Special Court-Martial in US Military (2024) – All You Need to Know

Military justice cases, even relatively routine or minor ones, can have serious consequences for the service members involved. When an offense that would be a misdemeanor in the civilian world occurs on a military base or other installation, one likely result is the convening of a special court-martial to investigate and try the charges–and, if deemed appropriate, to punish the accused.

Understanding the Special Court-Martial

Special courts-martial play a crucial role in the military justice system, addressing offenses that fall within a wide range of minor infractions up to more serious crimes.

While the use of the word “special” can incorrectly convey that this process is reserved for the most complex or high-profile cases, a special court-martial is actually a lesser, more routine type of court-martial (as compared to a general court-martial, which is convened for more serious, felony-type crimes). Extremely minor crimes are dealt with via a third process, known as a summary court-martial, so a special court-martial is said to have “intermediate” authority.

New Special Court-Martial Rules for 2024

Courts-martial are governed by a robust legal framework published within the United States Manual for Courts-Martial, or MCM. The MCM is a frequently updated document, with a new edition having been published in 2024.

This new edition was made necessary due to many amendments set forth in a July 2024 Executive Order (EO 14103) by President Joe Biden, as well as some new rules included in this year’s NDAA (National Defense Authorization Act, i.e., our annual military budget).

The full scope of changes and amendments is quite vast, but here are some of the more notable items:

• Mental Competency Considerations: Some of the new court-martial amendments for 2024 bring changes to the process of determining whether the accused is mentally fit to stand trial.
• Sentencing Considerations: The revised 2024 rules also affect sentencing guidelines. The age and experience of the accused can now be taken into consideration, as well as the offense’s real-world impact on national security. This allows for a more flexible and nuanced approach when determining appropriate sentences.
• Plea Revisions: The types of pleas available and their definitions are also impacted by the 2024 amendments.
• Protected Communications to Clergy: One new amendment establishes a privilege allowing individuals to refuse to disclose confidential communications with a clergy member or the direct assistant of a clergy member, whether as a matter of formal religious practice or simply something that was said in confidence.
• Statements in “Ancient Documents”: The 2024 rules also allow for so-called ancient documents to be admissible in court, so long as their authenticity can be verified. “Ancient” here means any paperwork prepared before 1998.
• Many other procedural amendments that your attorney can more fully explain if they happen to be relevant to your individual circumstances.

As we mentioned earlier, other recent rule changes were made via the annual National Defense Authorization Act (NDAA), the most recent version of which was signed into law on December 22, 2022. These rule changes differ from the amendments made via Executive Order in one key way because most of them will not take effect until 2 years after this NDAA’s passing and, therefore, have no impact on cases already underway.

Some changes to the court-martial process made by way of the NDAA include:

• Randomized Selection of Court-Martial Members: The latest NDAA mandates randomized selection of the servicemembers detailed to a court-martial, similar to a randomly selected jury of peers in the real world. This is intended to ensure fair and impartial panels oversee courts-martial, preventing the convening authority from stacking the proverbial deck in favor of the Government prosecutors’ case.
• Anonymity of Convening Authority: The next section of the NDAA includes language stating that the name, rank, and position of the court’s convening authority (i.e., the commander or official who referred the charges for trial) should not be specified in open court. There is an exception if the convening authority happens to be the Secretary of Defense or the President of the United States.
• Judicial Review of Court-Martial Convictions: This NDAA also expands the jurisdiction of the Courts of Criminal Appeals, in effect allowing for judicial review of any conviction by a court-martial, including a general court-martial, irrespective of the sentence imposed. This change provides service members with more opportunities for seeking appeals and additionally clarifies the scope of reviews.

The court-martial process is complex, and the fast pace of changes and amendments can make it downright overwhelming. It is likely you still have many more questions about special courts-martial. If you need direct, one-on-one guidance, please reach out to The Law Center P.C. to set up a consultation at your earliest convenience.

FAQs About Special Court-Martial in US Military

What Is a Special Court-Martial?

A special court-martial is a military legal proceeding with intermediate authority, handling more serious offenses than a summary court-martial but less serious offenses than a general court-martial. It is analogous to a misdemeanor criminal trial in the civilian world and, therefore, plays a key and routine role in the military justice system.

Who Has Special Court-Martial Authority?

The convening authority for a special court-martial is vested in people at key command positions, often at a squadron or company level. This authority enables them to convene special courts-martial and administer justice for offenses that fall within that purview.

What Is the Difference Between a Court-Martial and a Special Court-Martial?

A special court-martial, as its name implies, is just a type of court-martial. A court-martial, more generally, refers to the military process of conducting trials for service members accused of crimes, whereas the “special” court-martial is merely a classification for “intermediate” trials of this type. This means neither the most severe nor least severe offenses are tried via special court-martial, but a range of misdemeanor-like offenses can be.

Which Types of Crimes Does a Special Court-Martial Focus On?

Special courts-martial focus on crimes of intermediate severity, most of which would be akin to moderate or serious misdemeanors in civilian life. The convening of a special court-martial can address a wide range of criminal actions or behaviors that breach military discipline but which fall short of the gravity addressed by a general court-martial.

The Law Center P.C. – Highly Effective Legal Representation for Special Court-Martial Cases

Military justice cases can be quite different from civilian court and, therefore, demand specialized knowledge and training to navigate effectively. At The Law Center P.C., we are not just another law firm willing to take on service members as clients. We deeply understand the many intricacies and quirks of military law, thanks in part to one of our top attorneys, Jason Wareham, who joined the firm after a storied career as a U.S. Marine Corps Judge Advocate.

In fact, Attorney Wareham was one of the longest continuously serving litigators in the history of that role and was responsible for keeping our country safe in some of the most high-stakes national security matters imaginable. Today, Jason and his team work out of our Littleton, CO offices and are proud to help American servicemembers overcome legal challenges, both routine and complex–including the convening of a special court-martial.

If you or a loved one needs help with a special court-martial case, don’t hesitate to reach out for a confidential and compassionate consultation. We’re here to help!