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How does a special court-martial differ from other punishments?

In last week’s post, we discussed the recommendation made after Sgt. Bergdahl’s Article 32 hearing. As readers may recall, the number refers to a provision in the Uniform Code of Military Justice. Today’s post provides an update into the procedural wheels of the military’s criminal justice system at work.

Bergdahl was the officer involved in the controversial prisoner swap in 2014. Although the Taliban captured the officer, Bergdahl was also accused of desertion and misbehavior before the enemy. If his case is moved to a special court-martial, the maximum penalties will be significantly lower. Instead of a potential life-sentence, Bergdahl could receive no more than one year in jail. Instead of a punitive discharge, the type of discharge after a special court-martial cannot be more severe than for bad conduct. 

Although the Article 32 recommendation is a favorable development in Bergdahl’s case, the response of his attorney illustrates why a service member accused of a crime should consult with outside counsel. Specifically, Bergdahl’s defense team is pushing for a type of non-judicial punishment under Article 15, rather than a special court-martial.

Although a NJP is not the same as a trial outcome or a conviction, it still implicates certain procedures. First, only minor offenses are handled under Article 15, and the commanding officer has discretion in determining whether an alleged offense fits that definition.

The commanding officer is generally expected to inquire into the factual allegations, offer a hearing to the accused, and make a post-hearing recommendation. That recommendation can be for dismissal of the charges, imposition of a NJP, or a referral to a court-martial. Finally, only a commanding officer may carry out a non-judicial punishment.

Source: Army Times, “Lawyer: Officer recommends no jail for Bergdahl,” Oct. 10, 2015

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