Unlawful Command Influence

Mortal Enemy.  Unlawful Command Influence (UCI) has frequently been called the “mortal enemy of military justice.”   UCI occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases.  Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.

While some types of influence are unlawful and prohibited by the Uniform Code of Military Justice (UCMJ), other types of influence are lawful, proper, and in certain circumstances a necessary part of leadership.  The prohibition against UCI does not mean that a commander may abdicate responsibility for correcting disciplinary problems.  Rather, the commander must vigilantly insure that the command action does not encroach upon the independence of the other participants in the military justice system.

Rules In General.  Here are some general rules regarding Unlawful Command Influence:

1. The Commander may not order a subordinate to dispose of a case in a certain way.  The law gives independent discretion to each commander at every level possessing authority to convene courts-martial.  A senior commander may not try to influence the exercise of that discretion.  However, a senior commander may:
   1. Personally dispose of a case at the level authorized for that offense and for that commander.
   2. Send a case back to a lower-level commander for that subordinate’s independent action.
   3. Send a case to a higher commander with a recommendation for disposition.
   4. Withdraw subordinate authority on particular types of cases.
   5. Order charges pending at a lower level transmitted up for further consideration, including, if appropriate, referral.

Mentor subordinates, but do so recognizing that there exists the potential for misinterpreting the commander’s intentions.

The commander must not have an inflexible policy on the disposition of a case or the punishment to be imposed.  A convening authority must consider each case individually on its own merits.

A commander who is the accuser, may not thereafter act as a convening authority to refer the case to a court-martial.  The commander is considered to be “disqualified” to act as a convening authority and must forward the charges to a superior convening authority.  A commander is considered to be an accuser when he or she:

1. Formally signs and swears to the charges on the charge sheet (prefers the charges), or
2. Directs that the charges be signed and sworn to by another, or
3. Has an interest, other than an official interest, in the prosecution of the accused.

The commander may neither select nor remove court members in order to obtain a particular result in a particular trial.  Selections must be based upon the criteria contained in Article 25, UCMJ.  Those criteria include: age and experience, education and training, length of service, and judicial temperament.

No pressure may be placed on the military judge or court members to arrive at a particular decision.

No person may invade the independent discretion of the military judge.  Commanders may not question or seek explanation or justification for a judge’s decision.

Witnesses may not be intimidated or discouraged from testifying.

The court decides punishment.  An accused may not be punished before trial, but may be placed in pretrial confinement if there is a risk of flight, if the accused poses a serious threat to the community, or if the accused is likely to engage in further misconduct.

Impartial Review.  When a convening authority reviews the result of a court-martial and determines whether to approve the findings and sentence, he or she does so in a judicial capacity.  As such, the convening authority has a duty to review impartially military justice actions.  The convening authority may not have an inflexible attitude towards clemency.