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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.
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