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Does military justice value discipline more than due process?

Does the military afford procedural fairness to a service member accused of disciplinary or other violations? A recent book observes that military justice is different from civilian justice, serving several simultaneous aims, such as justice, due process and discipline. When it comes to a court-martial, however, the author believes that discipline is paramount, with justice and due process subordinate.

A defendant facing one or more types of courts-martial or a military commission might question what rights he has against the military machine. Although the military’s jurisdiction is separate, it is still guided by procedures found in the Uniform Code of Military Justice.

Our law firm focuses on military defense. We have helped military clients in many different types of proceedings. Notably, a strategy can be formulated early in the process, such as in Article 32 investigations that hopefully won’t culminate in a court-martial. In other instances, the harm may already have occurred, such as a security clearance revocation. Yet forums are present even for challenging those actions, such as Personnel Security Appeal Board hearings.

As in other types of litigation, a lesser offense strategy may sometimes be pursued. For example, our law firm recently achieved a discharge upgrade on behalf of a service member who had received a bad conduct discharge arising from drug use allegations. Our law firm presented evidence of the client’s post-service good conduct, emphasizing that a temporary lapse in judgment should not forever penalize an individual with otherwise good character. The Navy Discharge Review Board agreed and upgraded the discharge. The upgrade now makes it possible for the client to seek certain military benefits that were not available under the bad conduct discharge.

Source: The Wall Street Journal, “Duty, Justice and Discipline,” John Fabian Witt, May 20, 2016

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