NCJ Number
17667
Journal
Michigan Law Review Volume: 72 Issue: 7 Dated: (JUNE 1974) Pages: 1431-1461
Date Published
1974
Length
31 pages
Annotation
ARTICLE 15 OF THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ) ENABLES A COMMANDING OFFICER TO SENTENCE A SERVICE MEMBER WHO HAS COMMITTED A MINOR INFRACTION TO 30 DAYS OF CORRECTIONAL CUSTODY.
Abstract
THIS NOTE CONSIDERS WHETHER THE FAILURE OF THE MILITARY TO PROVIDE COUNSEL AT AN ARTICLE 15 PROCEEDING IS CONSISTENT WITH THE SIXTH AMENDMENT, WHICH PROVIDES THAT IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE. DISCUSSED FIRST IS THE EXTENT TO WHICH MILITARY NECESSITY QUALIFIES THE APPLICATION OF THE BLOC OF RIGHTS AND THE SIXTH AMENDMENT TO ARMED FORCES PERSONNEL. THE AUTHOR CITES SEVERAL U.S. SUPREME COURT DECISIONS TO SUPPORT HIS VIEW THAT THE PROTECTION THAT THE SERVICE MEMBER RECEIVES DEPENDS ON A BALANCING OF THE INDIVIDUAL'S CONSTITUTIONAL RIGHTS AGAINST THE DEMANDS OF MILITARY NECESSITY. ASSUMING THAT MILITARY NECESSITY DOES NOT BAR THE APPLICATION OF THE SIXTH AMENDMENT TO ARTICLE 15 CASES, HE EXAMINES SOME OF THE SUBSTANTIVE DETERMINANTS OF THE RIGHT TO COUNSEL, SUCH AS THE PRESENCE OR ABSENCE OF A CRIMINAL PROSECUTION OR IMPRISONMENT. ARREST IN QUARTERS AND RESTRICTION TO AN AREA ARE JUDGED INSUFFICIENTLY SEVERE TO CONSTITUTE 'IMPRISONMENT', WHILE COURT DECISIONS ARE CITED WHICH REQUIRE THAT A SERVICE MEMBER BE GIVEN A RIGHT TO COUNSEL IN AN ARTICLE 15 PROCEEDING THAT RESULTS IN CORRECTIONAL CUSTODY. ALSO EXAMINED IS WHETHER THE RIGHT TO COUNSEL DEMANDS THAT THE ACCUSED RECEIVE THE AID OF A TRAINED ATTORNEY. SPECIFICALLY ADDRESSED WAS THE CONSTITUTIONALITY OF THE PROVISION OF NONLAWYER COUNSEL FOR THE ACCUSED IN ARTICLE 15 PROCEEDINGS. THE AUTHOR ARGUES THAT THE SIXTH AMENDMENT REQUIRES PROVISION OF TRAINED LAWYERS, OR AT THE LEAST PERSONS COMPETENT IN MILITARY LAW. (AUTHOR ABSTRACT MODIFIED)