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Chapter 3 Specific Justice Systems

and Victims' Rights

Members of the U.S. military are subject to the same rules of behavior as the civilian population, but as defenders of the nation, they may be ordered to commit acts that are considered criminal in the nonmilitary community. Therefore, they require a justice system that is tailored to their unique tasks and responsibilities. This chapter provides a brief overview of the military justice system--its structure, organization, and procedures for the charging, prosecution, and punishment of offenses. It explains the Victim-Witness Assistance Programs that provide victims and witnesses of military crime with guidance through the justice system. It outlines related programs designed to assist military families in coping with child and spousal abuse and to assist military personnel in coping with sexual harassment, sexual assault, and job discrimination. Finally this chapter discusses the measures the federal government has authorized to compensate victims of military crime and the use of negotiated restitution as a condition for pretrial agreements and parole.

Upon completion of this chapter, students will understand the following concepts:

• How offenses are charged, disposed, and punished in the military justice system, including nonjudicial punishments, punitive discharges, and appeals.

• The components of the military's Bill of Rights for victims of crime.

• The types of assistance provided to victims of crime in the military through the Family Advocacy Program, the Equal Opportunity Program, and the Navy's Sexual Assault Victim Intervention Program.

• Laws governing federal compensation for the victimization by military personnel of military dependants and of foreign inhabitants in a foreign country.

The last decade has witnessed heightened interest in the rights and needs of crime victims throughout the military. The Department of Defense (DoD) has issued extensive policy guidance to assign responsibilities and to establish procedures and program standards for providing victim assistance. Military installations around the world have established comprehensive programs and entered into Memoranda of Understanding with neighboring civilian communities to enhance and protect the rights and of victims throughout the military criminal justice system. Through collaboration with the Office for Victims of Crime, the DoD has provided training and technical assistance to improve victims' rights and services when military personnel are involved in crimes.

The Uniform Code of Military Justice (UCMJ), enacted by Congress, contains the substantive and procedural laws governing the military justice system. The President prescribes procedural rules and punishments for violations of crimes in the Manual for Courts-Martial (MCM).

Investigations of serious offenses involving military personnel such as rape, indecent assault, drugs, or larceny are usually conducted by a criminal investigative agency, such as the Army's Criminal Investigation Command (CID). For less serious offenses and most military-connected crimes, the authority rests with military or security police investigators. In cases involving very minor offenses, the immediate commander of the military member suspected will conduct or cause to be made a preliminary inquiry. Lawyers, known as judge advocates, are actively involved in advising commanders throughout the process.

Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished. The disposition decision is one of the most important and difficult decisions facing a commander. The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:

• The commander may choose to take no action. The circumstances surrounding an event actually may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime or that the only evidence is inadmissible. The commander may decide that other valid reasons exist not to prosecute.

• The commander may initiate administrative action against a service member. The commander might determine that the best disposition for this offense and this offender is to take administrative rather than punitive action. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation.

• The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. Nonjudicial punishment hearings are non-adversarial. They are not a "mini-trial" with questioning by opposing sides. The commander conducts the hearing. The service member may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the service member guilty, the commander must be convinced beyond a reasonable doubt that the service member committed the offense. The maximum punishment depends on the rank of the commander imposing punishment and the rank of the service member being punished. The service member has a right to appeal the imposing commander's decision to the next higher commander.

• The commander may dispose of the offense by court-martial. If the commander decides that the offense is serious enough to warrant trial by court-martial, the commander may exercise the fourth option, preferring and forwarding charges. The commander may choose from three potential levels of court-martial: summary, special, or general. These courts-martial differ in the procedures, rights, and possible punishment that can be adjudged:

- A summary court-martial is designed to dispose of minor offenses. Only enlisted service members may be tried by summary court-martial. A single officer presides over the hearing. The accused has no right to counsel but may hire an attorney to represent him or her.

- A special court-martial is an intermediate level composed of either a military judge alone, or at least three members and a judge. An enlisted service member may ask that at least one-third of the court members be enlisted. There is both a prosecutor, commonly referred to as the trial counsel, and a defense counsel. In addition, the accused may be represented by civilian counsel, at no expense to the government, or by an individually requested military counsel.

- A general court-martial is the military's highest level trial court. This court tries service members for the most serious crimes. The punishment authority of the general court-martial is limited by the maximum authorized punishment for each offense in the Manual for Courts-Martial. Before any charge is sent to a general court-martial, an Article 32 investigation must be conducted. The Article 32 investigation is closely akin to the civilian grand jury investigation. At the close of the hearing, the Article 32 officer makes a recommendation concerning the disposition of the charges. The recommendation is not binding on the convening authority. The general court-martial may take either of two forms. It may consist of a military judge and not less than five members, or solely of a military judge. The accused may elect trial by judge alone in all cases except those referred as capital cases. In a trial with court members, a minimum of five members must be present. An accused enlisted service member is entitled to at least one-third enlisted membership upon request.

The trial of a court-martial is not unlike a civilian criminal trial. The differences lie in the procedural requirements. The military follows rules of evidence patterned after the Federal Rules of Evidence. The members or judge hears evidence and renders a decision concerning the accused's guilt. In order to convict the accused, the members must be persuaded beyond a reasonable doubt that the accused is guilty. If the accused is convicted, a sentencing hearing is held.

An accused convicted by court-martial is entitled to review of his or her trial. Before approving a court-martial conviction and sentence, the convening authority must be satisfied beyond a reasonable doubt that the findings are supported by the evidence. The type of review depends on the level of trial and nature of the approved sentence. Some appeals may proceed all the way the United States Supreme Court.

The initial step in the appellate process is a review by the convening authority. The convening authority may approve all or any part of a legal sentence; he or she may mitigate a sentence or change the punishment to one of a different nature so long as the severity of the punishment is not increased.

If the convening authority approves a punitive discharge (either a bad-conduct discharge, dishonorable discharge, or dismissal) or confinement in excess of one year, the record of trial must be reviewed by the Department's Court of Criminal Appeals. This court, composed of military judges, will weigh the evidence and decide whether the findings and sentence are legally correct and, if so, whether the sentence is appropriate. The court may set aside the findings and sentence or may reduce the sentence, but it cannot increase the severity of the punishment.

The next court in the appellate process, the Court of Appeals for the Armed Forces, is composed of five civilian judges appointed by the President for fifteen year terms. This Court reviews questions of law only. Both the accused and the government may petition the Supreme Court for a writ of certiorari from the Court of Appeals for the Armed Forces. The review by the Supreme Court is entirely discretionary and extremely rare.

DoD Directive 1030.1, Victim and Witness Assistance (November 23, 1994) and DoD Instruction 1030.2, Victim and Witness Assistance Procedures (December 23, 1994) implement statutory requirements for victim and witness assistance and provide guidance for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.

Together, the Directive and Instruction provide policy guidance and specific procedures to be followed for victim and witness assistance in all sectors of the military. They apply to the Office of the Secretary of Defense and the following military components:

• The Chairman of the Joint Chiefs of Staff.

• The Unified Combatant Commands.

• The Inspector General of the Department of Defense.

• Department of Defense Field Activities and Defense Agencies.

• The Military Services, including the Coast Guard (when operating as a Service in the Navy).

The Directive includes a Bill of Rights which closely resembles the Federal Crime Victims' Bill of Rights. DoD officials are responsible for ensuring that victims of military crimes are afforded the rights to:

• Be treated with fairness and respect.

• Be reasonably protected from the offender.

• Be notified of court-martial proceedings.

• Be present at court-martial proceedings.

• Confer with the government attorney.

• Available restitution.

• Know outcome of trial and release from confinement.

The DoD victim and witness assistance programs cover the entire military justice process--from investigation through prosecution and confinement.

In providing services and assistance to victims, the DoD programs emphasize an interdisciplinary approach involving the following:

• Law enforcement personnel.

• Criminal investigators.

• Chaplains.

• Family advocacy personnel.

• Emergency room personnel.

• Family service center personnel.

• Equal opportunity personnel.

• Judge advocates.

• Unit commanding officers.

• Corrections personnel.

DoD victim and witness assistance programs use standard forms to advise victims and witnesses of their rights during all stages of a case. The following chart lists the DoD forms, when they are used, and their purpose:

An Interdisciplinary DoD Victim and Witness Assistance Council provides a forum for the exchange of information and the coordination of policy recommendations. The Council helps to foster the implementation of consistent and comprehensive policies and procedures to respond to crime victims and witnesses in all of the military services. A Senior Program Specialist with the U.S. Department of Justice, Office for Victims of Crime, serves as a liaison member.

Each branch of the military has issued regulations to further implement victim and witness programs and assign program responsibilities. [Army: DA Reg. 27-10, Chapter 18 (24 June 1996); Air Force: AF Instruction 51-201 (September 1996); and Navy/Marine Corps: SECNAV INSTR. 5800.11A (16 June 1995) and OPNAVINSTR 5800.7 (30 April 1996)]. All of these programs implement the guidelines and policies set forth in the DoD Directive and Instruction described above. There are some differences in the programs within each service. The Air Force and Army have designated the Service Judge Advocate General as component responsible official to provide oversight over the respective programs. The Chief of Naval Personnel is the component responsible official for the Navy.

Each military department has also established an interdisciplinary Victim and Witness Assistance Council, as well as a central repository for tracking notice of the status of offenders confined in military correctional facilities. In addition, as required by DoD policy, local councils have been established at each significant military installation to ensure that an interdisciplinary approach is followed by victim and witness service providers.

The following offices provide oversight for the implementation of victim assistance programs within the Office of the Secretary of Defense and in each military service:

• Office of the Secretary of Defense, OUSD (P&R) Office of Legal Policy, 4000 Defense Pentagon, Washington, DC 20301-4000. Phone 703­697­3387; Fax 703­693­6708.

• Department of the Army, OTJAG Criminal Law, 2200 Army Pentagon, Washington, DC 20310-2200 . Phone 703­588­6755; Fax 703­588­0144.

• Department of the Air Force. AFLSA/JAJM, 112 Luke Avenue, Room 343, Bolling Air Force Base, Washington, DC 20332-8000. Phone 202­767­1539; Fax 202­404­8755.
• Department of the Navy, Navy Personnel Command, Office of Legal Counsel (NPC-06), 5720 Integrity Drive, Millington, TN 38055-0600. Phone 901­874­3161; Fax 901­874­2615.

• Marine Corps. CMC, HQMC Judge Advocate Division (JAM), 2 Navy Annex, Washington, DC 20380-1775. Phone 703­614­1242. Fax 703­695­5111.

• Coast Guard, DIV CHIEF, OFFICE OF WORKLIFE/EAPPROG COMDT (G-WPW-2), 2100 Second Street S.W., Rm. 6400, Washington, DC 20593-0001. Phone 202­267­1329; Fax 202­267­4862.

RELATED SPECIAL MILITARY PROGRAMS

Family Advocacy Program. Each branch of the military services has a Family Advocacy Program that operates in accordance with DoD Directive 6400.1. They are designed to prevent child and spouse abuse, to promote early identification and intervention in cases of alleged child and spouse abuse, and to provide programs of rehabilitation and treatment for child and spouse abuse problems. To the maximum extent possible, DoD cooperates with responsible civilian authorities in efforts to address the problems to which this Directive applies. Each branch of service maintains a central registry containing data on reports of alleged child and spouse abuse.

If more than one child is a victim of sexual abuse in an out-of-home care setting, DoD may convene a multidisciplinary team of specially trained personnel to provide technical assistance. Technical assistance may include law enforcement investigations, forensic medical examinations, forensic mental health examinations, and victim assistance to the victim and family.

Equal Opportunity Program. DoD Directive 1350.2 establishes a system of discrimination complaint processing and resolution for all forms of unlawful discrimination and sexual harassment. Under DoD policy, the chain of command is responsible for creating and maintaining an environment to ensure that human relations and equal opportunity matters are taken seriously and to correct discriminatory practices. This includes the processing and resolving of complaints of unlawful discrimination and sexual harassment. It also provides for the training of all military personnel on how the complaint system functions and the protection against reprisal it affords individuals making complaints.

Navy's Sexual Assault Victim Intervention Program (SAVIP). The Navy SAVIP was established in 1994 as a comprehensive, standardized, victim-sensitive system response to sexual assault. The program provides sexual assault awareness and prevention education programs and victim advocacy and intervention services; and collects accurate data on sexual assault in the Navy. There are 28 SAVIP Coordinators working in 26 Family Service Centers.

TRANSITIONAL COMPENSATION [10 U.S.C. §1059]

Federal law authorizes payment of monthly transitional compensation for abused family members. DoD Instruction 1342.24, Transitional Compensation for Abused Dependents implements this law. Transitional compensation is designed to partially alleviate the financial hardship to the abused dependents for coming forward with the information needed to take action against the alleged abuser.

Dependents of members of the Armed Forces are eligible for transitional compensation if the military member was:

• Separated from active duty under a court-martial sentence resulting from a dependent-abuse offense.

• Administratively separated from active duty if the basis for separation includes a dependent-abuse offense.

• Sentenced to forfeiture of all pay and allowances by a court-martial which has convicted the member of a dependent-abuse offense.

Monthly payments to a spouse will be at the rate in effect for the payment of dependency and indemnity compensation (DIC). This amount is currently $811 for the spouse and $120 for each child. If the spouse has custody of a dependent child(ren) of the member, the amount of compensation to the spouse will increase for each child. If there is no eligible spouse, compensation is paid to a dependent child or children in equal shares. Transitional compensation beneficiaries are also entitled to commissary and exchange privileges as long as payments are received. The minimum duration of the transitional compensation is the length of the member's remaining active duty commitment or twelve months, whichever is longer. The maximum duration of the compensation payments is thirty-six months.

Payments will be forfeited if the spouse remarries and are not resumed if remarriage ends. If payments to the spouse terminate due to remarriage and there is a dependent child not living in the same household as the spouse or member, payments will be made to the dependent child. In addition, payments end on the date the abuser begins residing in the household and will not be resumed once terminated.

PAYMENTS FROM RETIRED PAY FOR ABUSED DEPENDENTS [10 U.S.C. §1408(H)]

Federal law also authorizes payments of portions of retired pay to help alleviate the financial hardship to the abused dependents for coming forward with the information needed to take action against the military sponsor. Spouses of members of the Armed Forces are eligible for these payments if the military member was retirement eligible and separated from active duty under a court-martial sentence resulting from a dependent-abuse offense or administratively separated from active duty if the basis for separation includes a dependent-abuse offense.

In order to receive payments from retired pay, the spouse or former spouse must obtain a civilian court order (typically done as part of a legal separation or divorce action) setting forth the spouse's portion of the accused's retired pay. The spouse/former spouse must have been married to the abusive member for at least ten years during which the member performed at least 10 years creditable service towards retirement (the ten-year periods must overlap). The spouse may not receive payments under both this program and the Transitional Compensation Program. If the spouse is eligible for both, the spouse must elect which payment to receive.

ARTICLE 139, UCMJ-PROPERTY CLAIMS

Under article 139, UCMJ, commanders may direct that service members pay victims for willful damage or theft of property. The damage or theft must have been intentional and not caused inadvertently or thoughtlessly through simple or gross negligence. It does include damage caused through riotous, violent or disorderly conduct or theft caused by larceny, forgery, embezzlement, fraud, or misappropriation. Claims must be filed within ninety days of the damage or loss, unless good cause is shown. Claims should be made to the commander of the alleged offender.

FOREIGN CLAIMS ACT

Under some circumstances, the Foreign Claims Act authorizes payment of claims for property damage, personal injury, or death caused by military personnel to a foreign inhabitant in a foreign country. Under the Act, the United States can pay for intentional acts committed by service members abroad. Victims must file a claim under the Act within two years of the damage or injury.

RESTITUTION FROM OFFENDER

The Uniform Code of Military Justice does not authorize restitution as a form of a court-martial sentence. DoD policy, however, encourages military prosecutors, in appropriate cases, to include a requirement to pay restitution as a condition to a pretrial agreement. Payment of restitution to a victim may also be included as a condition of parole.

COMPENSATION FOR MILITARY VICTIMS UNDER STATE PROGRAMS

Victims of crimes committed by military personnel may be eligible for compensation from state compensation programs. To be eligible for grants from the Crime Victims Fund, state compensation programs must cover crimes falling under federal jurisdiction within the states, including crimes occurring on Indian reservations, National Park lands, or military installations. State compensation programs also must include coverage for their own residents who are victims of terrorism in foreign countries. Accordingly, military personnel and those accompanying the armed forces may obtain compensation from their state of residency for financial losses stemming from overseas terrorism incidents.

State compensation programs vary in scope and procedures. Most programs pay for medical care, mental health counseling, lost wages and, in cases of homicide, funerals and lost support, and can help victims preserve some financial stability and continuity. With very few exceptions, compensation programs pay only for expenses related to personal injury and do not cover property that is stolen, lost, or damaged. (Eyeglasses, hearing aids, and medical prostheses are exceptions, and some programs cover crime-scene cleanup.) Most states cover mental health counseling for family members of homicide victims, and in some cases, relatives and household members.

State compensation programs are "payers of last resort," meaning that they cannot offer benefits for expenses covered by "collateral resources," such as military benefits, medical and automobile insurance, other public assistance programs, and restitution received. State compensation programs generally impose an overall cap on the amount of compensation payable to a victim for a crime and caps on specific expenses, such as funeral expenses, and also contain time limits for applying for compensation.

Military Justice Self-Examination

2. Briefly describe the DoD interdisciplinary approach to providing services and assistance to victims.

3. Describe one victim assistance program available to victims of crime in the military justice system.

4. Under what circumstances may victims of crimes committed by military personnel be eligible for compensation from state victim compensation programs?

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