A Comparison of the Turkish and American Military Systems of Nonjudicial Punishment

• Author: Flirt Lieutenant Hikrnet Sene
• Pages: 04

1. INTRODCCTION A. BACKGROCSD OF MILITARY JCSTICE IS THE rTZTED STATES

A iull exploration of the history oi the Cnijoim Code oj .Ilihtoiy Juslm and today's system for the administration of crirmnai lax in the Armed Foroee of the Umted States would ultimately lead back to the Greeks and Romans aho seem to have deleloped B erude eyctem of military justice, and to the Crusaders uho had the firet knom formal military code. From these sources evolved the British Articles of War. on which the Thirteen Colonies modelled the first Americitn Articles of Wml

For the puipoeeôf th16 article, however, It IS sufficient to note that the United States Constitution, Article I, Seetion 8, empoaerr Congrew to make "Rules for the Goiernment and Regulation oi the land and naval iarcea." Under this authority, Congress has mer the years emoted and irequently revised the Articles of Wsr far the regulation oi the Army," Artioles ior the Government of the Smy: and. finally,

ed to The Judge idiocate Gen-while the aurhor U Q ~ a mmbei

the present I'nzjoisi Code of .lJtlttaq Justice ,hereinafter referred to as the "UCMJ"i, applicable to all rnitcd Stater Armed Farces. Article 11. Section 2 of the Constitution provides that the President shall be Commander in Chief of the Army and Kavy and of the militia uf the severel states nhen called into the muai service oi the Cnited States. By reason of this authority.> Presidents hare promulgated various Executive Orders pertaining to militery juitioe In facr, the United States .tJoni~oI for Courts-.liartiol, ahlch. among other things. prescribes the rules ai ewdenee and procedure to he used by cour~s-martial and the msxnnum punishments imposahie thereby IS itaeli an Executive Order

Until 1951 the United Stares Army and Air Force operated under the Articles of TVar The S'ary uai goierned by the Articles for the Government of the Xavy. and Coast Guard justice was like that ai the Sary This inter-service diversity m the methods oi administering military justice contrasted with the movement after TTorld \Tar I1 toisrd unification by the Armed Farcea. The CChlJ, which beoame effec-tive h l q 1, 1951. unified, rewed, and codified the Articlea ai War, and the Articles for the Government ai the Sary, llarine Corps and Coaet Guard. bringing all the United Stater Armed Forces into the same framework oi Isiv. The UCJIJ coniieti of eleien parts and 140 artiole8. hr-tick 16 oi the UCMJ. however, which pertaim to nonjudicial puniahment, WBB revised in 1962' These nealy revised nonjudicial puniihment provisiona became effective on February 1. 1963.

B BACKGROL'.YD OF MILITARY JUSTICE I S TI'RKEY The military justice ryatem, m effect during the Ottoman Empire early in the nineteenth century. consisted ai numerous i m s , regulatione, and customs ai the military service developed over many yeara which had never been considered BE B whole or enacted into a eingle, integrated military code Until 1830 this U B ~

the body oi law that eonetituted the

Turkish system of military justice hlany revisions were made in these laws during the 100 years this system was in farce After World War I and the Turkish Independence War, the Ottoman Empire w8e replaced by the new Turkish Republic, a-hose ioundations were eathblished upon B modern Constitution and a seriee of Constitutional Lawe, enacted on

'See slao .Article 88 of h e rCMJ ivhrih ~utlmiizeb and drreiri rhe President

to pieacribe ruled and regulations concerning iulei of evidence and pmeedure fop

u8e ID m e s tried before coartsmarfisl under the rCMJ

&Exec Order Ka 10214 11961)

' 10 C B C 8 815 BP amended by P L 87-848. 01. 87th Cow,

2d Bear, 76 Stat 447 (1982) U~nlrcr othervise atared all references heremaftel to .Article 15 relei IO .Article 16 na amended112 TACO i0JBB

TURKISH NONJUDlClAL PUNlSHMENT

October 29 1923 After the establishment of the Turkiah Republic, the military justice ayetcm developed during the Ottoman Empire WE Ken-erally eonridered to be uneonstitutmnsl, and an entirely new TwkGh Milttory Cnminol Code and ,Ililtta?y Cnmzml Piocedwe Code were prepared and accepted by the Turkiah Great National Assembly in 1930 The Turkish Wilzfory Cnminal Code was enacted by Lair 8um-ber 1932, ir-hxh became effective on June 14. 1930. The Turkwh Mth-tory Cnmznol Procedure Code "BE enacred by Law Number 1931 and became effectire on June 15, 1930 Both coder a-ere prepared to meet the rtdministrstire needs of the Turkish Armed Forces, and were based upon a thorough surrey of the German, Belgian, and French military codes. The Turkish Mdztary Cnmtnal Code (heremafter referred to as the "ThlCC") contains two parts and, over all, 196 articles. The first part deals with military offenses, misdemeanors, and their punishment; part two. eonelsting of Articles 162 through 192, deals with nonjudicial punishment. Both the TMCC and Military Cnminal P~ocedure Coda have since been revised B number of times to meet the changing needs of the Turkish Armed Forces.

It 1s to be expected that the United States and Turkish wstems of military juetice wmld differ in many respects In spite of these differ-ences, however. the armed farces of both countries share the 68me h a m need for B workable system of nonjudicial punishment The most important inquiry is whether the nonjudicial punishment systems of both countries are properly adapted to the personnel structure& and needs of their respective armed forces. If either system, or a pert of either sye-tem. does nm meet this test. dutmn ahould be found that will make each eauntry'a system reaponsire to Its militsrp needs.

Aeeordingly. it ieeme best first to outline the peraonnel erructures of the armed forces of each country. and the basic philosophy and purpoaes of nonpdicml punishment in both syetemr We shall then compare the substantive prerequisites far the imposition of nonjudicial punishment, and the punishment? t h u may be impoeed, in both Turkey and the United States. followed by mme derailed eompsrisane of key proee-dural idee in both systems. Consideration will then be given to what-ever changes and recommendations seem desirable, on the baais of these comparisons Before proceeding. a general word of caution ie in order: throughout this article, 811 quotations, paraphrases and ehareoterisstions of provisions of Turkish law are baeed on the outha's translations, andare not to be regarded as official.

11s

TAG0 , o m

I1 JIILITARY PERSOYSEL IK THE ARMED FORCE? OF THE TSITED STATES AKD TrRKEY

A I.\- THE ['SITED 3TATESThe Armed Farm of the Unired States consist ai rile Army, Air Force. Smy and 3larine Carps ' Genethe Armed Farces are composed of coin

man)- respects such 8s grade or rank. pay grade. and mhtar? title of address, the Sal? and \farm Corps differ in inany respects

A "commiaimned officer' holds his grade and office iindei a cmiiiiib- ion issued by the Pieiident. In the Army the l o r ~ ~ t grade io\ R eomiriirsioned officer IS that of aeeond lieurenant lo

rant issued by the Secrerary of tlB skilled technician required to filare too qeeialiaed to permit the effecrire urilrzatian of more broadly tiamed coinmiraioned officers The Army and Air Force have onl? warrant officers The Say)-. haaewr ale0 has "commirmned" v a r r m ~ officer;. nlio retene comrni~sion~as such from The President and )rho rant office,. All "Brrmt officers gennd mthmty although the "miimis- ' has p a r e r command authoiity ~ I m n

B T I O U ~ Armed Forcpi of the l-mtc dtatei comprise the most diverse elass of iiiilitai? perwnnel The ten

In general. a ''WBrrant officer" I,

TURKISH SONJUDICIAL PUSISHMENT

"enlisted member" includes all peraani serving in enlirred grade both msle and female. The enlisted members of the Armed Farces are dietributed into nine pay grades. E-l rhraugh E-S. There are three die-tinct clasats of enlisted personnel m theoffieere. (bi specmlms and I C ) privateeer IS an enliired member in pay graddirt. ir-ho fills positions requiring qualities of leadership .1 special-an enlisted niembei the Army in pay grade E-4 or higher aho I J pomtmns requiring technical skills. Specialistr do not erereme command and regardless of pay grade rank belair- 811 noneammirsioned officers In the Army, rhe relatmnship of ''rpeeialiitr" to ' naneommm to the relationship that enst$ betwen

Hoae~er, rhe concept ai of enlisted personnel is not used by the other Armed Forces Pap grades E-l thiauph E-3 are alloeaced to enlisted members aho me private soldiers.

Each ai the Armed Farces of the United States has a laige body of Reserve nulitmy perronnel officer and enlisted, d,a ma? be serving on nctive dut>- or merely in I ~ B C I L I . ~

eratu subject to being ordered to actire duty Tire Reserve farces have much the came personnel atructure as that of the Regular farces.

oned officers

2. I.\- TI-RKEP

   Although military eemm IS not eampulsor)- iar all male C L T ~ Z ~ ~ E of

   lsary far all male citizens ai Turkey

   of compulsory military service is TWO years m either the Army or Air Force, but k i - 0 and one half years in the Sa\y. h person aver twenty

   years of age n-ho is B student in any school or university map be de-ferred from compulsory military ~ e r ~ i e e until hie education is eompleted In practice, msximum age limitations imposed by the regulation~ of schools and universities far admidrim and continuance as atudente therein fix the ages beyond \vhich military serv~ce e m no longer be deferred. If a dudent reaches a maximum age so prescribed. he must postpone further education until completion of his eampulior?-military service. In addition, the Turkish Milnary Senice I m a140 prescribes a maximum lirmt of thirty-one yeus of age for the deferment of any indiridual who, after graduation from a university. le engaged in postgraduate study or research ~n any branch of learnmg. whether in or out of Turkey This latter age limit WE intentionally placed high in order to aroid interruption of postgraduate =,ark hy

   TAOO 711B 116

   military ~ervice Hoaever...