Question about courts-martial

I received this comment from a friend of mine about Cpl Houssoun and what could happen in his case and others like it.

Hey Marcus, maybe you can answer this.

I was looking at the UCMJ, and under subchapter 10, Section 885 Article 85, paragraph c, it says that desertion is “punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct.”

Does this mean that the Courts-Martial judge has no other guidelines as to sentencing? I mean, if he is found guilty, the CM judge could give him one day in the brig if he wanted to, the way this is written.

Maybe I’m missing something, but is this kind of latitude a common thing? Or am I just missing something?

Before I start answering the question and talking about the legal side of the military, I must explain that I am by no means an expert in this field. I am not a legal clerk, but I do have a little experience from working in the admin center where things like this are dealt with in cooperation with the legal shops. However, I am fairly confident that I am providing accurate information.

We’ll look at the desertion charge first. The charge could carry the death penalty, but it must have happened during a time of war. Every politician in Washington and the military is using the term war for the operations currently underway in the Middle East. While this is basically a war, it is not technically. For this to be a war and the desertion charge carry the death penalty, Congress must have declared war. There has not been an official declaration of war at this point in time. Therefor, Cpl Hassoun will not face the death penalty.

Now to answer your question. The presiding authority does have quite a bit of lead way when a sentence is issued, but they do have guidelines to follow based on the type of court-martial. Here is the quick and dirty on the types of court-martial and the punishments.

Summary Court-Martial

  • The maximum punishment a summary court-martial may award is: confinement for 30 days, forfeiture of two-thirds pay for one month, and reduction to the lowest pay grade (E-1).
  • In the case where the accused is above the fourth enlisted pay grade, a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next lowest pay grade.

Special Court-Martial

  • The maximum punishment a special court-martial may adjudge is: confinement for 12 months, forfeiture of two-thirds pay for 12 months, reduction to the lowest pay grade (E-1), and a bad conduct discharge.

General Court-Martial

  • A general court-martial may adjudge any sentence authorized by the Manual for Courts-Martial for the offenses that the accused is found to have committed.

The Manual for Courts-Martial (PDF form) may be found on the USMC.mil website.

As you can see with a General Courts-Martial, there is a very wide variety of penalties for crimes committed. Brig time, reduction, forfeiture of pay and allowances, and discharge are some of the standard punishments that can also be awarded at other types of courts-martial. In the case of a General Courts-Martial, a guilty party can face the death penalty for desertion during a time of war or for treason. It is also worthy to note that a courts-martial conviction can make you a felon in the civilian world as well.

The specific question asked above of one day brig time is possible, but very unlikely, especially for the gravity of a desertion charge. You can get a month in the brig for repeated or extended amounts of unauthorized absence or for popping on a drug test.

The penalty I can see being imposed upon Cpl Hassoun is reduction, multiple years of brig time, reduction to E-1, and a bad conduct discharge.

If there are any further questions from any reader, please feel free to comment or send me an email.

One Response to “Question about courts-martial”

  1. Phil Cave Says:

    I am an expert.

    The writing has got it pretty much correct.

    There are NO sentencing guidelines in the military. The judge or members (jury) can give a sentence to “no punishment” up to the maximum permitted according to the offense. Desertion has a potential max of 5 years. I agree with the writer. The military takes the position that for UCMJ purposes that has been NO declaration of war, therefore the DP is off the table.

    Yes, legally he could be convicted and sentenced to no Brig time, but loss of pay, rank, and a punitive discharge. I agree however, that depending on the actual circumstances some significant Brig time is a likely result. In “peacetime” people are getting several months to several years for desertion.

    Don’t prejudge the man, he may well have a valid defense.

    They have to prove he absented himself without authority and that he had the intent to remain away permanently and he did so with the intent to shirt or avoid important duties, etc.

    But if he doesn’t there is some aggravating circumstances that will get him quite a bit of punishment.

    Cheers.

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