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Record of Trial by Summary Court-Martial, DD Form 2329 (back) - 14135_209
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Legalman 1 & C - Navy Lawyer / Jag training guide manuals
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Qualifications of the Military Judge - 14135_211
Before  any  case  can  be  brought  before  an  SPCM, such a court-martial must be convened. The creation of an SPCM is accomplished by the written orders of the CA in which the members are also detailed. In chapter 6, you learned the procedures for the preparation of the convening order. The order is typed on command letterhead, is dated and serialized, and is signed personally by the CA. The order specifies the names  and  ranks  of  all  members  detailed  to  serve  on the court. When a proper convening order is executed, an SPCM is created and remains in existence until dissolved. A sample convening order can be found in chapter  6. COMPOSITION  OF  SPECIAL COURTS-MARTIAL There  are  several  configurations  of  an  SPCM  de- pending  upon  either  the  desires  of  the  CA  or  the desires of the accused. The constitution of the court refers to the court’s composition; that is, the person- nel involved. The different types of SPCM composi- tions  are  as  follows: Three  members—One  type  of  SPCM  consists  of  a minimum of three members and counsel, but no mili- tary judge. Such an SPCM can try any case referred to it but cannot adjudge a sentence (in enlisted cases) of more than 6 months’ confinement, forfeiture of two- thirds pay per month for 6 months, and reduction to paygrade E-1. So, in ordinary circumstances, a puni- tive discharge may not be adjudged. Where a three- member type of court-martial is used, the CA must include  in  the  Referral  block  on  the  charge  sheet instruction that a BCD is not an authorized punish- ment. Military judge and members—This type of SPCM involves  counsel,  at  least  three  members,  and  a  mili- tary judge. The members’ role is similar to that of a civilian jury. They determine guilt or innocence and impose  sentence.  The  senior  member  is,  in  effect,  the jury foreman who presides during deliberations. The military judge functions as does a civilian criminal court judge. He or she resolves all legal questions that arise and otherwise directs the trial proceedings. This form  of  SPCM  is  authorized  to  adjudge  a  punitive discharge and has become fairly standard in the naval service. Military judge alone—This form of SPCM is not created by a convening order, but by the accused’s exercise of a statutory right. The accused has the right to request orally on the record or in writing a trial by military   judge   alone—without   members.   Before choosing  to  be  tried  by  a  military  judge  alone.  an accused is entitled to know the identity of the judge who will sit on his or her case. The TC may argue against the request when it is presented to the military judge.  The  judge  rules  on  the  request  and,  if  the request  is  granted,  he  or  she  discharges  the  court members for the duration of that case only. A court- martial so configured is authorized to impose a sen- tence extending to a punitive discharge. IMPROPER  CONSTITUTION OF THE COURT Requisites to the power of a court-martial to try a case  are  jurisdiction  over  the  offense,  jurisdiction over  the  defendant,  proper  convening,  and  proper constitution. A deficiency in any of these requisites makes the court powerless to adjudicate a  case law- fully. The rules relating to constitution of the court must,  therefore,  be  carefully  observed. QUALIFICATIONS OF MEMBERS Selection of members—The CA has the ultimate legal  responsibility  to  select  the  court  members.  This responsibility  cannot  be  delegated.  The  CA  may choose from lists of members suggested by subordi- nates,  but  the  final  decision  is  his  or  hers.  A  CA appoints,  as  members,  those  personnel  who,  in  his  or her  judgment,  are  best  qualified  by  reason  of  age, education,  training,  experience,  length  of  serivce,  and judicial temperament. These factors, of course, vary with individuals and do not necessarily depend on the grade of the particular person. No person in arrest or confinement is eligible to be a court member. Simi- larly, no person who is an accuser, witness for the prosecution, or has acted as investigative officer or counsel in a given case is eligible to serve as a mem- ber for that case. Commissioned  officers—The  members  of  an SPCM  must,  as  a  general  rule,  be  commissioned  offi- cers. When the accused is an enlisted service member, noncommissioned warrant officers are eligible to be court members. No member of the court should be junior in grade to the accused if it can be avoided. Members of an armed force other than that of the accused may be used, but at least a majority of the members should be of the same armed force as the accused. 7-12

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