Military Law

Author:Jeffrey Lehman, Shirelle Phelps

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The body of laws, rules, and regulations that have been developed to meet the needs of the military. It encompasses service in the military, the constitutional rights of service members, the military criminal justice system, and the INTERNATIONAL LAW of armed conflict.

The Framers of the Constitution vigorously debated the necessity and advisability of a standing army. Federalists such as ALEXANDER HAMILTON and JAMES MADISON argued that a standing army was needed for the maintenance of a unified defense. Others, like THOMAS JEFFERSON and GEORGE MASON, were fearful of instituting a military establishment that could be an instrument of governmental abuse. They argued that the Constitution should prohibit, or at least limit, the size of the armed forces. The opposing sides compromised by approving a standing army but limiting appropriations for its support to two-year terms, thereby imposing a continual check on the military's activities.

The authority of the government to maintain a military and to develop rules and regulations governing it is found in Article I, Section 8, of the Constitution, which grants Congress the power to provide for the common defense and to raise and support armed forces.

The U.S. Supreme Court confirmed the legality of the standing army in EX PARTE MILLIGAN,

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71 U.S.(4 Wall.) 2, 18 L. Ed. 281 (1866). It held that the Constitution allows Congress to enact rules and regulations to punish any member of the military when he or she commits a crime, in times of war or peace and in any location. The Court further confirmed the constitutionality of MARTIAL LAW in situations where ordinary law is insufficient to secure public safety and private rights.

Service in the Military

Congress's duty to provide for the national defense is carried out through four basic routes into military service: enlistment, activation of reservists, CONSCRIPTION, and appointment as an officer.

Typically, military enlistment entails a six-year service obligation, usually divided between active and reserve duty. Enlistees agree to abide by the provisions of the UNIFORM CODE OF MILITARY JUSTICE, (UCMJ) obey lawful orders, serve in combat as required, and accept any changes in status or benefits brought about by war or statutory amendments. In return, the military branch agrees to provide the enlistee with compensation and to honor promises concerning assignment, education, compensation, and support of dependents.

Enlistment is open to persons who are at least 17 years old and who enter into the enlistment agreement voluntarily. It is not available to declared homosexuals (although the military may not inquire as to sexual orientation) or to unmarried parents of children under 18 years of age. Enlistees are required to sign the enlistment agreement and, in most cases, to take the oath of allegiance.

Enlistment in the armed forces creates both a contractual obligation and a change in the recruit's legal status. (See United States v. Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 [1890].) Although personal service contracts are generally not enforceable, the courts recognize the special legal status of military enlistees and have required those who breach the enlistment contract to remain in the service or serve a prison term. However, after the institution of the all-volunteer military during the 1970s and 1980s, the courts relied more on traditional contract law when ruling on breach-of-enlistment suits. (See Woodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987], and Cinciarelli v. Carter, 662 F.2d 73, 213 U.S. App. D.C. 228 [D.C. Cir. 1981], where the courts applied contract law principles and found that the enlistments in question were void or voidable.)

Reservists or NATIONAL GUARD members are civilians who are subject to active service to execute laws, suppress insurrections, and repel invasions. Several suits by state governors have challenged congressional power to call up reservists. In Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990), a suit by Minnesota's governor challenging Congress's authority to call reservists to active duty, the U.S. Supreme Court confirmed that the reserve system, under which members serve in both the state National Guard and the federal National Guard, is a necessary and proper exercise of Congress's power to raise and support armies.

Conscription, also known as the draft, is another route by which individuals are inducted into military service. The draft was the primary means of filling the ranks of the military from WORLD WAR I through WORLD WAR II, the KOREAN WAR, and the VIETNAM WAR. Although many cases challenged the constitutionality of conscription, the U.S. Supreme Court has consistently held that Congress's power to conscript Americans for military service is "beyond question." (See United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968].) Deferments and exemptions from the draft were granted for certain physical, mental, and religious reasons, or where induction would cause an undue hardship on the draftee or the draftee's family. The draft was abolished in 1972.

The final method of entry into the military is through appointment as an officer. Officer appointments are governed by the Appointments Clause of the Constitution (Art. II, Sec. 2, Cl. 2). Officers are appointed to a rank within a specific branch of the service.

Most military personnel serve their entire tour of duty and are discharged without any complications. An honorable discharge must be issued when a service member's record reflects acceptable military conduct and performance of duty (32 C.F.R. pt. 41, app. A). An honorable discharge cannot be denied without DUE PROCESS OF LAW. (See United States ex rel. Roberson v. Keating, 121 F. Supp. 477 [N.D. Ill. 1949].) A general discharge under honorable conditions may be issued when the service member's record does not warrant an honorable discharge because of ineptitude, defective attitude, or apathy (32 C.F.R. pt. 41, app. A).

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A discharge under other than honorable conditions may be issued under certain circumstances indicating that a service member's behavior is inconsistent with conduct expected of military personnel (32 C.F.R. pt. 41, app. A, pt. 2). In most cases, the service member must be notified and given an opportunity to request review of the discharge by an administrative review board.

Bad-conduct and dishonorable discharges are punitive discharges that may be issued only after a full COURT-MARTIAL. Each results in loss of veterans' benefits and, in some cases, loss of CIVIL RIGHTS.

In addition to discharges, separations from military service may be accomplished through administrative proceedings (10 U.S.C.A. § 1169). The Department of Defense outlines the reasons, guidelines, and procedures for administrative separation (32 C.F.R. pt. 41, app. A). Administrative separation may be allowed to permit a service member to pursue educational opportunities or to accept public office; to alleviate hardship or dependency; to accommodate the demands of pregnancy or parenthood; to address religious concerns or conscientious objections; or to address physical and mental conditions that interfere with an assignment or the performance of duty.

Administrative separation may be initiated when a service member is found to have engaged in homosexual conduct. The National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, Nov. 30, 1993, 107 Stat. 1547, states,"The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." The courts have consistently upheld the congressional prerogative to discharge homosexuals from the military.

During the 1980s, the military discharged service members for homosexual orientation as well as homosexual conduct. In 1993, President BILL CLINTON attempted to change the military's policy of discharging gays and lesbians because of their sexual orientation. He struck a compromise with those who were opposed to changing the policy in the National Defense Authorization Act of 1994, which requires separation from service of individuals who voluntarily declare their homosexuality, but bars military personnel from inquiring into a service member's sexual orientation...

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