CHAPTER 3

ALTERNATIVES TO COURT-MARTIAL

INTRODUCTION

As pointed out in Chapter 2, Anglo-American society historically has reacted to the various gradations of misconduct with its own graduated responses. Today's military community has reacted in much the same way and has developed a variety of appropriate responses to handle the various types of misconduct that occur in military service.

Trial by court-martial is one way in which commanders may deal with alleged criminal misconduct. Other options available to commanders for dealing with misconduct include informal administrative counselling, nonpunitive measures, and imposition of punishment under the Article 15 provisions of the Uniform Code of Military Justice. Also, a commander can initiate one of several types of discharge proceedings against a soldier who has committed certain acts of misconduct or who is considered to be an habitual disciplinary problem.

When a commander receives information that one of his soldiers has committed some act of misconduct, he should make an independent and personal investigation to get the facts surrounding the incident. After he has reviewed the facts, the commander personally must determine how to dispose of the matter. This is the most important decision the commander will have to make in the administration of military justice. In making his decision regarding the proper disposition of the offense the commander should give consideration to the following principles:

1. A case should be disposed of by the least severe means possible given the nature of the offense.

2. If punishment is deemed necessary, the commander should recommend a forum which is empowered to give only that punishment which will best serve the ends of good order and discipline, the needs of the accused and the welfare of society.

In making his determination, the commander also should consider the individual involved and the circumstances surrounding the incident. The personal history of the accused and the nature of the offense are probably the most important factors to be weighed by the commander.

Other factors also merit the commander's consideration. The commander should understand that minor offenses, not meriting severe punishment, should be disposed of by informal counselling, nonpunitive

measures, or nonjudicial punishment under Article 15. In determining how to dispose of offenses, the commander also should understand that an accused's performance in the civilian and military community often indicates his general character and rehabilitation potential. Commanders should treat first-time offenders more leniently than those who have committed offenses previously.

Where the offense is serious and may warrant trial by court-martial, the commander should review the accused's personnel records before making a recommendation as to the type of court-martial to which the case should be referred. In some instances the personnel records of the accused may affect the commander's recommendation. Where, for example, the commander considers the offense to be serious, but after reviewing the accused's records, he does not believe the accused should be punitively discharged, the commander may recommend trial by a court-martial not authorized to give a punitive discharge.

In choosing between the various options of disposition available to him, commanders are urged to dispose of cases by means other than trial by courts-martial, if possible. Thus, in each case a commander must determine if the misconduct can be dealt with appropriately through informal administrative counselling, application of nonpunitive measures, or imposition of Article 15 punishment. Only after he has satisfied himself that these methods are inappropriate, should a commander recommend trial by court-martial.

INFORMAL COUNSELLING

Counselling and Instruction

Informal counselling may be used when the nature of the offense is trivial. Minor problems of this nature usually can be corrected through counselling and instruction or additional training. For example, a soldier who appears in an improper uniform or who has unclean equipment may be censured and required to take make-up training in subjects directly related to the training deficiency. Care must be exercised by commanders, however, to insure that additional training is not used as a form of punishment.

Counselling as a means of disposing of offenses has a number of advantages. First, it permits prompt effective "on the spot" correction of the offense. Second, there is no record of disciplinary action which might hinder a soldier's advancement or military record, and third, it permits personal discussion between the parties on an informal basis. Admonitions and Reprimands

In addition to counselling and instruction, the commander also may give admonitions and reprimands. An admonition is a warning or a reminder given to the offender not to repeat the misconduct. Often the admonition also advises the offender of the consequences that may

result from recurrent misconduct. A reprimand is a formal expression of disapproval of an offender's misconduct.

The admonition and reprimand are useful in situations where the offender is immature or it is his first act of misconduct. In such cases while affirmative action is necessary, it may not be desirable or appropriate to record the disciplinary action permanently in the person's personnel records.

An oral admonition or reprimand is administered by the commander at the place and in the manner of his choice. A written admonition or reprimand is prepared in letter form and submitted through official channels to the person's personnel section along with a request that it be placed in the temporary section of the offender's field 201 file. A copy of the letter also should be given to the soldier. The file copy is retained until the serviceman is transferred, separated from the Army, or the administering commander requests its removal by the submission of a subsequent letter through channels.

Since an admonition or reprimand also can be imposed as nonjudicial punishment, commanders should insure that a written administrative admonition or reprimand contains a statement indicating that it has been imposed merely as an administrative measure and not as punishment under Article 15.

The advantage of using admonitions and reprimands is the personal contact between the commander and the soldier. If the commander effectively can communicate to the soldier the seriousness of his actions, in addition to what is expected of him in the future, the commander may be able to prevent the necessity of more severe disciplinary action at a later time.

ADMINISTRATIVE MEASURES

Commanders should consider nonpunitive administrative measures when the goal is to rehabilitate rather than punish the offender. Patterns of misconduct often begin with minor infractions. Too often, in response, commanders accumulate several such infractions over an extended period of time and incorporate them into a single Article 15 or court-martial in violation of paragraph 25 of the Manual for CourtsMartial which provides:

Any person subject to the code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the code shall be punished as a court-martial may direct (Art. 98). When it is intended to prefer charges, they should be preferred without unnecessary delay. An accumulation or saving up of charges through improper motives is prohibited; but when a good reason exists as when a person is permitted to continue a course of conduct so that a ringleader or other conspirators may also be discovered or when a suspected counterfeiter goes uncharged until his guilty knowledge becomes apparent—a reasonable delay is permissible if the person concerned is not in arrest or confinement. (Emphasis added.)

Rather than accumulating minor infractions, a commander should exercise sound leadership through the use of informal counselling and nonpunitive administrative measures for initial minor offenses and increasingly more severe administrative measures if further offenses occur. A commander may rehabilitate and discipline his troops without resorting to punitive procedures through the use of withholding privileges, imposing administrative reductions, barring reenlistment and reclassifying MOS's.

Withholding Privileges

The unit commander has the power to withhold certain privileges in order to maintain good order and discipline. For example he may withhold a soldier's weekend pass or if a soldier persists in fighting in the EM Club, he may deny the soldier use of the club for a certain period.

There are some privileges over which the unit commander has no direct control such as driving on post, use of the theaters and PX, and living in government quarters. These privileges are regulated by higher authority and may be terminated at that level upon the recommendation of the unit commander.

In withholding privileges commanders must exercise care to ensure that the privilege withheld has a significant relationship to the offense committed. For example, driving privileges should not be revoked for an assault upon another soldier. However, removal of PX privileges might be appropriate for the soldier guilty of disorderly conduct in the PX. Also, the commander must understand that he has authority to withhold only military privileges. Privileges granted by the state can not be withheld by a commander. Thus, while a commander can recommend withholding a soldier's on post driving privilege, the commander may not prohibit a soldier from driving in the civilian community. Administrative Reductions

A commander administratively may reduce a soldier in his command for conviction of a civilian offense or inefficiency in the performance of work. A person is considered to be inefficient if, considering his grade and experience, he is not performing his job properly. Any soldier who has served in an assigned position in the same unit under the same commander for 90 days or more may be reduced one grade for inefficiency. However, if the soldier is in the pay grade of E-5 or above, he can only be reduced for inefficiency by the action of an administrative board.

A commander's authority to reduce a soldier in grade is determined in most cases by his authority to promote soldiers to that grade. Senior grade enlisted personnel (E-7 through E-9) are promoted at Department of the Army level. Battalion commanders have promotion authority to grades E-2 through E-4. However, a commander whose authorized rank is full colonel or higher has reduction authority for administrative reduction of grades E-7 through E-9 for inefficiency or

civil conviction through the procedures established for administrative reduction boards. This reduction authority is limited strictly to administrative reduction for inefficiency or civil convictions. Also, reductions for inefficiency should not be used to reduce a person for an offense of which he has been acquitted by court-martial, nor should it be used in lieu of an Article 15 for a single act of misconduct.

A soldier who is being considered for reduction for inefficiency must be notified by letter of the reasons for the proposed reduction. He may submit pertinent matters of rebuttal and, following the reduction, may appeal to the reduction authority next above the officer imposing the reduction.

Bars to Reenlistment.

A commander also may recommend that a soldier be barred from reenlistment, if the commander considers that the character, conduct, attitude, proficiency, motivation or general desirability for retention of a soldier are not consistent with Army standards. Frequent tardiness for duty or formation, a repetition of short AWOL's, recurrent Article 15 punishments, or involvement in frequent difficulties with fellow soldiers are the types of activities that justify a commander recommending that a soldier be barred from reenlistment.

When a bar to reenlistment is recommended, the commander must notify the soldier as to the grounds on which the recommendation is based. The soldier is then permitted to submit a statement in rebuttal. The grounds on which the commander based his decision and the rebuttal statement of the soldier are forwarded to the appropriate approving authority for approval or disapproval.

A recommendation to remove or void a bar to reenlistment may be submitted any time the commander believes the soldier has demonstrated his worthiness to be retained in the Army. Under the provisions of Army Regulation 601-280, paragraph 1-31, a bar to reenlistment must be reviewed every 6 months or 30 days prior to transfer or ETS to determine if it is still warranted. The authority who originally approved the bar is the authority who may void it. If the soldier is in a new jurisdiction, the comparable authority may void the bar to reenlistment. MOS Reclassification

Reclassification of a soldier's MOS is another administrative remedy available to a commander. In a situation where an act of misconduct unfavorably affects a soldier's eligibility to perform further duties in his MOS, the commander is required to recommend reclassification of the offender's MOS. The following situations are examples of when such a recommendation must be made: a military policeman commits an assault; a medical corpsman becomes a drug addict; or a finance clerk commits larceny. A unit commander also may recommend reclassification of an awarded MOS when a soldier is inefficient in the performance: of his duties. In submitting his recommendation for an MOS reclassifica