Author Topic: Court Martial discussion (merged)  (Read 77684 times)

0 Members and 1 Guest are viewing this topic.

Offline tomahawk6

  • Army.ca Fixture
  • *****
  • 101,420
  • Rate Post
  • Posts: 9,373
Re: Court Martial discussion (merged)
« Reply #150 on: July 23, 2016, 17:41:36 »
Very good points FJAG thanks for putting up with my viewpoint.Our system in the US military is more decentralized and at least intially can move pretty quickly.The conviction rate is 90% so I expect thats similar to the CF.Appeals move up the chain of command.Whether deployed or at home there is a JAG presence to help the commander with legal advice.Let me offer an anecdote.

A group of black soldiers threatened a couple of white soldiers while waiting for a bus.Things got heated and a white soldier fired at the black soldiers inflicting minor injuries.The MP's arrested both groups and took them to the stockade.Someone had a sense of humor because the white soldiers were placed in a cell with some of the black soldiers that they had had a tussle with.The Staff Judge Advocate's office assigned lawyers to the soldiers.All the soldiers except a white soldier went with judge only trial option.All were convicted and went to the Disciplinary Barracks at Leavenworth.The white soldier that asked for a jury trial was not convicted and was returned to duty,albeit a different unit at a different installation - mine.His file put War and Peace to shame.I interviewed him as I was the Company CO and then assigned him to a platoon/squad.He turned out to be a model troop.The system worked after a fashion. :)

Offline FJAG

  • Army.ca Veteran
  • *****
  • 166,980
  • Rate Post
  • Posts: 1,902
  • Ex Gladio Justicia
    • WordPress Page
Re: Court Martial discussion (merged)
« Reply #151 on: July 23, 2016, 21:22:07 »
Very good points FJAG thanks for putting up with my viewpoint.Our system in the US military is more decentralized and at least intially can move pretty quickly.The conviction rate is 90% so I expect thats similar to the CF.Appeals move up the chain of command.Whether deployed or at home there is a JAG presence to help the commander with legal advice.. . .

Your system is not to different from the way that ours used to be. Our system is as much "decentralized" as the US one when one speaks of the geographic distribution of legal officers. Our AJAGs and DJAs (LCols and Majs) are posted across Canada and accompany our forces on operations. They fulfill much the same role as you Staff Judge Advocates and their staff as far as providing legal advice to supported units including on military justice matters. In the past they also conducted prosecution and defence roles although now that is confined to the DMP and DDCS and their staffs. One major difference is that SJAs and their people are part of the "commanders staff" while in Canada AJAGs and DJAs are advisors who remain solely under the command of the JAG and are "not subject to the command of a officer who is not a legal officer" see QR&O 4.081

Where we differ and where we are now "centralized" is in the process of preferring charges and convening courts. In the US system "convening authority" resides in designated senior commanders of the chain of command (such as a Commander of a Combatant Command). That used to be the way that we did it but after the Somalia fiasco things were changed to reduce the perception (and in some cases the fact) of command interference in the judicial process by the CoC. In Canada the sole convening authority is now the Court Martial Administrator.

Similarly we have tightened up on who may "prefer" a charge for a court martial. Previously that rested in the CoC but is now reserved for the Director of Military Prosecutions. The role of the CoC includes investigation of charges (with or without MP or NIS assistance) and referral of charges upwards to Delegated Officers, Commanding Officers or Superior Commanders who have summary trial powers and, if the powers of punishment are inadequate, onward referral to a Referring Authority (i.e. the CDS or an Officer Commanding a Command) for referral to the DMP for review, further investigation, redraft of charges and finally preferral to the convening authority (CM Administrator).

One additional point. Our National Investigation Service (rough equivalent to your CID, NCIS, AFOSI) has the power to lay charges and also, where a delegated officer, CO, or Superior Commander decides not to proceed with the charge, to by pass that officer and refer the charge to the appropriate Referring Authority. My understanding is that US MPs etc do not have charge laying powers and no recourse if the CoC declines to proceed.

Our system works well for a force of our size and is reasonably expandable in the event of an unlikely ramping up of the CF. The US system is capable of operating at a more massive scale commensurate with its force structure but has frequently been criticised for undue/illegal command interference (particularly more recently in sexual assault cases). The retort is that discipline is a command function and accordingly commanders should not have their authorities reduced or restructured simply because the trial has gone from a summary proceeding to a court martial.

I've been a line officer (artillery and infantry) before I became a legal officer so I can see both sides of the argument. I think we've done the right thing but could go further yet. On the other hand I do not want to go the way of some of the European countries where much of the military justice system is in the hands of civilian federal prosecutors and judges.

 :cheers:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" book series at:
https://wolfriedel.wordpress.com

Offline ontheedge

  • Jr. Member
  • ***
  • -210
  • Rate Post
  • Posts: 74
What is the most time for the smallest crime
« Reply #152 on: October 10, 2018, 13:40:54 »
I’m curious about a military tribunal court martial type question. I know the military tribunal can order jail time for things that under civilian law seem minor. And I’ve looked at some cases, mod. But I’m wondering peoples experience what is the most minor offense that resulted in jail time?

[added:  Brass knuckles gets 10 days in the Barracks?  What does that mean?  Do soldiers confined to Barracks get to call their parents, or have access to internet/email?]
« Last Edit: October 10, 2018, 14:54:47 by ontheedge »

Offline tomahawk6

  • Army.ca Fixture
  • *****
  • 101,420
  • Rate Post
  • Posts: 9,373
Re: Court Martial discussion (merged)
« Reply #153 on: October 10, 2018, 18:41:43 »
Our first level of legal action is Non Judicial punishment administered by the company and or other commanders higher up the food chain its usually called Art 15.The types of punishment levied can include loss of pay,or confinement either in barracks or the post guardhouse. A member has the right to refuse NJP which would send the offender to a court martial where the punishment would be more severe.


The most trivial case I can remember, was caused by a black soldier that was close to his discharge date that refused to conform to haircut standards.He refused NJP and it went to Court Martial.He ended up getting a lower level of discharge where he would lose certain GI bill benefits.Being a hard head he wouldn't listen, he thought he would never need the benefits.He had a bad attitude calling his black platoon sgt an "uncle Tom". anyway he was discharged on time but he would never be able to re -enlist and lost the best parts of the GI Bill like education and health benfits all for an improper haircut.

Offline dangerboy

  • Army.ca Subscriber
  • Army.ca Veteran
  • *
  • 324,649
  • Rate Post
  • Posts: 2,825
Re: Court Martial discussion (merged)
« Reply #154 on: October 10, 2018, 19:26:28 »
Our first level of legal action is Non Judicial punishment administered by the company and or other commanders higher up the food chain its usually called Art 15.The types of punishment levied can include loss of pay,or confinement either in barracks or the post guardhouse. A member has the right to refuse NJP which would send the offender to a court martial where the punishment would be more severe.

The most trivial case I can remember, was caused by a black soldier that was close to his discharge date that refused to conform to haircut standards.He refused NJP and it went to Court Martial.He ended up getting a lower level of discharge where he would lose certain GI bill benefits.Being a hard head he wouldn't listen, he thought he would never need the benefits.He had a bad attitude calling his black platoon sgt an "uncle Tom". anyway he was discharged on time but he would never be able to re -enlist and lost the best parts of the GI Bill like education and health benfits all for an improper haircut.

Just pointing out that this is an example of American military justice, their military justice system is different from the Canadian military justice.
All right, they're on our left, they're on our right, they're in front of us, they're behind us... they can't get away this time.
- Lt Gen Lewis B. Puller, USMC

Offline tomahawk6

  • Army.ca Fixture
  • *****
  • 101,420
  • Rate Post
  • Posts: 9,373
Re: Court Martial discussion (merged)
« Reply #155 on: October 10, 2018, 19:39:10 »
So what if any is the CF equivalent or do you just send everyone to a court martial ?

Offline kratz

    Fall: Sweater Weather.

  • Float, Move, Fight
  • Directing Staff
  • Army.ca Veteran
  • *
  • 254,053
  • Rate Post
  • Posts: 2,186
Re: Court Martial discussion (merged)
« Reply #156 on: October 10, 2018, 19:43:07 »
For punishments we have:
- Summary Trials and
- Courts Martial

The CoC also has the option to apply Administrative measures, in addition to the above.
Quote from: Pipe *General Call*
"Tanning Stations on the flight deck"


Remember, this site is unofficial and privately owned. The site benefits from the presence of current members willing to answer questions.

Offline FJAG

  • Army.ca Veteran
  • *****
  • 166,980
  • Rate Post
  • Posts: 1,902
  • Ex Gladio Justicia
    • WordPress Page
Re: Court Martial discussion (merged)
« Reply #157 on: October 10, 2018, 21:37:24 »
So what if any is the CF equivalent or do you just send everyone to a court martial ?

This is a comprehensive overview of how our military justice system functions:

http://www.forces.gc.ca/en/about-reports-pubs-military-law/military-justice-overview.page

I’m curious about a military tribunal court martial type question. I know the military tribunal can order jail time for things that under civilian law seem minor. And I’ve looked at some cases, mod. But I’m wondering peoples experience what is the most minor offense that resulted in jail time?

[added:  Brass knuckles gets 10 days in the Barracks?  What does that mean?  Do soldiers confined to Barracks get to call their parents, or have access to internet/email?]

Generally the military justice system does not provide jail time for things that are a minor matter.

In serious matters which are the rough equivalent of civilian offences, courts martial tend to give sentences of imprisonment in roughly equal terms to what a civilian court would. There are, however, offences that are unique to the military environment where detention is imposed to aid in enforcing the strict requirements of military discipline which is, of course, not a feature of civilian life.

"Confinement to ship or barracks" is not imprisonment or detention. It is a "minor punishment" under QR&O 104.13 that is in effect what one might consider "house arrest" where the individual carries on normal work at his ordinary place of duty, eats his meals at the mess hall as per usual and then spends his time in quarters as may be set out by the unit's rules. See s 7 and 9 to QR&O 108 http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders-vol-02/ch-108.page

 :cheers:
Illegitimi non carborundum
Semper debeatis percutis ictu primo
Access my "Allies" book series at:
https://wolfriedel.wordpress.com

Offline Lumber

  • Donor
  • Army.ca Veteran
  • *
  • 55,654
  • Rate Post
  • Posts: 1,978
Re: Court Martial discussion (merged)
« Reply #158 on: October 11, 2018, 08:33:28 »
"Confinement to ship or barracks" is not imprisonment or detention. It is a "minor punishment" under QR&O 104.13 that is in effect what one might consider "house arrest" where the individual carries on normal work at his ordinary place of duty, eats his meals at the mess hall as per usual and then spends his time in quarters as may be set out by the unit's rules. See s 7 and 9 to QR&O 108 http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders-vol-02/ch-108.page
 :cheers:

One thing I found odd about summary trials and a punishment confinement to barracks (but in reality is just practicing prudence):
- You're innocent until proven guilty, and the presiding officer is supposed to be someone who is at arm's length from the case, and while they probably know the gist of what happened, they shouldn't know the details
- nonetheless, everytime I've been to or heard of a summary trial where the result was confinement to barracks, the accused always showed up to the trial with a bag packed, and his personal affairs in order for a 1 week stay away from home
- it's like someone told them they were going to be found guilty, and that the punishment would be somewhere in the realm of 3-7 days CTB, but how could that be? :P
"Aboard his ship, there is nothing outside a captain's control." - Captain Sir Edward Pellew

“Extremes to the right and to the left of any political dispute are always wrong.”
― Dwight D. Eisenhower

Death before dishonour! Nothing before coffee!

Offline 211RadOp

  • Sr. Member
  • *****
  • 22,578
  • Rate Post
  • Posts: 815
  • Now is the tyme....damn missed again....Now is the
Re: Court Martial discussion (merged)
« Reply #159 on: October 11, 2018, 09:04:52 »
As an SSM, when I conducted a Summary Trial, I looked at the history of the accused and what the unit usually gave for the offence.  If there was a chance of the member being confined to barracks, I told them to be prepared and have everything ready in case he was found guilty and sentenced to confinement to barracks.  Sometimes he just got a fine and went on his merry way, but he was prepared to spend a week in barracks.
“Behind every great man is a woman rolling her eyes." Jim Carrey
"Do unto others, then run." Benny Hill
"There's no better feeling in the world than a warm pizza box on your lap." Kevin James

Offline mariomike

  • Directing Staff
  • Army.ca Fixture
  • *
  • 488,700
  • Rate Post
  • Posts: 8,879
    • The job.
Re: Court Martial discussion (merged)
« Reply #160 on: October 11, 2018, 09:14:33 »
For punishments we have:
- Summary Trials and
- Courts Martial

Regarding the difference between the two,

Summary Trial vs Courts Martial 
https://army.ca/forums/index.php?topic=113353.0

« Last Edit: October 11, 2018, 09:18:35 by mariomike »

Offline ModlrMike

    : Riding time again... woohooo!

  • Army.ca Subscriber
  • Army.ca Veteran
  • *
  • 211,329
  • Rate Post
  • Posts: 3,735
    • Canadian Association of Physician Assistants
Re: Court Martial discussion (merged)
« Reply #161 on: October 11, 2018, 12:50:24 »
As an SSM, when I conducted a Summary Trial, I looked at the history of the accused and what the unit usually gave for the offence.  If there was a chance of the member being confined to barracks, I told them to be prepared and have everything ready in case he was found guilty and sentenced to confinement to barracks.  Sometimes he just got a fine and went on his merry way, but he was prepared to spend a week in barracks.

In addition, I would say that a good Assisting Officer will not only help the member achieve the best possible outcome, but prepare them for the worst. Telling them to pack a bag falls into that category.
WARNING: The consumption of alcohol may create the illusion that you are tougher,smarter, faster and better looking than most people.
Every normal man must be tempted, at times, to spit upon his hands, hoist the black flag, and begin slitting throats. (H.L. Mencken 1919)
Zero tolerance is the politics of the lazy. All it requires is that you do nothing and ban everything.

Offline ontheedge

  • Jr. Member
  • ***
  • -210
  • Rate Post
  • Posts: 74
Re: Court Martial discussion (merged)
« Reply #162 on: October 11, 2018, 16:24:38 »
Wow thanks, this has been helpful!

1.  Being sequestered in Barracks - is that for Reserve as well as for Regular Force?
2.  Where are the barracks located in Toronto?  e.g. is there one at 660 Fleet in Toronto?  Dennison??

That's crazy that a CO can order up to 21 days... is there phone or internet or email access while in barracks?

Offline Navy_Pete

  • Army.ca Subscriber
  • Sr. Member
  • *
  • 16,190
  • Rate Post
  • Posts: 621
Re: Court Martial discussion (merged)
« Reply #163 on: October 11, 2018, 17:31:19 »
Wow thanks, this has been helpful!

1.  Being sequestered in Barracks - is that for Reserve as well as for Regular Force?
2.  Where are the barracks located in Toronto?  e.g. is there one at 660 Fleet in Toronto?  Dennison??

That's crazy that a CO can order up to 21 days... is there phone or internet or email access while in barracks?

Not sure about the army side, but on ships this just means you have your shore leave suspended. It doesn't pause, so if over that two-three weeks most of it is at sea, really makes no difference.

There is a routine for personnel under punishment, so they have to report to the folks on duty at specific times.  We had a few guys catch that, and normally the chiefs find something useful for them to do so they stay busy.  Giving spaces a good cleaning ('Sunday routine'), touching up paint, etc. are fall backs, but if we were fueling or something they were part of that evolution (which means someone else can get shore leave). Same idea for the base, and there is usually something going on over the weekends where a PUP could get voluntold to help with so they are being productive.

They still had some free time with the same normal access to things they had otherwise (except maybe use of the mess bar?) but it's not jail or anything. 

CO's of operational units can make decisions that put people's life and billions of dollars of equipment at risk, so a CTB of 21 days isn't really that big a deal in comparison.

Offline Blackadder1916

  • Army.ca Veteran
  • *****
  • 165,145
  • Rate Post
  • Posts: 2,834
Re: Court Martial discussion (merged)
« Reply #164 on: October 11, 2018, 18:28:16 »
Wow thanks, this has been helpful!

1.  Being sequestered in Barracks - is that for Reserve as well as for Regular Force?
2.  Where are the barracks located in Toronto?  e.g. is there one at 660 Fleet in Toronto?  Dennison??

That's crazy that a CO can order up to 21 days... is there phone or internet or email access while in barracks?

While technically it is a punishment that can be imposed on a Reservist despite some logistical limitations; however, to do so to the typical Reservist (a part-timer) would be counterproductive.  If you sentenced a part-time soldier to confinement to quarters or extra duty and drill, then you would have to pay him for those days that he did the punishment.  The most likely punishment would be a fine.
Whisky for the gentlemen that like it. And for the gentlemen that don't like it - Whisky.

Offline dapaterson

    Mostly Harmless.

  • Army.ca Subscriber
  • Army.ca Myth
  • *
  • 429,875
  • Rate Post
  • Posts: 16,098
Re: Court Martial discussion (merged)
« Reply #165 on: October 11, 2018, 18:38:39 »
Some Reserve COs, cognizant of their soldier's financial situation, have been known to impose extra duties along with a fine, as a partial mitigation of the potential impact of a fine on someone in financial distress.
This posting made in accordance with the Charter of Rights and Freedoms, section 2(b):
Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
http://laws.justice.gc.ca/en/charter/1.html

Offline E.R. Campbell

  • Retired, years ago
  • Army.ca Subscriber
  • Army.ca Myth
  • *
  • 477,825
  • Rate Post
  • Posts: 18,317
Re: Court Martial discussion (merged)
« Reply #166 on: October 11, 2018, 18:55:35 »
Some Reserve COs, cognizant of their soldier's financial situation, have been known to impose extra duties along with a fine, as a partial mitigation of the potential impact of a fine on someone in financial distress.


As a CO, many years decades ago I was always conscious of the impact of a punishment on a family. I knew that when I fined a married soldier I was, in fact taking money out of the household budget that fed and clothed a wife and kids, too; equally I knew that many soldiers had (needed) part time jobs and CB or extra work and drill could also cause some unintended hardships.

It did not deter me from punishing ... but it made me think about the consequences. It also made troop commanders delve, properly, into the lives and circumstances of the soldiers they commanded because I expected them, as assisting officers, to assist me, too, by telling me about their soldiers situations.

There is a balance to be struck between our duty and our powers.
 
It is ill that men should kill one another in seditions, tumults and wars; but it is worse to bring nations to such misery, weakness and baseness
as to have neither strength nor courage to contend for anything; to have nothing left worth defending and to give the name of peace to desolation.
Algernon Sidney in Discourses Concerning Government, (1698)
----------
Like what you see/read here on Army.ca?  Subscribe, and help keep it "on the air!"

Offline ontheedge

  • Jr. Member
  • ***
  • -210
  • Rate Post
  • Posts: 74
Re: Court Martial discussion (merged)
« Reply #167 on: October 11, 2018, 23:19:36 »

It did not deter me from punishing ... but it made me think about the consequences. It also made troop commanders delve, properly, into the lives and circumstances of the soldiers they commanded because I expected them, as assisting officers, to assist me, too, by telling me about their soldiers situations.

There is a balance to be struck between our duty and our powers.

Wow nicely said! 

You've actually now turned me to another question:  can a soldier refuse an order that violates what he or she believes is an ethos principle.  I guess what I’m trying to understand is that if a soldier feels an order is demeaning or immoral, can he refuse to comply, state his reason, and move on. Or should the soldier expect to have to explain himself before several superiors and potentially a court martial.

[edited to remove gratuitous examples]
« Last Edit: October 12, 2018, 00:40:19 by ontheedge »

Offline ModlrMike

    : Riding time again... woohooo!

  • Army.ca Subscriber
  • Army.ca Veteran
  • *
  • 211,329
  • Rate Post
  • Posts: 3,735
    • Canadian Association of Physician Assistants
Re: Court Martial discussion (merged)
« Reply #168 on: October 12, 2018, 00:37:03 »
The answers you seek can be found here: QR&O Chapter 102

The short answers are:

Scenario 1 - you're not subject to the CSD, and there is no obligation to follow these orders;
Scenario 2 - not likely to happen, so your question is moot. CO's don't get there by being foolish or capricious.

Even if the CO were to push the points in either or both scenario, then they wouldn't be COs for long.

FWIW, please stop asking crazy hypothetical questions.
WARNING: The consumption of alcohol may create the illusion that you are tougher,smarter, faster and better looking than most people.
Every normal man must be tempted, at times, to spit upon his hands, hoist the black flag, and begin slitting throats. (H.L. Mencken 1919)
Zero tolerance is the politics of the lazy. All it requires is that you do nothing and ban everything.

Offline ontheedge

  • Jr. Member
  • ***
  • -210
  • Rate Post
  • Posts: 74
Re: Court Martial discussion (merged)
« Reply #169 on: October 12, 2018, 00:44:26 »
Thank you for the answers.  I do appreciate it. My hypothetical questions were meant to draw out principles which you have elucidated in your answer.