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Chapter 7 Court-Martial Trials - 14134_199
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Preliminary  Inquiry
only. When an individual has already been tried by a state  or  foreign  court,  you  must  obtain  permission from the officer exercising general court-martial ju- risdiction  (OEGCMJ)  before  imposition  of  NJP  or referral to an SCM. Offenses that have already been tried in a court deriving its authority from the United States (such as U.S. District Courts) may not be tried by  court-martial. If the convening authority (CA) or SCM officer is the accuser, it is discretionary with the CA as to whether to forward the charges to a superior with a recommendation  to  convene  the  SCM  or  convene the  court  himself  or  herself.  If  the  SCM  officer  is the  accuser,  the  jurisdiction  of  the  SCM  is  not  af- fected. Mechanics  of  Convening Before  bringing  any  case  before  an  SCM,  you must  properly  convene  the  court.  You  create  an  SCM by the order of the CA detailing the SCM officer to the court. The convening order will specify that it is an SCM and appoint the SCM officer. Additionally, the convening order may designate where the court- martial will meet. If the CA derives his or her power from designation by SECNAV, include this informa- tion in the order. Each convening order is assigned a court-martial convening order number. The CA per- sonally signs the convening order showing his or her name,   grade,  and  title,  including  organization  and unit. The MCM, 1984, authorizes the CA to convene an SCM by notation on the charge sheet signed by the CA.  However,  the  better  practice  is  to  use  a  separate convening  order  for  this  purpose.  Appendix  6b  of  the MCM, 1984, contains a suggested format for the SCM convening order. Also discussed in chapter 6 is the proper  preparation  of  a  convening  order. Summary Court-Martial Officer An SCM is a one-officer court-martial. As a juris- dictional  prerequisite,  this  officer  must  be  a  commis- sioned officer on active duty and of the same armed force as the accused. (The Navy and Marine Corps are part of the same armed forces—the naval service.) Where  possible,  the  officer’s  grade  should  not  be below O-3. The SCM officer should be qualified be- cause  of  age,  education,  experience.  and  judicial  tem- perament as his or her performance will have a direct impact upon the morale and discipline of the com- mand. Where more than one commissioned officer is 7-2 present within the command or unit, the CA may not serve as SCM officer. When the CA is the only com- missioned officer in the unit, however, he or she may serve as SCM officer. Note this fact in the convening order and attach it to the record of trial. If such a situation exists, the better practice is to appoint an SCM  officer  from  outside  the  command.  The  SCM officer does not have to be from the same command as the accused. The SCM officer assumes the burden of prosecu- tion, defense, judge, and jury. He or she must thor- oughly and impartially inquire into both sides of the matter making sure the interests of both the govrn- ment and the accused are safeguarded and justice is done. While the SCM officer may seek advice from a judge  advocate  or  legal  officer  on  questions  of  law,  he or  she  may  not  seek  advice  from  anyone  on  questions of fact, since he or she has an independent duty to make these determinations. Jurisdictional  Limitations-Persons Article  20,  UCMJ,  and  R.C.M.  1301(c)  provide that an SCM has the power (jurisdiction) to try only (how enlisted person who consent to trial by SCM. The right of an enlisted accused to refuse trial by SCM is absolute. Commissioned officers, warrant officers, cadets, aviation cadets, and midshipmen, or persons who are not subject to the UCMJ, may not be tried by SCM. Jurisdictional   Limitations-Offense An  SCM  has  the  power  to  try  all  offenses  de- scribed in the UCMJ  except those for which a manda- tory punishment beyond the maximum imposable at an SCM is prescribed by the UCMJ. An SCM cannot try capital offenses that involve the death penalty. Refer to R.C.M. 1004 for a discussion of capital of- fenses. You may dispose of any minor offense by an SCM. PREFERRAL AND REFERRAL OF CHARGES In this section, we will focus on the mechanism for properly preparing a particular case for trial before an SCM. Referral is the basic process by which you send a case to a particular type of court-martial.

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