Command Disciplinary Options Under the UCMJ

Prosecutorial Discretion.  In civilian communities, police and prosecutors exercise discretion in deciding whether an offense should be charged and offenders punished.  In the military, commanders make this decision.  Once the investigation is complete, the commander must make a decision about how to dispose of the case.  Throughout the investigation, the commander has a lawyer (judge advocate) available to assist and provide advice.  With the assistance of his lawyer, the commander decides whether a case will be resolved administratively, through a  nonjudicial punishment action under Article 15, UCMJ, or referred to trial, and what the charges will be.  The disposition decision is one of the most important and difficult decisions facing a commander.  Each commander in the chain of command has independent, yet overlapping discretion to dispose of offenses within the limits of the officer’s authority.  The commander at the lowest level makes the initial decision regarding disposition.  Under the Uniform Code of Military Justice (UCMJ), superior commanders may not seek to improperly influence the subordinate commander’s exercise of independent judgment or disciplinary action.  However, nothing prevents a superior commander from withholding authority to himself or herself to dispose of offenses in individual cases or types of cases (e.g., officers; drug cases, DUI). 

Levels Of Disposition.  Charges can be disposed of at four levels within the military justice system: (1) by the unit commander who exercises immediate Article 15, UCMJ, jurisdiction over the accused;  (2) by the summary court-martial convening authority (normally a battalion or squadron commander);  (3) by the special court-martial convening authority (normally a brigade or wing commander); and (4) by the general court-martial convening authority (normally a general officer who is commanding).  Each commander or convening authority within the military justice chain has a range of available options and each commander exercises discretion in selecting one of the available options or makes a recommendation to a higher commander.  As charges progress up the military justice chain, the convening authority has more options available.  Any higher-level convening authority has all the powers and alternatives of any lower-level convening authority or commander.  Thus a summary court-martial convening authority has available all the options of the immediate commander and additional alternatives as a convening authority.  Similarly, a special court-martial convening authority is empowered to convene a summary court-martial as well as a special court-martial.  Finally, a general court-martial convening authority possesses all the powers of the subordinate commanders and convening authorities.