Fiery words have been exchanged between Sen. Mark Kelly (D-Ariz.) and the administration about his “Seditious Six” video, telling the troops they can “refuse” illegal orders.  Kelly could be recalled and subjected to military discipline under the Uniform Code of Military Justice.

The American people are unfamiliar with intricacies of military justice.  What follows here are information and insights for the public to assist with their own understanding.

Four-tiered Military Justice System

A misconduct charge can be sent to any of four military justice forums, pursuant to the Manual for Courts-Martial (MCM).  Each forum has procedural and evidentiary rules, a standard of proof, and sentencing limitations.

Nonjudicial Punishment (NJP or “Captain’s Mast” in Navy parlance) is the lowest level in the military justice system (MCM, pp. 468-473).  It is not a criminal proceeding, but more analogous to an employment disciplinary hearing.  Appeals are administrative only.

The rarely used Summary Court-Martial, also not a formal criminal proceeding, is the odd duck in the system, with the hearing officer acting as judge, prosecutor, and defense counsel.

At a Special Court-Martial (SPCM) and General Court-Martial (GCM), the accused has full criminal defendant rights, rules of procedure and evidence, option for jury “members” before a military judge, and judicial appeals.  At an SPCM, the maximum confinement sentence allowed is 12 months.

A General Court-Martial (GCM) is the big daddy of military justice.  The maximum punishment allowed by law may be imposed at a GCM, including life or a death sentence (e.g., charge of Article 94, Mutiny or Sedition).

The decision of whether and what charge to send to a forum is within the discretion and inherent rank authority of the commanding officer of the accused.

Possible UCMJ Charges

Public discussion has swirled around possible charges for Kelly: treason, sedition/seditious conspiracy, advocating or influencing disloyalty, and encouraging military members to refuse to carry out their duties (e.g., 18 USC §2381, §2383, §2384, §2385, and §2387).  Because the video did not identify what orders might be construed as illegal, the evidentiary elements of these crimes might be difficult to meet.  Conduct Unbecoming an Officer (Article 133) has been absent from the national conversation, perhaps because that would allow for a character integrity defense.

What has also been missing is talk of the longstanding, expedient catch-all “general article” 134 offense (MCM, pp. 450-453).  In a general article 134 charge, the command alleges the facts of conduct it regards as criminal as the first element.  The final element, similar to the 50+ other specific Article 134 crimes, is that the conduct is prejudicial to good order and discipline and/or brings discredit to the Armed Forces.

Strategies and Practicalities

As a senior officer, Kelly would have the right refuse an NJP (for him, Admiral’s Mast) and demand a court-martial instead.  There, the government could adjudicate a general article 134 offense under the higher “beyond a reasonable doubt” standard.  The proceeding would be open to the press and could drag on, with motions, evidence, testimony, and witnesses embellishing or exploiting the issues involved.

For a retired captain accused, submitting to an NJP proceeding has advantages.  As a personnel matter, Kelly would have a right to an open hearing, punishment is limited (e.g., reprimand, minor pay forfeiture).  There can be no criminal conviction.  It is prompt.  For the government, an Admiral’s Mast has advantages also: If Kelly refused an NJP, he could be blamed for his ultimate fate at court-martial; the lower standard of proof would lessen the government’s needed evidence; a guilty finding would offer a deterrent effect against possible future repeated misconduct; and appeals would be limited to administrative consideration, not a judicial one.

At an SPCM, with the higher standard of proof, the factual elements of the general article 134 offense arguably would be relatively easy to prove.  A military judge would likely curtail defense arguments slipping into politics.  Members could deliver a guilty or not guilty verdict.  However, any courtroom lawyer, military or civilian, will tell you that you never really know what a jury will do.

Diplomacy — a minimum of deference to a retired Navy captain, astronaut, and sitting U.S. senator — may well point toward a wise initial selection of an NJP/Admiral’s Mast forum — if Kelly is recalled.  If pragmatism prevails, Admiral’s Mast could leave the political discussions in Congress and put the matter to rest for Kelly, the government, and the American public.

Might there be a win-win in the offing?

A.C. Lohr is a retired officer of the Navy Judge Advocate General’s Corps, residing in the Midwest.

Image via Wikimedia Commons.