I think what we may be forgetting is that Congress, realizing that the military has different needs than the civilian community, generated a different set of laws to govern the military. Those laws started as the Articles of War, Rules for the Governance of the Naval Service, etc.,etc. and finally ended in what we have today; the Uniform Code of Military Justice.
Once you have taken the oath and donned the uniform, a large part of the rights guaranteed to the civilian populace is no longer applicable. You do not have free speech, for one. Doubt that? Try openly criticizing any level of the chain of command. The Disciplinary Barracks at Leavenworth will be waiting for you.
I will also tell you that trial by a jury of your peers is also out the window. I have never seen a rank below that of E8 on a court martial board. That said, I will also tell you that, most of the time, the rights of an accused are better protected under the procedures of the Manual for Courts-Martial than they are under civilian jurisprudence.
To echo Rotorhead: Sooooo nice to be retired now!!
Yes it is
SFC,
Concerning the issue of having "peers", the UCMJ does offer a certain amount of compliance. Basically, an enlisted member can request that other enlisted members be part of the make up of the convening board. It's in Art 25 which I quoted here:
825. ART, 25. WHO MAY SERVE ON COURTS-MARTIAL
(a) Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.
(b) Any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.
*(c)(1) Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of a session called by the military judge under section 839(a) of this title (article 39(a)) prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special courts-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.
(2) In this article, "unit" means any regularly organized body as defined by the Secretary concerned, but in no case may it be a body larger than a company, squadron, ship's crew, or body corresponding to one of them.
(d) (1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade.
(2) When convening a court-martial, the convening authority shall detail as member thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.
(e) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the Secretary concerned may prescribe, the convening authority may delegate his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant.
Basically if an enlisted member requests it, other enlisted members can serve on the board, up to one third of the total number of the board make up. With this Article, the military gives a nod toward satisfying the premise of being tried by your "peers". Military Law often mirrors civilian law but does come with it's own special bells and whistles which makes it unique and designed to tailor itself toward military personnel, as you well know.
One reason you see mostly higher ranking enlisted members serving is found in the bold area of the quote. It's almost uniformly accepted that higher ranking enlisted members satisfy the requirements spelled out over that of lower enlisted members.
It's kind of messed up for an accused PFC, but hey, I guess it's better than no enlisted on the board at all.
For Daylen, the authority for military law is found with the UCMJ itself. Congress gave the authority to the military to regulate it's own and the various Articles spell out that authority, as well as specific crimes, how to prosecute them, and the various punishments the boards can mete out.
Some of the specific Articles found within the UCMJ that actually spell out certain crimes or violations are quoted here:
888. ART. 88. CONTEMPT TOWARD OFFICIALS
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
889. ART. 89 DISRESPECT TOWARD SUPERIOR COMMISSIONED OFFICER
Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.
809. ART. 90. ASSAULTING OR WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER.
Any person subject to this chapter who--
(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his officer; or
(2) willfully disobeys a lawful command of his superior commissioned officer;
shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.
891. ART. 91. INSUBORDINATE CONDUCT TOWARD WARRANT OFFICER, NONCOMMISSIONED OFFICER, OR PETTY OFFICER
Any warrant officer or enlisted member who--
(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;
(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or
(3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his office;
shall be punished as a court-martial may direct.
892. ART. 92. FAILURE TO OBEY ORDER OR REGULATION
Any person subject to this chapter who--
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
You can see the entire UCMJ here for further reading:
http://www.au.af.mil/au/awc/awcgate/ucmj.htm
It's simply the first hit when doing a Google search, but there are other results found that you can pursue to find out the history of how it came about, and how exactly it's legal for what it attempts to do.
Notice Article 92 there. It's close to what we are discussing here in this thread concerning obeying lawful orders. Now, does a base commander putting out a blanket policy specifically addressing privately owned weapons constitute a lawful order making it an offense if not followed? My initial answer would be no, it does not fall into the category of a lawful order, depending on the state laws in which the base is located. It's been challenged before and such orders have been found to be in violation of military members constitutional rights. This is why you see orders of such kind nowadays with clever little riders like "Soldiers will voluntarily comply with the base commander's directive......blah blah..." etc etc....
They make these orders appear to be voluntary in nature, yet they leave the impression in no uncertain terms, that these directives should be complied with....hopefully silently as part of a normal part of normal military day to day compliance.
They will try to word such directives in a way which leaves them a legal out in case the orders are ever challenged in court. But, the military community's prevailing sentiment is to automatically comply with orders from superior officers, so it kind goes against the grain to stand up and challenge such things. That's both good and bad in my little opinion.
Complying with orders from superiors should be second nature for every member of the military, however, unlawful orders should be something members are aware of, as well as their duty to not follow them- as well as report them to higher member's of command. Most of us assume and trust that unlawful orders would never creep up in a non-combat environment but they do pop their head's up here and there occasionally, which is why there is some trepidation for lower ranking members to report such things. In a nutshell, it just don't feel right. But, that does not relieve people from their duty not to comply with unlawful orders and also to report them.
The trouble is, the base commander is normally the highest ranking military member on a specific base lol....sooo where do lower ranking people go for help? Thankfully, the chain of command stretches further than local bases, and even base commanders have bosses. You simply report unlawful orders they dictate to their bosses, whether it's the TRADOC, FORSCOM, Theater, or other such commander. They can also report unlawful orders to the post AG, IG, JAG, etc, for help as well.
So yeah, when a member's chain of command is doing the "just do it and shut up" dance in local unit formations, usually late in the day when their in jeopardy of staying beyond normal duty day hours, you can usually bet safely that the directives in question have some shadowy issues with them.
Woot.
