receiving the reports, the commander is required to make an independent investigation before preferring charges to determine if charges are warranted. In less serious offenses not investigated by the military police, the commander conducts his own investigation and prefers charges if he concludes violation of the UCMJ has occurred.

If an investigation reveals that an offense has been committed by a serviceman, it does not necessarily follow that the accused will be tried by court-martial for the offense. The commander has great discretion in determining the appropriate disposition of acts of misconduct within his command, and in exercising his discretion he may decide that the matter can be handled best by informal counselling, by application of administrative measures, or by imposition of informal punishment under Article 15. Thus, a commander can dispose of an alleged offense by judicial or nonjudicial means. In the civilian criminal justice system offenses can not be disposed of nonjudicially. Civilian offenses are either tried in the criminal courts or are not prosecuted at all.

If a military commander determines that an offense should be disposed of by judicial means, he must recommend trial of the offense by either summary, special or general courts-martial. Each type of courtmartial has been designed to hear particular types of cases ranging from minor offenses to major crimes. Each is unique and has distinguishing characteristics.

SUMMARY COURT-MARTIAL

A commander may recommend disposition of an offense by summary court-martial. A summary court-martial is a one man court designed to handle minor offenses. It is normally convened by a battalion commander and has a simplified procedure. Any commissioned officer on active duty may be designated to be a summary court officer. As a general rule age, education, training, experience, service and judicial temperament are considered in selecting an officer to sit as a summary court officer. A warrant officer, enlisted man, or witness cannot be the summary court officer. A layman officer may be a summary court officer, but at many installations military magistrates or judge advocate officers are selected to serve as the summary court officers.

In a summary court-martial, the summary court officer acts as the judge, prosecutor and defense counsel. He reviews the evidence and discusses the defenses with the accused and then renders a verdict in the case. If the verdict is guilty, the summary court officer imposes a sentence. The accused may have a lawyer representing him at the summary court-martial and at many installations such representation is provided routinely.

The maximum sentence that can be adjudged in a summary courtmartial depends upon the rank of the accused. Those in the rank of E-4 and below can be confined at hard labor for up to 1 month or restricted to

specified limits up to 45 days, reduced to the lowest enlisted grade and be made to forfeit up to two-thirds pay per month for 1 month. Those in the rank of E-5 and above can be restricted to specified limits up to 45 days, reduced to the next lowest rank and be made to forfeit up to two-thirds pay per month for one month.

An accused must consent to trial by summary court-martial and can not be tried over his objection. If an accused objects to being tried by summary court-martial, the summary court officer must return the case file to the summary court-martial convening authority. Depending on the seriousness of the offense, the case may be referred to either a special or general court-martial. Note that a summary court-martial cannot try officers, cadets, or midshipmen.

In determining whether he should recommend trial of an accused by summary court-martial, the commander should determine if disposition under article 15 is appropriate. If the accused has refused an Article 15, or has received Article 15's in the past for the same offenses, or if the offense is too serious to be handled by an Article 15, the commander may recommend trial by summary court-martial.

In making his decision as to the appropriateness of recommending trial by summary court, the commander should consider the mentality of the accused and the future effect a court-martial conviction may have on the accused, noting that the conviction will become a permanent part of his military and civilian records. The commander also should consider the seriousness of the offense to assure that it should not be tried by special or general court-martial.

SPECIAL COURT-MARTIAL

If an offense is too serious to be tried by summary court-martial, the commander can recommend trial by special court-martial. The special court-martial is an intermediate court which normally is convened by a brigade or equivalent commander and is used to try more serious types of offenses.

A special court-martial is composed of a military judge and not less than three jury members. If the accused requests in writing that enlisted persons be included on the jury, at least one-third of jury members will be enlisted personnel. If the accused desires to be tried by a military judge, he must submit a written request for trial by military judge alone. In such cases the military judge rules on all questions of law, as he does in a jury trial, and decides the guilt or innocence of the accused on the charges referred to trial. If the accused is found guilty in a trial before military judge alone, the military judge imposes the sentence. If the accused is found guilty by a jury, the jury imposes the sentence.

In a special court-martial, as well as in a general court-martial, the accused has the right to be represented by a detailed defense counsel who is a lawyer. In addition, the accused has the right to be represented

also by either a military lawyer of his own selection who will be assigned to the case if he is reasonably available, or by a civilian lawyer at no expense to the government. Article 27 of the UCMJ sets forth an accused's specific counsel rights:

(b) Trial counsel or defense counsel detailed for a general court-martial—

(1) must be a judge advocate of the Army, Navy, Air Force, or Marine Corps or a law specialist of the Coast Guard, who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court, or of the highest court of a State; and

(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed forces of which he is a member.

(c) In the case of a special court-martial—

(1) The accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under [article 27 (b)] unless counsel having such qualification cannot be obtained on account of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening authority shall make a detailed written statement, to be appended to the record, stating why counsel with such qualifications could not be obtained;

(2) if the trial counsel is qualified to act as counsel before a general courtmartial, the defense counsel detailed by the convening authority must be a person similarly qualified; and

(3) if the trial counsel is a judge advocate, or a law specialist, or a member of the bar of a Federal court or the highest court of a State, the defense counsel detailed by the convening authority must be one of the foregoing. As a practical matter every accused tried by a special or general courtmartial is represented by a military or civilian lawyer.

If an accused is convicted in a special court-martial the maximum sentence that can be adjudged is confinement at hard labor up to 6 months, forfeiture of two-thirds pay per month for up to 6 months, and reduction to the lowest enlisted grade.

In determining whether to recommend trial by special court-martial, the commander should consider the nature and circumstances surrounding the offense and the background of the individual involved, including such factors as the accused's rank, family status, prior Article 15's and convictions by courts-martial and the accused's reasons for committing the offenses.

GENERAL COURT-MARTIAL

The third type of trial to which a commander can refer a case is the general court-martial. This is the highest trial court in the military and it normally is convened by the general officer in command of an installation. Capital and serious non-capital offenses are tried by general courts-martial. When an offense is serious enough to be tried in a general court-martial, a formal pretrial investigation must be conducted prior to the offense being referred to trial.

ARTICLE 32 INVESTIGATION

Article 32 of the UCMJ sets forth the requirements for pretrial

investigations in cases to be referred to general courts-martial. In part Article 32 provides that:

(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and copy thereof shall be given to the accused.

The Article 32 investigation frequently is compared to the grand jury in the civilian community.

While the purpose of Article 32 investigation and the grand jury are similar, there are significant differences between them. Grand jury hearings are conducted in secret and neither the accused nor his attorney are permitted to appear before the grand jury. Also, at grand jury hearings the state's attorney needs only to present enough evidence to secure an indictment.

In contrast, the Article 32 investigation is public and the accused and his lawyer are permitted to attend and participate. The accused's right to counsel at the Article 32 investigation are the same as his right to counsel at a court-martial trial. At the Article 32 the accused can be represented by his detailed military defense counsel who has been appointed by the general court-martial convening authority to defend the accused. In addition the accused can be represented by a qualified military defense counsel of his own choosing, if reasonably available, or a civilian counsel provided at no expense to the government.

During the investigation all of the government's evidence is presented to the Article 32 Investigating Officer and the accused and his defense counsels. At the counclusion of the presentation of the government's evidence, the defense counsel and the accused are offered an opportunity to present evidence or call witnesses in defense.

After all of the evidence has been received, the Article 32 Investigating Officer evaluates all of the matters presented and makes his recommendations regarding disposition of the case. In making his recommendations, he must first decide whether there is sufficient evidence to support the charges and specifications, and whether the allegations of misconduct should be tried by court-martial. If he decides that

the charges and specifications are serious enough to warrant trial by court-martial, he must recommend the type of court-martial to which the charges should be referred. In addition to these considerations, the investigating officer must decide if there is a basis for inquiring into the sanity of the accused, and if the accused has made a confession, he must assess the propriety and legality of the statement. The important advantage of the Article 32 Investigation is that it gives the accused complete discovery of the government's case well in advance of trial.

The Article 32 Investigating Officer is appointed by the summary court-martial convening authority who is usually a battalion commander subordinate to the officer having the power to refer the case to a general court-martial. The appointment of the Article 32 investigator by the summary court-martial convening authority insures that cases are considered and disposed of at the lowest appropriate jurisdictional level.

The officer appointed to conduct the Article 32 Investigation generally is a layman. Military magistrates sometimes can be appointed as Article 32 Investigating Officers, and in a very serious or highly complex cases a judge advocate officer may be appointed to conduct the Article 32 investigations.

After notification of his appointment, the Article 32 Investigating Officer is instructed as to his duties and responsibilities by the Chief of Military Justice at the Staff Judge Advocate's office. The rights of the accused and procedural aspects of the investigation also are reviewed with the Article 32 officer. Many commands have detailed instructions and copies of DA Pam 27-17, a procedural guide for Article 32 investigations, which the investigating officer can follow during the investigation. The Article 32 officer always is advised that the Article 32 hearing is not an adversary proceeding, but rather is an inquiry to determine the facts.

Prior to the investigation the Article 32 officer should give to the accused and his counsel a copy of the entire file, a list of known witnesses, a summary of each witness's expected testimony, and any other evidence the government expects to present at trial. Although the investigating officer has no subpoena power, he should try, nevertheless, to obtain the actual presence of witnesses. If witnesses are not reasonably available, their sworn statements may be accepted and considered by the investigating officer.

The entire investigation must be conducted in the presence of the accused and his counsel. The usual procedure followed at the hearing is for the investigating officer to interrogate the witnesses and then for the accused to be given an opportunity to cross-examine the witnesses. All witnesses who are called to the Article 32 Investigation must testify under oath. Any conflicts that appear between a witness's Article 32 testimony and testimony later presented at trial can be used for impeachment or as a basis for perjury charges. As a general rule, court