RESEARCH STARTER

Military justice and the Supreme Court

Military justice in the United States operates under a distinct framework separate from the civilian judicial system, a separation sanctioned by the U.S. Constitution. Specifically, Congress is authorized to regulate the armed forces, and the President serves as commander in chief. The Uniform Code of Military Justice (UCMJ) outlines military offenses and procedural guidelines, enabling commanders to impose disciplinary actions for minor infractions through Article 15 nonjudicial punishment, while more serious crimes are addressed in courts-martial. There are three types of courts-martial: summary, special, and general, each with varying levels of authority and procedural protections for the accused. The military justice system includes appellate courts and allows for some review by the U.S. Supreme Court, although its jurisdiction primarily applies to military personnel and is concurrent with civilian legal systems for nonmilitary offenses. Due process rights for service members are primarily statutory, highlighting the unique challenges within military justice, such as the potential for unlawful command influence. Overall, military justice seeks to maintain order and discipline while ensuring fair treatment for those serving in the armed forces.

Full Article

DESCRIPTION: Separate body of law and procedure that applies almost exclusively to persons serving in the United States Armed Forces.

SIGNIFICANCE: Military justice differs from civilian law in that constitutional guarantees have limited application to members of the military. Instead, Congress is responsible for the rights and safeguards applicable to members of the military.

As the Supreme Court noted in Parker v. Levy (1974), military jurisprudence exists separate and apart from the federal judicial system. This separateness is authorized by Article I, Section 8, Clause 14 of the US Constitution, which permits Congress to make rules to govern and regulate the armed forces, and Article II, Section 2, Clause 1, which makes the president the commander in chief of the US Army and Navy.

After World War II, revisions were made to the Uniform Code of Military Justice (UCMJ), which defines military crimes, and the Manual for Courts-Martial, which specifies military justice procedures. After these revisions were in place, commanding officers could impose nonjudicial, disciplinary punishments for minor offenses under Article 15 of the UCMJ. More serious offenses could be dealt with in courts-martial, military courts that consider the special requirements of the military for order, discipline, and efficiency. The military’s appellate system consists of Courts of Criminal Appeals for the Army, Navy, Marine, Coast Guard, and Air Force service branches (The Space Force utilizes the Air Force Court of Criminal Appeals) and the United States Court of Appeals for the Armed Forces (CAAF), which provides for discretionary review by writ of certiorari to the US Supreme Court. Effective 2024, the Section 867a revision eliminated the restriction on Supreme Court review where the CAAF had denied a petition for review. Consequently, all decisions of CAAF, including refusals to grant review, can be reviewed by the Supreme Court through a writ of certiorari under Section 1259 of Title 28, United States Code.

Except during wartime, the jurisdiction of the military justice system is confined to military personnel. Military jurisdiction is not exclusive, however, and civilian authorities have concurrent jurisdiction with the military over service members who commit nonmilitary crimes both in the United States and abroad, under the authority of status of forces agreements (SOFA), treaties, or international agreements concluded with host nations.

Article 15 and Courts-Martial

Jurisdiction is limited exclusively to criminal matters, primarily those defined in the UCMJ. In order for a service member to be the subject of an Article 15 proceeding, the matter must be a crime under the military code. Punishments for such infractions are limited by a table of maximum punishments and may be informal or formal. The severity of punishment that can be imposed is also affected by the rank of the officer conducting the procedure. Under the UCMJ, the rank of the officer conducting disciplinary proceedings directly influences the severity of punishment that can be imposed. In nonjudicial punishment (NJP) under Article 15, company-grade officers (O-3 and below) are limited in their authority and are allowed to impose less severe penalties such as short-term restrictions, extra duties, or minor forfeitures of pay. Field-grade officers (O-4 and above) have broader authority, which includes imposing longer restrictions, greater forfeitures, and reductions in rank for enlisted personnel. Senior officers, such as generals or admirals, may impose even more significant punishments and initiate courts-martial proceedings.

Under the UCMJ, a service member who is offered NJP under Article 15 has the right to refuse it and demand trial by court-martial, unless they are attached to or embarked on a vessel, in which case refusal is not permitted.

Many service members choose to accept NJP because the penalties are limited compared to those that could be imposed at a court-martial. For example, NJP cannot result in confinement or a punitive discharge, which are possible outcomes at a court-martial. Notably, once a service member accepts and undergoes NJP for a specific offense, that same offense cannot be retried at a court-martial, even if a commander later believes a harsher punishment is warranted. This protection functions similarly to double jeopardy in the civilian legal system, which prevents someone from being tried twice for the same offense.

There are three categories of courts-martial: summary, special, and general. A summary court-martial is provided for the trial of enlisted personnel only. It is presided over by a non-lawyer judge who serves, as the Supreme Court noted in Middendorf v. Henry (1976), “as judge, fact finder, prosecutor, and defense counsel.” For that reason, a summary court-martial is limited in the sanctions it can impose. An accused may refuse trial by a summary court-martial. A special court-martial is a true court presided over by a qualified military judge and a jury of court members made up of four service members who decide guilt or innocence and recommend a sentence. General courts-martial have the power to try any person subject to the military code and impose allowed punishments. Only a general court-martial may impose a dishonorable discharge and more serious penalties, such as death. A general court-martial consists of a legally qualified military judge eight court members, unless the accused elects to be tried by the judge alone. An accused may also choose judge-alone trial, a special court-martial, so a jury is not always required. In Ex parte Quirin (1942), the Supreme Court found that a military commission may try any persons subject to trial under the law of war when civilian authority is displaced by military occupation.

An accused person tried by either a special or general court-martial is entitled to be represented by assigned military counsel and enjoys rights against self-incrimination, exclusionary rule protection, and other protections similar to those enjoyed by civilians. Those safeguards are provided for by the military code. In Parker v. Levy, the Supreme Court recognized that due process protections for service members are provided by Congress and therefore are statutory, not constitutional in origin.

Commanders convene courts-martial and select court members, and the results of the trial are a recommendation to the commander on which he or she acts. The commander must accept a finding of not guilty but has discretion to disapprove all or any portion of a guilty verdict and may reduce, mitigate, or disapprove altogether a sentence or portion of a sentence. A unique problem growing out of the role of the commander in military justice is that of unlawful command influence or the improper interference by a military superior in the exercise of independent judgment by those charged with making decisions about the trial of service members accused of crimes. Clear regulatory prohibitions and the provision of a qualified, legally trained cadre of judge-advocates (or military lawyers) works to ensure the functioning of a military justice system that meets the requirements of the US Constitution and the expectations of fair treatment for those who serve in the nation’s armed forces.

O’Callahan v. Parker (1969) was a landmark Supreme Court decision that temporarily narrowed the scope of military jurisdiction under the UCMJ. Before this ruling, service members could be tried by court-martial for any offense, regardless of whether the crime was related to their military service. The military operated under a status-based standard, meaning that being on active duty alone was sufficient to place a service member under military jurisdiction, even for civilian-type crimes committed.

In O’Callahan, the Court held that military courts lacked jurisdiction to try a service member for crimes that were not “service-connected.” The case involved an Army sergeant charged with attempted rape, housebreaking, and assault, committed while off duty and off base. The Court ruled that these offenses should be tried in civilian courts, holding that constitutional protections like trial by jury should not be bypassed for non-military offenses. This established a “service-connection test,” which limited court-martial jurisdiction to offenses with a direct relationship to military duties or discipline.

This precedent stood until the Supreme Court reversed their decision in Solorio v. United States (1987). In Solorio, the Court rejected the service-connection requirement and reinstated the status-based jurisdiction under the UCMJ. It held that the status of the accused as a service member is the only requirement for court-martial jurisdiction, regardless of the nature or location of the offense.

In the twenty-first century, the core holding of Solorio continues to guide the Supreme Court’s view of military justice. Service members and advocacy groups have occasionally raised constitutional challenges to military jurisdiction—especially concerning offenses committed off duty or entirely in civilian settings—but the Court has routinely declined to hear cases that would force a reevaluation of Solorio.

For example, in Larrabee v. Del Toro (2021), a federal district court found that court-martialing a retired Marine for post-retirement misconduct violated constitutional principles. However, on appeal, the Washington D.C. Circuit upheld the military’s authority, and while the case garnered attention, the Supreme Court refused to review the case in 2023, reaffirming the principle that the military is a separate constitutional community with its own rules, procedures, and disciplinary needs.


Bibliography

“Article 15 Fact Sheet.” United States Army Trial Defense Service (TDS), www.7atc.army.mil/Portals/17/Documents/SJA/TDS_AR15.pdf. Accessed 9 Apr. 2026.

Bishop, Joseph W., Jr. Justice Under Fire: A Study of Military Law. Charterhouse, 1974.

“Larrabee v. Del Toro.” SCOTUS blog, 2023, www.scotusblog.com/case-files/cases/larrabee-v-del-toro/. Accessed 9 Apr. 2026.

Lurie, Jonathan. Arming Military Justice: Origins of the United States Court of Military Appeals, 1775-1950. Princeton UP, 1992.

Lurie, Jonathan. Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951-1980. Princeton UP, 1998.

“Manual for Courts-Martial, United States (2024 Edition).” Joint Service Committee on Military Justice, US Department of Defense, 2024, jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-%20TOC%20no%20index.pdf?ver=b7JVpxV5rbIHg0ENlCRVKQ%3D%3D. Accessed 9 Apr. 2026.

“Military Justice Overview.” Victim and Witness Assistance Council, vwac.defense.gov/military.aspx. Accessed 9 Apr. 2026.

Shanor, Charles A., and L. Lynn Hogue. Military Law in a Nutshell. 4th ed., West Publishing, 2013.

“10 U.S. Code § 816 – Art. 16. Courts-Martial Classified.” Cornell Law School, www.law.cornell.edu/uscode/text/10/816. Accessed 9 Apr. 2026.

“10 U.S. Code § 867a – Art. 67a. Review by the Supreme Court.” Cornell Law School, www.law.cornell.edu/uscode/text/10/867a. Accessed 9 Apr. 2026.

Full Article

DESCRIPTION: Separate body of law and procedure that applies almost exclusively to persons serving in the United States Armed Forces.

SIGNIFICANCE: Military justice differs from civilian law in that constitutional guarantees have limited application to members of the military. Instead, Congress is responsible for the rights and safeguards applicable to members of the military.

As the Supreme Court noted in Parker v. Levy (1974), military jurisprudence exists separate and apart from the federal judicial system. This separateness is authorized by Article I, Section 8, Clause 14 of the US Constitution, which permits Congress to make rules to govern and regulate the armed forces, and Article II, Section 2, Clause 1, which makes the president the commander in chief of the US Army and Navy.

After World War II, revisions were made to the Uniform Code of Military Justice (UCMJ), which defines military crimes, and the Manual for Courts-Martial, which specifies military justice procedures. After these revisions were in place, commanding officers could impose nonjudicial, disciplinary punishments for minor offenses under Article 15 of the UCMJ. More serious offenses could be dealt with in courts-martial, military courts that consider the special requirements of the military for order, discipline, and efficiency. The military’s appellate system consists of Courts of Criminal Appeals for the Army, Navy, Marine, Coast Guard, and Air Force service branches (The Space Force utilizes the Air Force Court of Criminal Appeals) and the United States Court of Appeals for the Armed Forces (CAAF), which provides for discretionary review by writ of certiorari to the US Supreme Court. Effective 2024, the Section 867a revision eliminated the restriction on Supreme Court review where the CAAF had denied a petition for review. Consequently, all decisions of CAAF, including refusals to grant review, can be reviewed by the Supreme Court through a writ of certiorari under Section 1259 of Title 28, United States Code.

Except during wartime, the jurisdiction of the military justice system is confined to military personnel. Military jurisdiction is not exclusive, however, and civilian authorities have concurrent jurisdiction with the military over service members who commit nonmilitary crimes both in the United States and abroad, under the authority of status of forces agreements (SOFA), treaties, or international agreements concluded with host nations.

Article 15 and Courts-Martial

Jurisdiction is limited exclusively to criminal matters, primarily those defined in the UCMJ. In order for a service member to be the subject of an Article 15 proceeding, the matter must be a crime under the military code. Punishments for such infractions are limited by a table of maximum punishments and may be informal or formal. The severity of punishment that can be imposed is also affected by the rank of the officer conducting the procedure. Under the UCMJ, the rank of the officer conducting disciplinary proceedings directly influences the severity of punishment that can be imposed. In nonjudicial punishment (NJP) under Article 15, company-grade officers (O-3 and below) are limited in their authority and are allowed to impose less severe penalties such as short-term restrictions, extra duties, or minor forfeitures of pay. Field-grade officers (O-4 and above) have broader authority, which includes imposing longer restrictions, greater forfeitures, and reductions in rank for enlisted personnel. Senior officers, such as generals or admirals, may impose even more significant punishments and initiate courts-martial proceedings.

Under the UCMJ, a service member who is offered NJP under Article 15 has the right to refuse it and demand trial by court-martial, unless they are attached to or embarked on a vessel, in which case refusal is not permitted.

Many service members choose to accept NJP because the penalties are limited compared to those that could be imposed at a court-martial. For example, NJP cannot result in confinement or a punitive discharge, which are possible outcomes at a court-martial. Notably, once a service member accepts and undergoes NJP for a specific offense, that same offense cannot be retried at a court-martial, even if a commander later believes a harsher punishment is warranted. This protection functions similarly to double jeopardy in the civilian legal system, which prevents someone from being tried twice for the same offense.

There are three categories of courts-martial: summary, special, and general. A summary court-martial is provided for the trial of enlisted personnel only. It is presided over by a non-lawyer judge who serves, as the Supreme Court noted in Middendorf v. Henry (1976), “as judge, fact finder, prosecutor, and defense counsel.” For that reason, a summary court-martial is limited in the sanctions it can impose. An accused may refuse trial by a summary court-martial. A special court-martial is a true court presided over by a qualified military judge and a jury of court members made up of four service members who decide guilt or innocence and recommend a sentence. General courts-martial have the power to try any person subject to the military code and impose allowed punishments. Only a general court-martial may impose a dishonorable discharge and more serious penalties, such as death. A general court-martial consists of a legally qualified military judge eight court members, unless the accused elects to be tried by the judge alone. An accused may also choose judge-alone trial, a special court-martial, so a jury is not always required. In Ex parte Quirin (1942), the Supreme Court found that a military commission may try any persons subject to trial under the law of war when civilian authority is displaced by military occupation.

An accused person tried by either a special or general court-martial is entitled to be represented by assigned military counsel and enjoys rights against self-incrimination, exclusionary rule protection, and other protections similar to those enjoyed by civilians. Those safeguards are provided for by the military code. In Parker v. Levy, the Supreme Court recognized that due process protections for service members are provided by Congress and therefore are statutory, not constitutional in origin.

Commanders convene courts-martial and select court members, and the results of the trial are a recommendation to the commander on which he or she acts. The commander must accept a finding of not guilty but has discretion to disapprove all or any portion of a guilty verdict and may reduce, mitigate, or disapprove altogether a sentence or portion of a sentence. A unique problem growing out of the role of the commander in military justice is that of unlawful command influence or the improper interference by a military superior in the exercise of independent judgment by those charged with making decisions about the trial of service members accused of crimes. Clear regulatory prohibitions and the provision of a qualified, legally trained cadre of judge-advocates (or military lawyers) works to ensure the functioning of a military justice system that meets the requirements of the US Constitution and the expectations of fair treatment for those who serve in the nation’s armed forces.

O’Callahan v. Parker (1969) was a landmark Supreme Court decision that temporarily narrowed the scope of military jurisdiction under the UCMJ. Before this ruling, service members could be tried by court-martial for any offense, regardless of whether the crime was related to their military service. The military operated under a status-based standard, meaning that being on active duty alone was sufficient to place a service member under military jurisdiction, even for civilian-type crimes committed.

In O’Callahan, the Court held that military courts lacked jurisdiction to try a service member for crimes that were not “service-connected.” The case involved an Army sergeant charged with attempted rape, housebreaking, and assault, committed while off duty and off base. The Court ruled that these offenses should be tried in civilian courts, holding that constitutional protections like trial by jury should not be bypassed for non-military offenses. This established a “service-connection test,” which limited court-martial jurisdiction to offenses with a direct relationship to military duties or discipline.

This precedent stood until the Supreme Court reversed their decision in Solorio v. United States (1987). In Solorio, the Court rejected the service-connection requirement and reinstated the status-based jurisdiction under the UCMJ. It held that the status of the accused as a service member is the only requirement for court-martial jurisdiction, regardless of the nature or location of the offense.

In the twenty-first century, the core holding of Solorio continues to guide the Supreme Court’s view of military justice. Service members and advocacy groups have occasionally raised constitutional challenges to military jurisdiction—especially concerning offenses committed off duty or entirely in civilian settings—but the Court has routinely declined to hear cases that would force a reevaluation of Solorio.

For example, in Larrabee v. Del Toro (2021), a federal district court found that court-martialing a retired Marine for post-retirement misconduct violated constitutional principles. However, on appeal, the Washington D.C. Circuit upheld the military’s authority, and while the case garnered attention, the Supreme Court refused to review the case in 2023, reaffirming the principle that the military is a separate constitutional community with its own rules, procedures, and disciplinary needs.


Bibliography

“Article 15 Fact Sheet.” United States Army Trial Defense Service (TDS), www.7atc.army.mil/Portals/17/Documents/SJA/TDS_AR15.pdf. Accessed 9 Apr. 2026.

Bishop, Joseph W., Jr. Justice Under Fire: A Study of Military Law. Charterhouse, 1974.

“Larrabee v. Del Toro.” SCOTUS blog, 2023, www.scotusblog.com/case-files/cases/larrabee-v-del-toro/. Accessed 9 Apr. 2026.

Lurie, Jonathan. Arming Military Justice: Origins of the United States Court of Military Appeals, 1775-1950. Princeton UP, 1992.

Lurie, Jonathan. Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951-1980. Princeton UP, 1998.

“Manual for Courts-Martial, United States (2024 Edition).” Joint Service Committee on Military Justice, US Department of Defense, 2024, jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-%20TOC%20no%20index.pdf?ver=b7JVpxV5rbIHg0ENlCRVKQ%3D%3D. Accessed 9 Apr. 2026.

“Military Justice Overview.” Victim and Witness Assistance Council, vwac.defense.gov/military.aspx. Accessed 9 Apr. 2026.

Shanor, Charles A., and L. Lynn Hogue. Military Law in a Nutshell. 4th ed., West Publishing, 2013.

“10 U.S. Code § 816 – Art. 16. Courts-Martial Classified.” Cornell Law School, www.law.cornell.edu/uscode/text/10/816. Accessed 9 Apr. 2026.

“10 U.S. Code § 867a – Art. 67a. Review by the Supreme Court.” Cornell Law School, www.law.cornell.edu/uscode/text/10/867a. Accessed 9 Apr. 2026.

More Like ThisRelated Articles

Related Articles (1)

Related Articles (1)