The Letter U

Today’s post is brought to you by the letter U. U is for UCMJ. The Uniform Code of Military Justice is an odd animal. It combines aspects of The Enlightenment, a paternal social structure, military necessity and fascism. How does a military reconcile the high ideals of its legal system with the needs of a military environment? The same way a duck billed platypus meets the needs of its environment, a system that looks strange as a preacher in a whore house but still works.
The first and foremost factor in this system is the need for obedience under life threatening levels of stress. The second is respect for a chain of command that has to maintain this obedience. Third is the constitutional need to protect soldiers rights as citizens as will as soldiers.
The line that you sign away your rights when you enlist is bullshit. The truth is that you exchange your civilian rights for military ones. Some people never understand the difference.
The absolute bottom rung on the discipline ladder is ‘corrective training’ usually in the form of some physical exertion that will result a soldier not wanting to repeat the bad behavior. Get a little smart with a sergeant and you may find yourself practicing 3-5 second rushes through the company training area. Loose a weapon, and you may have to low crawl to every NCO in the unit to get a piece of it back. Corrective training replaced Wall to Wall counseling in the mid 80’s.
Wall to Wall, or turret counseling was where an enlisted man repeatedly tripped and fell into walls, turrets or down stairs until he had learned the error of his ways. This is no longer a practice condoned by the US military. It can now result in the counselor being reduced to a pay grade where he will be the subject of said method. In some of the more highly strung combat units this still happens. I can remember training sessions during basic where I wished the drill sergeant would just hit me. (A brief web search can call up a humorous manual on wall to wall counseling, but no matter how official it looks, one should remember that it is signed by COL Charles Norris.)
The lowest level of the military justice system is the counseling statement. Not all counseling statements are bad. I have a really long one that tells the world how I have more additional duties a dog has fleas. The statement is really supposed to be a record how you are doing and what goals you have. Unless you screw up.
A troop mouths off a sergeant or forgets some gear, and he can expect to get some sort of informal reprimand from a quick 10 pushups, to a good long smoke session that leaves the troop soaked in sweat. The soldier’s participation is voluntary. He can require that the misdeed be put in writing and the training outlined there. Smart troops do not do this. Exhaustion passes, paperwork has a life of its own. The more aggressive, the closer to the sharp end a unit is the more likely a soldier will forgo anything on paper and simply pay the price in sweat.
If a soldier still does not respond, or the offense is more serious the soldier will go through an Article 15, or Non-judicial punishment. There are different levels of this, usually a troop can ask for a court martial instead, smart troops suck it up, unless there is something really stinky about these proceedings. The commander, and in the army commanders have all sorts of really interesting powers, looks at the facts and makes a dictatorial decision that within his legal powers. His options are various levels of loss of pay, extra duty and restrictions as well as taking away rank. The further up the chain it goes the more a commander can take, and the more likely a severe the punishment can be. Unlike the civilian justice system there are usually a lot of chances to fix your behavior before you are standing in front of the commander. He can take your money, you free time and your rank.
Other soldiers in your chain of command can legally order you into a place or to perform acts that could cost you your life. We train for a time of war, and in time of war somebody has to issue the order to take a hill or to walk point or check something out. This is the reason that the legal system follows the same chain of command that those orders do.
Does this mean that the commander, or other leader has absolute power to do as he pleases? Not in the least. The balance to the immediate power of a commander is in two forms, both are paternal in nature. The first is that in courts martial higher head quarters reviews the findings, and second is that the noncommissioned officers in his chain of command should and usually are standing right beside him during the proceedings.
There are other interesting points, like the judge can throw out plea bargains, and enlisted men can require that there be enlisted men on their jury. But the really fun part are the things that the military judges as crimes and their punishments.
My favorite is the line ‘prejudicial to the good order and conduct of the unit’ many crimes are listed as such because they are. Does this mean that the crime such as murder, theft or rape are not crimes if they are for the good order of the unit? Officers are forbidden from talking smack about their superiors, but enlisted men get a free ride. (That is a good one as if every grunt was punished for talking shit about the chain of command there wouldn’t be any enlisted men.)
Article 120: Rape is another really odd one, it is the only place where the burden of proof is on the accused and death is a listed possible punishment. Is there any civil court that severe? Death is listed as a punishment for some many crimes that you would think the code was written by Texans, it may have been. Desertion, and murder and rape among others all have a maximum penalty of death.
Can anyone tell me when the last time the army actually killed a soldier by hanging or firing squad. A side note, in some armies firing squad is for soldierly offences, but hanging is for cowards and deserters. There is a section on adultery that is still enforced (seen it done on this mobilization and the last one), sexual harassment can be criminally charged, and another section on sodomy. I have never seen that last one used, as it covers everything but the missionary position. (The whole position thing might be a military urban myth.)
Then there is the whole Jury selection. Normally one might expect to be tried by a jury of their peers. Not only are officers and enlisted men very much not peers, but the soldiers available for a jury in the states often have nothing in common with the soldier being tried. Do I want a senior NCO who has spent his career in higher headquarters judging a call I made while under fire? I think not.
The legal counsel thing is also a little stilted junior lawyers are generally the defense lawyers and senior ones the prosecutors. My info on that is a little dated it may have changed. Anyway just doing my part on misinforming the populace. UCMJ is an odd little platypus, but it is the one I am subject to, and it seems to survive just fine.