are most receptive to advocacy which emphasizes the needs of the military service as well as the interests of the individual soldier, sailor, Marine, or airmen. Having an advocate on your side who understands the military culture and the role of commanders in that culture can make all the difference.

In part 2, of “A Rough Form of Justice,” I will describe the sources of law that form the basis for the military justice system.

This Blog appeared on these pages in 2016 as part of a four-part series on military justice.