Summary court-martial Convening Authority
Information of summary court-martial convening authority:
Authority to Convene. A SCM is convened (created) by an individual authorized by law to convene SCMs. Article 24, of the Uniform Code of Military Justice (UCMJ) and R.C.M. 1302(a), specify those persons who have the power to convene an SCM. Commanding officers authorized to convene a General Court-Martial (GCM) or Special Court-Martial (SPCM) are also empowered to convene SCMs. Thus, the commanding officer of an installation and commanding officers of Brigades have this authority. Additionally, most battalion level commanders have this authority. Finally, the MCM states that a commanding officer of a detached company or other detachment of the Army also has the authority to convene a SCM.
- Court-Martial Convening Authority Generally
- Battalion commander (Lieutenant Colonel): summary court-martial convening authority (SCMCA).
- Brigade commander (Colonel): special court-martial convening authority (SPCMCA). Division commander (Major General): general court-martial convening authority (GCMCA).
- Withhold and Delegation of Authority
- Withhold: Superior commanders may withhold or withdraw UCMJ authority from subordinate commanders. In particular, many Army GCMCAs withhold authority to convene Bad-Conduct Discharge (BCD)-Special Courts-Martial.
- Delegation: The authority to convene SCMs is vested in the office of the authorized command and not in the person of its commander. Thus, LTC John Smith has SCM convening authority while actually performing his duty as the commanding officer of his battalion, but loses his authority when he goes on leave or is absent from his command for other reasons. The power to convene SCMs is nondelegable and in no event can a subordinate exercise such authority “by direction.” When LTC Smith is on leave from his command, his authority to convene SCMs is ordinarily placed in his temporary successor in command (usually the executive officer) who assumes command by way of assumption of command orders.
- Options of SCMCA [Articles 20 and 24 UCMJ]
- Dismiss charges. Dismissal does not bar subsequent action under R.C.M. 306(c) [R.C.M. 403(b)(1)].
- Alternative disposition. The SCMCA could handle the matter with a Field Grade Article 15.
- Return to subordinate commander. The SCMCA may return to a subordinate commander for her independent discretion on how the case should be handled. No recommendation may be made by the SCMCA [R.C.M. 401(c)(2)(B) and 403(b)(2)].
- Forward to superior commander with recommendation [R.C.M. 403(b)(3)]. Recording the receipt of charges on charge sheet, discussed infra ; tolls statute of limitations [R.C.M. 403(a)].
- Refer to a SCM [R.C.M. 403(b)(4)].
- Direct an Article 32 investigation [R.C.M. 403(b)(5)] (only if also SPCMCA).
Mechanics of convening. Before any case can be brought before a SCM, the court must be properly convened (created). It is created by the order of the convening authority detailing the SCM officer to the court. R.C.M. 504(d)(2) requires that the convening order specify that it is a SCM and designate the SCM officer. Additionally, the convening order may designate where the court-martial will meet.
A SCM is a one-officer court-martial. As a jurisdictional prerequisite, this officer must be a commissioned officer, on active duty, and of the same armed force as the accused. Where practicable, the officer’s grade should not be below a captain (O-3).
- The SCM should be best qualified by reason of age, education, experience, and judicial temperament as his performance will have a direct impact upon the morale and discipline of the command.
- Where more than one commissioned officer is present within the command or unit, the convening authority may not serve as SCM. When the convening authority is the only commissioned officer in the unit, however, she may serve as SCM and this fact should be noted in the convening order attached to the record of trial. In such a situation, the better practice would be to appoint a SCM officer from outside the command, as the SCM officer need not be from the same command as the accused.
- The SCM officer assumes the burden of prosecution, defense, judge, and jury as she must thoroughly and impartially inquire into both sides of the matter and ensure that the interests of both the government and the accused are safeguarded and that justice is done. While she may seek advice from her legal advisor on questions of law, she may not seek advice from anyone on questions of fact, since she has an independent duty to make these determinations. R.C.M. 1301(b).
- Persons. Article 20, UCMJ, and R.C.M. 1301(c) provide that a SCM has the power (jurisdiction) to try only those enlisted persons who consent to trial by SCM. The right of an enlisted accused to refuse trial by SCM is absolute. No commissioned officer, warrant officer, cadet, or person not subject to the UCMJ (Article 2, UCMJ) may be tried by SCM. The accused must be subject to the UCMJ at the time of the offense and at the time of trial; otherwise, the court- martial lacks jurisdiction over the person of the accused.
- Offense. A SCM has the power to try all offenses described in the UCMJ except those for which a mandatory punishment beyond the maximum imposable at a SCM is prescribed by the UCMJ. Cases for which the maximum penalty is death are capital offenses and cannot be tried by SCM. See R.C.M. 1004 for a discussion of capital offenses.
- Any minor offense can be disposed of by SCM. For a discussion of what constitutes a minor offense, refer to Part V, MCM under Section 1(e).
- In 1977, the United States Court of Military Appeals ruled that the jurisdiction of SCMs is limited to “disciplinary actions concerned solely with minor military offenses unknown in the civilian society.” United States v. Booker , 3 M.J. 443 (C.M.A. 1977). Read literally, this would have precluded SCMs from trying civilian crimes such as assault, larceny, drug offenses, etc. Following a reconsideration of that decision, the court rescinded that ruling and affirmed that “with the exception of capital crimes, nothing whatever precludes the exercise of summary court-martial jurisdiction over serious offenses in violation of the Uniform Code of Military Justice.” United States v. Booker , 5 M.J. 246 (C.M.A. 1978)