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Military Justice Research Guide  

Last Updated: Apr 3, 2017 URL: http://libguides.law.rutgers.edu/content.php?pid=702847 Print Guide RSS Updates
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Library & Online Resources

Introduction

The following research guide is a general introduction to the sources of law for military justice and where the laws can be found.  Wherever possible, I have tried to include the location of sources that are freely available online.

 

Statutes

Military criminal justice is governed by the Uniform Code of Military justice (UCMJ).  The UCMJ was enacted in 1950 by P.L. 81-506, 64 Stat. 107, and replaced the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard.  The UCMJ includes provisions for both substantive criminal law and criminal procedure as it applies to members of the armed forces.  Other provisions of the UCMJ set up the federal courts that review court-martial convictions and delegate rule making authority over military justice to the President.  The UCMJ is located at 10 U.S.C.  §§ 801-946.  Like other sections of the US Code, it is available in both the official (USC) and unofficial (annotated) versions, including the USCA published by West and USCS published by Lexis.  Annotated codes include case notes and citations to legislative history. 

Legislative history

The UCMJ has been through major revisions in 1968 (P.L. No. 90-632, 82 Stat. 1335) and 1983 (P.L. 98-209, 97 Stat. 1393), as well as numerous smaller revisions since it was originally enacted in 1950.  It is often helpful to start by locating the particular section you are interested in within the USC (or one of the annotated versions thereof).  At the end of the USC section, there will be a brief history including the public law number of the original act that added the section as well as any subsequent amendments.  For more information on doing a federal legislative history, see the research guide located at http://libguides.law.rutgers.edu/content.php?pid=702839&hs=a

The Library of Congress maintains a page which includes compiled legislative histories of the Articles of War, the UCMJ, and the 1968 and 1983 revisions of the UCMJ located at http://www.loc.gov/rr/frd/Military_Law/UCMJ_LHP.html.  

The Index and Legislative History, Uniform Code of Military Justice, U.S. Govt. Print Off. 1950, is a compiled legislative history of the original 1950 code.  The index provides references to the text of the hearings and committee reports by individual article. The Index and Legislative History of the UCMJ is available at http://www.loc.gov/rr/frd/Military_Law/index_legHistory.html and through HeinOnline http://heinonline.org/HOL/Page?handle=hein.beal/ilhuncom0001&id=1&size=2&collection=beal&index=alpha/I_beal#5

 

Case law

The first level of appellate review of courts-martial takes place at the Court of Criminal Appeals (CCA, formerly called Boards of Military Review) within the branch of the armed service of which the accused is a member.  The Court of Appeals for the Armed Forces (CAAF, formerly the Court of Military Appeals) is a civilian court which has jurisdiction over convictions that have been affirmed by the Courts of Criminal Appeals.  Like other federal appellate courts, the CAAF is appealed by writ of certiorari to the United States Supreme Court.

From 1975 to date, published decisions of the CAAF and CCAs have been published in the Military Justice (M.J.) reporter available at call number KF7605.A2 W4.  From 1951 to 1975, decisions of the Court of Military Appeals and Boards of Military review were published in Court Martial Reports (C.M.R.) located at call # KF7605.A2 C68 and through LLMC digital  http://www.libraries.rutgers.edu/indexes/llmc (on site and RU id access only). Additionally, from 1951 to 1975 The Lawyer’s Co-operative Publishing Company printed 23 volumes simply called “United States Court of Military Appeals” (U.S.C.M.A.).  These volumes included only the CMA decisions. 

Cases from the Military Justice Reporter and Court Martial Reports and selected unpublished opinions are available through both Lexis (COURTS database) and Westlaw (MJ database) covering the period of 1951 forward.  To get to military justice decisions in WestlawNext, select Federal Materials under browse, then click the link for Federal Cases.  Under Federal Cases by Court, click the link for Military Courts and type your search in the search box. 

Recent opinions of the CCAs and CAAF are also available through the courts’ websites:

Court of Appeals for the Armed Forces (1997-present): http://www.armfor.uscourts.gov/newcaaf/opinions.htm (opinions); http://www.armfor.uscourts.gov/newcaaf/opinions_digest.htm  (digest of cases 1998 to present)

Navy Marine Corps Court of Criminal Appeals (2004-present): http://www.jag.navy.mil/courts/opinion_archive.htm (opinions); http://www.jag.navy.mil/courts/digest.htm (digest of cases 2000 to present)

Coast Guard Court of Criminal Appeals (1997-present): http://www.uscg.mil/legal/cca/court_of_criminal_appeals_opinions/Court_of_Criminal_Appeals_Opinions.asp

Army Court of Criminal Appeals (1998-present): https://www.jagcnet.army.mil/ACCA#

Air Force Court of Criminal Appeals (2002-present): http://afcca.law.af.mil/content/opinions.html

Court of Appeals for the Armed Forces (1997-present): http://www.armfor.uscourts.gov/newcaaf/opinions.htm (opinions); http://www.armfor.uscourts.gov/newcaaf/opinions_digest.htm  (digest of cases 1998 to present)

 

 

Court Rules

Court-martial procedure is governed by the Rules for Courts-Martial (RCM) And the Military Rules of Evidence (MRE).  The RCM and MRE are promulgated by executive orders which are compiled and published in the Manual for Courts-Martial (MCM).  The current version of the MCM is available at http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf.  The MCM also contains a nonbinding discussion of each Rule for Courts-Martial, which includes commentary and cross-references to other rules and sections of the manual. 

Updates to the MCM are drafted annually by the Joint Service Committee on Military Justice (JSC) located within the Department of Defense, then submitted to the President for approval.  32 CFR Part 152.  To get the most current version of the rules it may be necessary to obtain executive orders issued since the MCM was last published.  Executive orders updating the MCM are published in the Federal Register located at call #KF70.A2, and available online (1994-present) through the Government Printing Office’s website at http://www.gpo.gov/fdsys/search/home.action.  To search the Federal Register on FDSys, select advanced search on the main page, then add Federal Register from the list of collections to be searched.  A search of the title field such as (amendments and “manual for courts-martial”) should retrieve relevant documents.   The search can be further narrowed by agency (Executive Office of the President), the year, or by name of president. 

In addition to the rules applicable to the court-martial, each CCA and the CAAF has its own rules of appellate procedure.  32 CFR Part 150 (available at http://www.gpo.gov/fdsys/pkg/CFR-2013-title32-vol1/pdf/CFR-2013-title32-vol1-part150.pdf ) contains joint rules that apply to all Courts of Criminal Appeals.  Each CCA also has its own local rules which are available through the court’s website: 

Air Force: http://afcca.law.af.mil/content/resources_1_4.html

Army: https://www.jagcnet.army.mil/sites/acca.nsf/0/2D75C9BE986E0DD885257B4300516990/$FILE/ACCA%20Rules%2020090731.pdf

Navy-Marine Corps: http://www.jag.navy.mil/nmcca.htm

Coast Guard: http://www.uscg.mil/Legal/cca/court_rules.pdf

CAAF court rules are available at  http://www.armfor.uscourts.gov/newcaaf/library/Rules/Rules2013Sep.pdf

Regulatory History of the Manual for Courts-Martial

Recent versions of the MCM include a preface detailing amendments since the last publication, which can be a good place to start looking for evidence of intent behind a particular revision. 

Superseded versions of the MCM are available at http://www.loc.gov/rr/frd/Military_Law/CM-manuals.html.  This compilation also includes Manuals which pre-date the UCMJ. 

For executive orders updating previous versions of the MCM, the source is again the Federal Register.  For years 1994-present, search FDSys as indicated in the previous section.  The complete Federal Register (1936 to present) is also available through Lexis and Westlaw.  To search the Federal Register in Westlaw Next, select Federal Materials under browse, then click the link for Federal Register.  In Lexis Advance go to Browse sources, then find the link for Federal Register in the alphabetical listing of sources.  Executive orders amending the MCM from 1984 to 2011 can also be found on JSC’s website located at http://www.dod.gov/dodgc/historical_eo.html.

It is also possible to trace the history of proposed amendments through the Federal Register.  The Joint Service Committee is required to give the public notice of amendments through publication in the Federal Register, and to allow the public an opportunity to comment on the proposed changes. 32 C.F.R. Pt. 152 App. A.  A summary of public comments and the JSC’s responses are also published in the Federal Register.  These documents can be found in the FDSys Federal Register database using a search such as (amendments and “manual for courts-martial”) in the title field and further narrowing the search using “defense” in the department field.

 

 

Administrative Law

The procedural rules contained in the MCM may also be supplemented by regulations applicable to the particular branch of the armed services of which the accused is a member.  In addition, Article 92 of the UCMJ (10 U.S.C. § 892)  makes it a criminal offense for a member of the military to violate a “lawful general order or regulation” applicable to members of the armed forces, including orders and regulations of the President, the Secretary of Defense, the Department of Homeland Security, the secretary of a military department, or a general officer.  MCM, part IV-24. 

Many regulations can be found in the Code of Federal Regulations (CFR), the codification of general regulations originally published in the Federal Register that are currently in force.   Title 32 of the CFR covers National Defense.  It includes regulations of the Department of the Secretary of Defense (Parts 1 to 399); Department of the Army (400-668); Navy (700 to 777); and Air Force (800-989).  The CFR is available in print at call # KF70.A3 or online at http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR. The print version of the CFR includes a one volume index.  West also publishes a more detailed 4 volume subject index to the CFR located at call # KF70.A34 W4.

Not all military regulations are published in the CFR. You may also want to check the e-publishing site of the Department of Defense or for the particular branch of the armed services for regulations not included in the CFR. See http://www.marines.mil/News/Publications.aspx and http://whs.mil.campusguides.com/content.php?pid=321917&sid=2635404  listing online military publication sites.  The library also provides on-site access to the Naval Postgraduate School Homeland Security Digital Library (https://www.hsdl.org/), which contains selected administrative publications of the Department of Defense, Department of Homeland Security, and departments of the military. 

Some important administrative publications on military justice that are not included in the CFR include:

JAG Instruction 5800.7F, Manual of the Judge Advocate General (Navy) http://www.marines.mil/News/Publications/ELECTRONIC-LIBRARY/Electronic-Library-Display/Article/898615/jaginst-58007f/

Air Force Instruction 51-201, Administration of Military Justice: http://static.e-publishing.af.mil/production/1/af_ja/publication/afi51-201/afi51-201.pdf

Army AR 27-10, Military Justice: http://www.apd.army.mil/pdffiles/r27_10.pdf

Coast Guard COMDTINST M5810.1E Military Justice Manual: http://www.uscg.mil/directives/cim/5000-5999/CIM_5810_1e.pdf  

Regulations may also be issued by the commander of a particular base if the commander is a general officer.  Tracking down a copy of these regulations can be problematic, as they may only be made available for distribution within the command.  Some base orders may be available online through the particular base's webpage.  The Air Force e-publishing site located at http://www.e-publishing.af.mil/ also includes some base orders.  To look for Air Force base instructions, select the Bases & Units tab on the main page, then select the name of the base from the drop down menu. 

 

Trial and Appellate Practice Resources

Part IV of the Manual for Courts-Martial http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf  reprints the text of the punitive articles of the UCMJ along with an explanation of the elements of each offense and model specifications.  The appendices to the MCM also include a number of military justice forms.  Additional forms for particular service branches can be found in the administrative publications mentioned in the previous section.

Another official source of practice materials is the Military Judges’ Benchbook, DA PAM 27-9 https://www.jagcnet.army.mil/sites/trialjudiciary.nsf/homeContent.xsp?open&documentId=49C01E1BE32A5FF885257B48005712E2 which includes pattern jury instructions and other scripts used by military judges for conducting courts-martial. (An older copy of the Benchbook in .pdf format is available here: http://www.apd.army.mil/pdffiles/p27_9.pdf)  Although not legally binding, the Military Judges’ Benchbook is considered persuasive authority in such matters as the propriety of jury instructions and “providence” of guilty pleas.

Treatises on military justice available at the Rutgers-Newark Law Library include:

Francis A. Gilligan & Frederic I. Lederer, Court-Martial Procedure KF7625.G55 (current edition available through Lexis.com MANUCM database and Lexis Advance)

David A. Schlueter, Military Criminal Justice : Practice and Procedure KF7620 .S34 2004 (current through 2013 through Lexis.com MCJPPP database and Lexis Advance)

Charles A. Shanor, National Security and Military Law in a Nutshell (3rd ed.), KF7210.S52 2003

In addition, the following treatises are available through Lexis (requires login and password): David A. Schleuter, Military Criminal Procedure Forms (Lexis.com MILPFO); Stephen A. Saltzburg, Military Rules of Evidence Manual (Lexis.com MROEMP database and Lexis Advance); David A. Schlueter, Military Crimes and Defenses (Lexis.com MILCAD database and Lexis Advance); and David A. Schlueter, Military Evidentiary Foundations (Lexis.com MEVIFD and Lexis Advance)

Practitioners and others who want to keep current on military justice issues may also find the following sources helpful:

Oral arguments:

http://afcca.law.af.mil/content/audio.php%3Ftabid=4.html

http://www.jag.navy.mil/courts/oral_arguments.htm

http://www.caaflog.com/?s=caaf+oral+argument+audio

Blogs:

http://www.caaflog.com/

http://court-martial-ucmj.com/

Journals:

Air Force Law Review and The Reporter (Air Force Jag Journal) http://www.afjag.af.mil/library/

Army Lawyer https://www.jagcnet.army.mil/DOCLIBS/ARMYLAWYER.NSF/TALDisplay

Military Law Review http://www.loc.gov/rr/frd/Military_Law/Military-Law-Review-home.html

Naval Law Review http://www.jag.navy.mil/njs_publications.htm

      
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