Military Law

There are several fascinating aspects to military law, but the most important thing a service member, dependent, military spouse, or retirees need to know about military law? Do not attempt to navigate it on your own as your own legal counsel.

There are too many reasons for this to list, but one of the most important is when navigating military laws, you need to know both the past precedents for current law and how many cases have been successful or have failed where that specific point of law is concerned.

Those with no legal experience, or with no legal experience with military law will be at an extreme disadvantage.

Military Law Versus Federal Laws Designed to Protect Military Members

There are federal laws on the books that specifically address military members. The Service members Civil Relief Act (SCRA) is one such federal law. SCRA protects military members and helps “to ease financial burdens on service members during periods of military service.”

SCRA guidelines affect how troops can deal with rental agreements, security deposits, prepaid rent, evictions, installment contracts and credit card interest rates, among many other areas.

It has been revised and updated several times over the years and generally provides legal relief for troops who may face financial hardships or complications due to military service.

But laws like the SCRA are not considered “military law” for our purposes here. Military laws are those written specifically for the military services to organize and provide guidance for military operations, missions, troops, events, land, etc. The SCRA addresses consumer laws that just so happen to affect military members.

The Uniform Code of Military Justice and other associated law books (see below) contain military laws that affect all U.S. military operations around the globe.

The Core Of U.S. Military Law

The basic central structure of military law is known as the Uniform Code of Military Justice or UCMJ for short. This code, established in the 1950s, applies to all members of all branches of military service, hence the word “uniform” in the title–the laws are applied uniformly no matter which branch of service you’re in.

The UCMJ does not stand alone. There is also a set of guidelines called Military Rules of Evidence and the Rules For Courts-Martial. These three documents establish a start-to-finish set of rules and requirements that must be followed to pursue judicial punishment under the Uniform Code of Military Justice.

UCMJ rules do not automatically refer all military legal cases to a court-martial. In some cases, there may be no court activity whatsoever if infractions or offenses listed in the UCMJ come with the option for non-judicial punishment.

On Non-Judicial Punishment

There is a classic management trope that holds its crucial to resolve conflicts at the lowest possible level. This notion is reflected in the UCMJ, which allows non-judicial punishment for many violations. This allows commanders to use discretion in dealing with legal issues that arise out of misconduct, disobedience, insubordination or other problems.

The UCMJ does not assign a one-size-fits-all approach to punishment, conflict resolution, etc.

A Brief History of U.S. Military Law

Military law in American history can be traced back to 1775 and the Second Continental Congress, which established the Articles of War (69 in all) and officially regulated the Continental Army.

Fast-forward to 1788 and the ratification of Article One, Section 8 of the U.S. Constitution, which authorizes Congress to regulate military forces. Another milestone was reached in 1806, with 101 new Articles of War which would be revised in 1916, and again in 1920 before reaching some major changes after World War Two thanks to the 1948 Selective Service Act.

The Articles of War, plus an additional set of guidelines known as Articles for the Government of the Navy, would serve as the official guidance of U.S. military legal issues until the ratification of the Uniform Code of Military Justice May 31, 1951.

The present-day UCMJ is, at the time of this writing, contained in the 2019 edition of the Manual for Courts-Martial. Changes to the UCMJ may come from the president via an executive order, but also through other channels including the National Defense Authorization Acts passed in any given year.

What Military Law Does

Military law is as complex as any other aspect of legal practice. Military law lists all the offenses for which you can be punished under the UCMJ, the options and recourse commanders and soldiers, sailors, Airmen, Marines, and Coast Guard members have under the law, etc.

But military law is not just about maintaining good order and discipline; there are military laws negotiated with host nations, for example that determine who gets prosecutorial authority over a military member, dependent or spouse.

Legal Issues At Overseas Military Assignments

For example, if a military member accidentally hits the vehicle of a “host national” (the UCMJ legalese for a citizen of the country where the military member is stationed overseas), does the military legal system investigate and prosecute where appropriate? Or does the host nation’s legal system deal with the case?

Negotiating such terms is usually associated with the creation of a document called the Status of Forces Agreement. The Defense Department negotiates with the government of the host nation to decide who will take responsibility in such cases. Ideally, the U.S. government wants the ability to discipline, arrest, prosecute, punish or exonerate its own employees.

In some cases, the host country may insist on taking the lead in investigations, pre-trial restrictions, etc. The U.S. government tends to agree to allow the host nation’s efforts in this area in more extreme cases, but for “typical” situations, the host nation may take a more hands-off approach.

Military Law And Dependent Conduct

There are some aspects of military law that apply directly to the service member, but not to the dependents or spouses of the service member. For example, troops are not allowed to smoke marijuana, even in states where it is legal in one form or another.

Dependents are not subject to the prohibition of legal cannabis in the same way. What happens if a military dependent or spouse uses legal medical cannabis?

The UCMJ cannot prosecute a civilian who does not fall under its jurisdiction but that does not mean there are no consequences. It is just that some consequences do not involve the need for a judge, a prosecuting attorney, etc.

A military member may be pressured by the chain of command to intervene in situations that skirt military law but do not involve the soldier directly. In some cases, the only recourse the chain of command has is to bar dependents or spouses from the base and refuse them access to services and facilities they would otherwise be entitled to use.

If a military dependent or spouse accompanying the service member overseas violates the law of the host nation or is involved in an incident that invokes portions of the Status of Forces Agreement to remedy, the dependents or spouse could lose their privileges to remain in the host country with the military member.

None of those types of remedies requires a court-martial or even a lawyer. Those facing such action should get the assistance of a lawyer with experience specifically in military law.

Knowing how military cases are run is key to a successful defense. A lawyer who knows the law but not the military system is at a serious disadvantage.

Military Law Resources You Should Know

One of the most important resources any service member, dependent, or military spouse has at their disposal is the nearest base Legal Assistance Office, which can help with resources or advice (but not legal representation) in a variety of areas from more routine needs such as wills, powers of attorney, and notary services to more serious issues like dealing with misdemeanor law violations or traffic tickets.

The range of services available from many such offices may include (but is not limited to):

• Drafting powers of attorney
• Drafting wills
• Estate planning
• Family law (including marriage, divorce, alimony, etc.)
• Contract review
• Lease review
• Notary services
• Consumer advice including help with identity theft
• Tax help
• Immigration and naturalization issues
• Civil lawsuits
• Service member rights and responsibilities
• Misdemeanors

Other resources include the Department of Justice Service member’s Rights Center is a Federal Government resource for military members. This resource includes facts about the government resources available to those who need help exercising their legal rights.

The Manual For Courts-Martial/Uniform Code of Military Justice is an important document to be familiar with even if you are not experiencing a legal need. Military promotion tests often include questions about UCMJ content, military history including how the UCMJ evolved. 

Legal Assistance Offices do have limitations on what they can do to help. Those limits include:

• Providing legal advice to third parties
• Giving legal advice to opposing parties on the same issue
• Helping with claims against the government
• Helping in “serious criminal matters”
• Legal matters involving a service member’s privately-owned business
• In-court representation

The legal assistance office nearest you may or may not have additional restrictions and not all services are available from all offices. Much depends on the size of the base, demand, and other variables.