Secretary Mattis, the UCMJ, and the power of the ISIC

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Secretary Mattis, the UCMJ, and the power of the ISIC

Sec­re­tary Mat­tis recently released a memo direct­ing com­man­ders to make bet­ter use of the mil­i­tary jus­tice sys­tem, likely in response to the plum­met­ing num­ber of court mar­tial cases across all ser­vices. For the non-​military per­son, this might sound absurd: why are we unhappy when we have less crime among the ranks? A bit of expla­na­tion is required.

In the civil­ian world, for non-​serious offenses (say a speed­ing ticket), you get time in front of a judge to argue your case. You can get a lawyer, and you can typ­i­cally appeal any deci­sion. Sim­i­lar rules apply for more seri­ous offenses, except instead of a state court it may become a fed­eral court depend­ing on the rules. You still get the same legal pro­tec­tion, and seri­ous crimes will require a jury con­vict you instead of a judge.

Mil­i­tary jus­tice is dif­fer­ent. If a ser­vice mem­ber is accused of a crime, there is a short inves­ti­ga­tion (con­ducted by a Pre­lim­i­nary Inquiry Offi­cer, who is nor­mally not a legal offi­cer). If the inves­ti­ga­tion shows mis­con­duct, then the accused is nor­mally sent to a dis­ci­pli­nary review board (DRB), which is a group of senior enlisted mem­bers who ask a lot of ques­tions and try to rec­on­cile con­flict­ing por­tions of the accused mem­bers story. The results of the DRB get pre­sented to the Com­mand­ing Offi­cer (CO), who now has a deci­sion to make:

  • He can dis­miss the charges
  • He can dis­pose of the charges at Non-​Judicial Pun­ish­ment (NJP)
  • He can refer the mat­ter to Courts-​Martial

AND, in con­junc­tion with all of these, he can take “admin­is­tra­tive actions” (more on that in a moment).

Decid­ing for NJP (some­times called Captain’s Mast or Arti­cle 15, in ref­er­ence to that por­tion of the UCMJ) requires the mem­ber stand in front of the CO, nor­mally in a dress uni­form, and present his or her case. The CO reads through a script, asks a lot of ques­tions, and then decides guilty or inno­cent. If guilty, the CO can assign pun­ish­ment, depend­ing on his or her rank and the rank of the guilty (see this table). The accused can appeal NJP, unless that per­son is deployed/​out at sea.

The Courts-​Martial process depends on which Courts-​Martial you use. For enlisted ser­vice mem­bers accused of minor crimes, the Sum­mary Courts-​Martial can be used, which is quick and can assign some hard pun­ish­ments (30 days in jail, 45 days hard labor). Spe­cial and Gen­eral Courts-​Martials look more like a civil­ian trial by jury. They can impose hard pun­ish­ments, includ­ing mul­ti­ple years in prison and even death (although that hasn’t hap­pened since 1961).

So, given this whole struc­ture, is Mat­tis right about Com­man­ders shirk­ing their duties? The answer is…sort of. There are plenty of bar­ri­ers to prop­erly using mil­i­tary justice:

1. Poor train­ing. New Com­mand­ing Offi­cers get a whole 3 days of legal train­ing. You read that cor­rectly…three days. Most of that train­ing con­cerns ethics, rather than actual legal pro­ceed­ings. The Navy Legal response to this lack of train­ing is that COs need to “use their JAG offi­cer” if they have legal ques­tions. But as the Mil­i­tary Times arti­cle points out, JAGs are fairly swamped, so if every rou­tine request has to hit a JAG, the real­ity is that many ques­tions will go unanswered.

2. Lack of Sum­mary Courts-​Martial. Poor train­ing causes a prob­lem in that many COs have never heard of a Sum­mary Courts-​Martial. The Sum­mary Courts-​Martial is a good way to get medium level sen­tences proper pun­ish­ment, but right now it isn’t well adver­tised or used.

For exam­ple, there was a rash of drug admin­is­tra­tive sep­a­ra­tions at sub­ma­rine school, where Sailors would get through Navy basic train­ing and fin­ish sub­ma­rine train­ing, but before their first deploy­ment they would sud­denly flag for smok­ing mar­i­juana. It was fairly con­ve­nient for the Sailor, but ter­ri­ble for the tax­payer: the Navy would have to sep­a­rate them, they would never deploy, and then they could get hired on the out­side based on train­ing the Navy paid for, with no return on invest­ment of tax­payer money. The local legal team per­suaded the schoolhouse’s CO to start refer­ring mem­bers to Sum­mary Courts-​Martial instead. The first Sailor they pun­ished went to the local fed­eral jail for 60 days. Dur­ing that time, he was allowed to come back to speak to incom­ing classes and describe just how much fun it was to be in jail along­side mur­der­ers and rapists. Mar­i­juana use, mirac­u­lously, plummeted.

3. Lack of ISIC sup­port. The great­est sys­tems in the world can be brought down by mediocre peo­ple, and mil­i­tary jus­tice is no excep­tion. If you have a ser­vice mem­ber that you know will appeal NJP, you now have the fun task of per­suad­ing your ISIC that this per­son deserves a Courts-​Martial. The ISIC is higher in rank and nor­mally phys­i­cally sep­a­rated from your com­mand. That per­son isn’t close to the prob­lem. Most ISICs don’t sup­port Courts-​Martial unless the offense is being inves­ti­gated (as in, rape, mur­der, etc.).

Given these prob­lems, I’m not sur­prised COs turn to admin­is­tra­tive actions. If you know your boss won’t sup­port send­ing some­one to a Sum­mary Courts-​Martial, and you know the ser­vice mem­ber will try to appeal, what do you do? How do you get quick jus­tice and pre­vent some­one from run­ning rough-​shod over your command?

Sim­ple. You hit them with paperwork.

You can “fire” them through admin­is­tra­tive sep­a­ra­tion. In most cases, that mem­ber is out of the mil­i­tary in two weeks. You can also remove war­fare qual­i­fi­ca­tions, give them a bad eval­u­a­tion, and plenty of other things to ensure they won’t select for the next rank. All of these can’t be appealed. When you want to main­tain good order and dis­ci­pline, some­times the quick route is the best.

I agree with Sec­re­tary Mat­tis’ memo, but I think he needs to go a step fur­ther. He should be increas­ing the required legal train­ing for those that exe­cute com­mand author­ity. He should be encour­ag­ing the use of Sum­mary Courts-​Martial to dis­pose of lower-​level cases quickly and fairly. Above all else, he should release a sep­a­rate memo to senior offi­cers (O-​6 and above) that encour­ages them to sup­port sub­or­di­nates that want to refer cases to Courts-​Martial. If com­mand­ing offi­cers had the train­ing and felt that their ISIC would sup­port them, they would be much more inclined to take the cor­rect route, rather than the easy one.


This post rep­re­sents the views of the author and not those of the Depart­ment of Defense, Depart­ment of the Navy, or any other gov­ern­ment agency.

I pre­sented this view­point as some­one who had to exer­cise Arti­cle 15 author­ity over other ser­vice mem­bers for a vari­ety of dif­fer­ent cir­cum­stances. In some cases, the per­son was inno­cent and I dis­missed charges. In oth­ers, I assigned pun­ish­ment, which often ended that person’s naval career. I was for­tu­nate to receive good legal advice and good sup­port from my supe­ri­ors, but I openly admit it was one of the hard­est parts of my job at the time.

Secretary Mattis recently released a memo directing commanders to make better use of the military justice system, likely in response to the plummeting number of court martial cases across all services. For the non-military person, this might sound absurd: why are we unhappy when we have less crime among the ranks? A bit of explanation is required.

In the civilian world, for non-serious offenses (say a speeding ticket), you get time in front of a judge to argue your case. You can get a lawyer, and you can typically appeal any decision. Similar rules apply for more serious offenses, except instead of a state court it may become a federal court depending on the rules. You still get the same legal protection, and serious crimes will require a jury convict you instead of a judge.

Military justice is different. If a service member is accused of a crime, there is a short investigation (conducted by a Preliminary Inquiry Officer, who is normally not a legal officer). If the investigation shows misconduct, then the accused is normally sent to a disciplinary review board (DRB), which is a group of senior enlisted members who ask a lot of questions and try to reconcile conflicting portions of the accused members story. The results of the DRB get presented to the Commanding Officer (CO), who now has a decision to make:

  • He can dismiss the charges
  • He can dispose of the charges at Non-Judicial Punishment (NJP)
  • He can refer the matter to Courts-Martial

AND, in conjunction with all of these, he can take “administrative actions” (more on that in a moment).

Deciding for NJP (sometimes called Captain’s Mast or Article 15, in reference to that portion of the UCMJ) requires the member stand in front of the CO, normally in a dress uniform, and present his or her case. The CO reads through a script, asks a lot of questions, and then decides guilty or innocent. If guilty, the CO can assign punishment, depending on his or her rank and the rank of the guilty (see this table). The accused can appeal NJP, unless that person is deployed/out at sea.

The Courts-Martial process depends on which Courts-Martial you use. For enlisted service members accused of minor crimes, the Summary Courts-Martial can be used, which is quick and can assign some hard punishments (30 days in jail, 45 days hard labor). Special and General Courts-Martials look more like a civilian trial by jury. They can impose hard punishments, including multiple years in prison and even death (although that hasn’t happened since 1961).

So, given this whole structure, is Mattis right about Commanders shirking their duties? The answer is…sort of. There are plenty of barriers to properly using military justice:

1. Poor training. New Commanding Officers get a whole 3 days of legal training. You read that correctly…three days. Most of that training concerns ethics, rather than actual legal proceedings. The Navy Legal response to this lack of training is that COs need to “use their JAG officer” if they have legal questions. But as the Military Times article points out, JAGs are fairly swamped, so if every routine request has to hit a JAG, the reality is that many questions will go unanswered.

2. Lack of Summary Courts-Martial. Poor training causes a problem in that many COs have never heard of a Summary Courts-Martial. The Summary Courts-Martial is a good way to get medium level sentences proper punishment, but right now it isn’t well advertised or used.

For example, there was a rash of drug administrative separations at submarine school, where Sailors would get through Navy basic training and finish submarine training, but before their first deployment they would suddenly flag for smoking marijuana. It was fairly convenient for the Sailor, but terrible for the taxpayer: the Navy would have to separate them, they would never deploy, and then they could get hired on the outside based on training the Navy paid for, with no return on investment of taxpayer money. The local legal team persuaded the schoolhouse’s CO to start referring members to Summary Courts-Martial instead. The first Sailor they punished went to the local federal jail for 60 days. During that time, he was allowed to come back to speak to incoming classes and describe just how much fun it was to be in jail alongside murderers and rapists. Marijuana use, miraculously, plummeted.

3. Lack of ISIC support. The greatest systems in the world can be brought down by mediocre people, and military justice is no exception. If you have a service member that you know will appeal NJP, you now have the fun task of persuading your ISIC that this person deserves a Courts-Martial. The ISIC is higher in rank and normally physically separated from your command. That person isn’t close to the problem. Most ISICs don’t support Courts-Martial unless the offense is being investigated (as in, rape, murder, etc.).

Given these problems, I’m not surprised COs turn to administrative actions. If you know your boss won’t support sending someone to a Summary Courts-Martial, and you know the service member will try to appeal, what do you do? How do you get quick justice and prevent someone from running rough-shod over your command?

Simple. You hit them with paperwork.

You can “fire” them through administrative separation. In most cases, that member is out of the military in two weeks. You can also remove warfare qualifications, give them a bad evaluation, and plenty of other things to ensure they won’t select for the next rank. All of these can’t be appealed. When you want to maintain good order and discipline, sometimes the quick route is the best.

I agree with Secretary Mattis’ memo, but I think he needs to go a step further. He should be increasing the required legal training for those that execute command authority. He should be encouraging the use of Summary Courts-Martial to dispose of lower-level cases quickly and fairly. Above all else, he should release a separate memo to senior officers (O-6 and above) that encourages them to support subordinates that want to refer cases to Courts-Martial. If commanding officers had the training and felt that their ISIC would support them, they would be much more inclined to take the correct route, rather than the easy one.


This post represents the views of the author and not those of the Department of Defense, Department of the Navy, or any other government agency.

I presented this viewpoint as someone who had to exercise Article 15 authority over other service members for a variety of different circumstances. In some cases, the person was innocent and I dismissed charges. In others, I assigned punishment, which often ended that person’s naval career. I was fortunate to receive good legal advice and good support from my superiors, but I openly admit it was one of the hardest parts of my job at the time.