Middendorf v. Henry, 425 U.S. 25 (1976)

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

In February, 1973, plaintiffs{1} -- then enlisted members of the United States Marine Corps -- brought this class action in the United States District Court for the Central District of California challenging the authority of the military to try them at summary courts-martial without providing them with counsel. Five plaintiffs{2} had been charged with "unauthorized absences"{3} in violation of Art. 86, UCMJ, 10 U.S.C. § 886, convicted at summary courts-martial, and sentenced, inter alia, to periods of confinement ranging from 20 to 30 days at hard labor. The other three plaintiffs, two of whom were charged, inter alia, with unauthorized absence and one with assault, Art. 128, UCMJ, 10 U.S.C. § 928, had been ordered to stand trial at summary courts-martial which had not been convened. Those who were convicted had not been provided counsel -- those who were awaiting trial had been informed that counsel would not be provided. All convicted plaintiffs were informed prior to trial that they would not be afforded counsel and that they could refuse trial by summary court-martial if they so desired. In the event of such refusal, their cases would be referred to special courts-martial at which counsel would be provided. All plaintiffs consented in writing to proceed to trial by summary court-martial, without counsel.{4} Plaintiffs’ court-martial records were reviewed and approved{5} by the Staff Judge Advocate pursuant to Art. 65(c), UCMJ, 10 U.S.C. § 865(c). Plaintiffs did not file a petition for review with the Judge Advocate General of the Navy pursuant to Art. 69, UCMJ, 10 U.S.C. § 869.{6}

In the District Court, plaintiffs brought a class action seeking habeas corpus (release from confinement), an injunction against future confinement resulting from uncounseled summary court-martial convictions, and an order vacating the convictions of those previously convicted.

The District Court allowed the suit to proceed as a class action, expunged all of plaintiffs’ convictions, released all plaintiffs and all other members of their class{7} from confinement, and issued a worldwide injunction against summary courts-martial without counsel. Because of our disposition of this case on the merits, we have no occasion to reach the question of whether Fed.Rule Civ.Proc. 23, providing for class actions, is applicable to petitions for habeas corpus, see Harris v. Nelson, 394 U.S. 286 (1969), or whether the District Court properly determined that its remedial order was entitled to be enforced outside of the territorial limits of the district in which the court sat.

The Court of Appeals vacated the judgment of the District Court, and remanded the case for reconsideration in light of the Court of Appeals’ opinion in Daigle v. Warner, 490 F.2d 358 (CA9 1973). Daigle had held that there was no Sixth Amendment right to counsel in summary courts-martial, and likewise held that there was no absolute Fifth Amendment due process right to counsel in every case in which a military defendant might be imprisoned. However, citing Gagnon v. Scarpelli, 411 U.S. 778 (1973), it did hold that counsel was required where the

accused makes a request based on a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances.

Daigle made an exception from this general rule for cases in which counsel "is not reasonably available," in which instance it would not be required. 490 F.2d at 365. We granted certiorari. 419 U.S. 895 (1974).

I

The UCMJ provides four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art 15, UCMJ, 10 U.S.C. § 815. General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense.{8} General courts-martial are authorized to award any lawful sentence, including death. Art. 18, UCMJ, 10 U.S.C. § 818. Special courts-martial may award a bad-conduct discharge, up to six months’ confinement at hard labor, forfeiture of two-thirds pay per month for six months, and, in the case of an enlisted member, reduction to the lowest pay grade, Art.19, UCMJ, 10 U.S.C. § 819. Article 15 punishment, conducted personally by the accused’s commanding officer, is an administrative method of dealing with the most minor offenses. Parker v. Levy, 417 U.S. 733, 750 (1974).{9}

The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts-Martial 79a (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. § 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call.{10} MCM § 79d(1). The accused must consent to trial by summary court-martial; if he does not do so, trial may be ordered by special or general court-martial.

The maximum sentence elements which may be imposed by summary courts-martial are: one month’s confinement at hard labor; 45 days’ hard labor without confinement; two months’ restriction to specified limits; reduction to the lowest enlisted pay grade; and forfeiture of two-thirds pay for one month. Art. 20, UCMJ, 10 U.S.C. § 820.{11}

II

The question of whether an accused in a court-martial has a constitutional right to counsel has been much debated,{12} and never squarely resolved. See Reid v. Covert, 354 U.S. 1, 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 123 (1866), said that

the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment to those persons who were subject to indictment or presentment in the fifth.

In Ex parte Quirin, 317 U.S. 1, 40 (1942), it was said that

"cases arising in the land or naval forces" . . . are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth.

We find it unnecessary in this case to finally resolve the broader aspects of this question, since we conclude that, even were the Sixth Amendment to be held applicable to court-martial proceedings, the summary court-martial provided for in these cases was not a "criminal prosecution" within the meaning of that Amendment.{13}

This conclusion, of course, does not answer the ultimate question of whether the plaintiffs are entitled to counsel at a summary court-martial proceeding, but it does shift the frame of reference from the Sixth Amendment’s guarantee of counsel "[i]n all criminal prosecutions" to the Fifth Amendment’s prohibition against the deprivation of "life, liberty, or property, without due process of law."

Argersinger v. Hamlin, 407 U.S. 25 (172), held that the Sixth Amendment’s provision for the assistance of counsel extended to misdemeanor prosecutions in civilian courts if conviction would result in imprisonment. A summary court-martial may impose 30 days’ confinement at hard labor, which is doubtless the military equivalent of imprisonment. Yet the fact that the outcome of a proceeding may result in loss of liberty does not, by itself, even in civilian, life mean that the Sixth Amendment’s guarantee of counsel is applicable. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the respondent faced the prospect of being sent to prison as a result of the revocation of his probation, but we held that the revocation proceeding was nonetheless not a "criminal proceeding." We took pains in that case to observe:

[T]here are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.

In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole.

Id. at 788-789.

In re Gault, 387 U.S. 1 (1967), involved a proceeding in which a juvenile was threatened with confinement. The Court, although holding counsel was required, went on to say:

"We do not mean . . to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment."

Id. at 30.

The Court’s distinction between various civilian proceedings, and its conclusion that, notwithstanding the potential loss of liberty, neither juvenile hearings nor probation revocation hearings are "criminal proceedings," are equally relevant in assessing the role of the summary court-martial in the military.

The summary court-martial is, as noted above, one of four types of proceedings by which the military imposes discipline or punishment. If we were to remove the holding of Argersinger from its civilian context and apply it to require counsel before a summary court-martial proceeding simply because loss of liberty may result from such a proceeding, it would seem all but inescapable that counsel would likewise be required for the lowest level of military proceeding for dealing with the most minor offenses. For even the so-called Art. 15 "nonjudicial punishment," which may be imposed administratively by the commanding officer, may result in the imposition upon an enlisted man of "correctional custody" with hard labor for not more than 30 consecutive days.{14} 10 U.S.C. § 815(b).{15} But we think that the analysis made in cases such as Gagnon and Gault, as well as considerations peculiar to the military, counsel against such a mechanical application of Argersinger.

Admittedly Gagnon is distinguishable, in that there, the defendant had been earlier sentenced at the close of an orthodox criminal prosecution. But Gault is not so distinguishable: there, the juvenile faced possible initial confinement as a result of the proceeding in question, but the Court nevertheless based its conclusion that counsel was required on the Due Process Clause of the Fourteenth Amendment, rather than on any determination that the hearing was a "criminal prosecution" within the meaning of the Sixth Amendment.

It seems to us indisputably clear, therefore, that, even in a civilian context, the fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a "criminal prosecution" for purposes of the Sixth Amendment. Nor does the fact that confinement will be imposed in the first instance as a result of that proceeding make it a "criminal prosecution." When we consider in addition the fact that a summary court-martial occurs in the military community, rather than the civilian community, we believe that the considerations supporting the conclusion that it is not a "criminal prosecution" are at least as strong as those which were held dispositive in Gagnon and Gault.

The dissent points out, post at 56-57, n. 6, that, inGault, the Court gave weight to the rehabilitative purpose of the juvenile proceedings there involved, and that no such factor is present in summary courts-martial. Undoubtedly both Gault and Gagnon are factually distinguishable from the summary court-martial proceeding here. But together they surely stand for the proposition that, even in the civilian community, a proceeding which may result in deprivation of liberty is nonetheless not a "criminal proceeding" within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial. The summary court-martial proceeding here is likewise different from a traditional trial in many respects, the most important of which is that it occurs within the military community. This latter factor, under a long line of decisions of this Court, is every bit as significant, and every bit as entitled to be given controlling weight, as the fact in Gagnon that the defendant had been previously sentenced, or the fact in Gault that the proceeding had a rehabilitative purpose.

We have only recently noted the difference between the diverse civilian community and the much more tightly regimented military community in Parker v. Levy, 417 U.S. 733, 749 (1974). We said there that the UCMJ "cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community." Ibid. Much of the conduct proscribed by the military is not "criminal" conduct in the civilian sense of the word. Id. at 749-751.

Here, for example, most of the plaintiffs were charged solely with "unauthorized absence," an offense which has no common law counterpart and which carries little popular opprobrium. Conviction of such an offense would likely have no consequences for the accused beyond the immediate punishment meted out by the military, unlike conviction for such civilian misdemeanors as vagrancy or larceny which could carry a stamp of "bad character" with conviction.{16}

By the same token, the penalties which may be meted out in summary courts-martial are limited to one month’s confinement at hard labor, 45 days’ hard labor without confinement, or two months’ restriction to specified limits.{17} Sanctions which may be imposed affecting a property interest are limited to reduction in grade with attendant loss of pay, or forfeiture or detention of a portion of one month’s pay.

Finally, a summary court-martial is procedurally quite different from a criminal trial. In the first place, it is not an adversary proceeding. Yet the adversary nature of civilian criminal proceedings is one of the touchstones of the Sixth Amendment’s right to counsel{18} which we extended to petty offenses in Argersinger v. Hamlin, 407 U.S. 25 (1972).

Argersinger relied on Gideon v. Wainwright, 372 U.S. 335 (1963), where we held:

[I]n our adversary system of criminal justice, any person haled into court . . . cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. . . .

Id. at 344.

The function of the presiding officer is quite different from that of any participant in a civilian trial. He is guided by the admonition in 79a of the MCM:

The function of a summary court-martial is to exercise justice promptly for relatively minor offenses under a simple form of procedure. The summary court will thoroughly and impartially inquire into both sides of the matter, and will assure that the interests of both the Government and the accused are safeguarded.

The presiding officer is more specifically enjoined to attend to the interests of the accused by these provisions of the same paragraph:

The accused will be extended the right to cross-examine these witnesses. The summary court will aid the accused in the cross-examination, and, if the accused desires, will ask questions suggested by the accused. On behalf of the accused, the court will obtain the attendance of witnesses, administer the oath and examine them, and obtain such other evidence as may tend to disprove or negative guilt of the charges, explain the acts or omissions charged, show extenuating circumstances, or establish grounds for mitigation. Before determining the findings, he will explain to the accused his right to testify on the merits or to remain silent and will give the accused full opportunity to exercise his election.

MCM ¶ 79d(3).

We believe there are significant parallels between the Court’s description of probation and parole revocation proceedings in Gagnon and the summary court-martial, which parallels tend to distinguish both of these proceedings from the civilian misdemeanor prosecution upon which Argersinger focused. When we consider in addition that the court-martial proceeding takes place not in civilian society, as does the parole revocation proceeding, but in the military community with all of its distinctive qualities, we conclude that a summary court-martial is not a "criminal prosecution" for purposes of the Sixth Amendment.{19}

III

The Court of Appeals likewise concluded that there was no Sixth Amendment right to counsel in summary court-martial proceedings such as this, but applying the due process standards of the Fifth Amendment adopted a standard from Gagnon v. Scarpelli, 411 U.S. 778 (1973), which would have made the right to counsel depend upon the nature of the serviceman’s defense. We are unable to agree that the Court of Appeals properly applied Gagnon in this military context.

We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment.

However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

In making such an analysis, we must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S.Const., Art. I, § 8, that counsel should not be provided in summary courts-martial. As we held in Burns v. Wilson, 346 U.S. 137, 140 (1953):

[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress.

(Footnote omitted.)

The United States Court of Military Appeals has held that Argersinger is applicable to the military and requires counsel at summary courts-martial. United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973). Dealing with areas of law peculiar to the military branches, the Court of Military Appeals’ judgments are normally entitled to great deference. But the 2-to-1 decision, in which the majority itself was sharply divided in theory, does not reject the claim of military necessity. Judge Quinn was of the opinion that Argersinger’s expansion of the Sixth Amendment right to counsel was binding on military tribunals equally with civilian courts.{20} Alderman, supra at 300, 46 C.M.R. at 300. Judge Duncan, concurring in part, disagreed, reasoning that decisions such as Argersinger were not binding precedent if "there is demonstrated a military necessity demanding nonapplicability." Id. at 303, 46 C.M.R. at 303. He found no convincing evidence of military necessity which would preclude application of Argersinger. Chief Judge Darden, dissenting, disagreed with Judge Quinn, and pointed to that court’s decisions recognizing "the need for balancing the application of the constitutional protection against military needs." Id. at 307, 46 C.M.R. at 307. Taking issue as well with Judge Duncan, he stated his belief that the Court of Military Appeals "possesses no special competence to evaluate the effect of a particular procedure on morale and discipline and to require its implementation over and above the balance struck by Congress." Id. at 308, 46 C.M.R. at 308.

Given that only one member of the Court of Military Appeals took issue with the claim of military necessity, and taking the latter of Chief Judge Darden’s statements as applying with at least equal force to the Members of this Court, we are left with Congress’ previous determination that counsel is not required. We thus need only decide whether the factors militating in favor of counsel at summary courts-martial are so extraordinarily weighty as to overcome the balance struck by Congress.{21}

We first consider the effect of providing counsel at summary courts-martial. As we observed in Gagnon v. Scarpelli, supra at 787:

The introduction of counsel into a . . . proceeding will alter significantly the nature of the proceeding. If counsel is provided for the [accused], the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views.

In short, presence of counsel will turn a brief, informal hearing which may be quickly convened and rapidly concluded into an attenuated proceeding which consumes the resources of the military to a degree which Congress could properly have felt to be beyond what is warranted by the relative insignificance of the offenses being tried. Such a lengthy proceeding is a particular burden to the Armed Forces because virtually all the participants, including the defendant and his counsel, are members of the military whose time may be better spent than in possibly protracted disputes over the imposition of discipline.{22}

As we observed in United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955):

[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. . . . [M]ilitary tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.

However, the Court of Appeals did not find counsel necessary in all proceedings but only, pursuant to Daigle v Warner, where the accused makes

a timely and colorable claim (1) that he has a defense, or (2) that there are mitigating circumstances, and the assistance of counsel is necessary in order adequately to present the defense or mitigating circumstances.

490 F.2d at 365.

But if the accused has such a claim, if he feels that, in order to properly air his views and vindicate his rights, a formal, counseled proceeding is necessary he may simply refuse trial by summary court-martial and proceed to trial by special or general court-martial at which he may have counsel.{23} Thus, he stands in a considerably more favorable position than the probationer in Gagnon who, though subject to the possibility of longer periods of incarceration, had no such absolute right to counsel.{24}

It is true that, by exercising this option the accused subjects himself to greater possible penalties imposed in the special court-martial proceeding. However, we do not find that possible detriment to be constitutionally decisive. We have frequently approved the much more difficult decision, daily faced by civilian criminal defendants, to plead guilty to a lesser included offense. E.g., Brady v. United States, 397 U.S. 742, 749-750 (1970). In such a case, the defendant gives up not only his right to counsel but his right to any trial at all. Furthermore, if he elects to exercise his right to trial he stands to be convicted of a more serious offense which will likely bear increased penalties.{25}

Such choices are a necessary part of the criminal justice system:

The criminal process, like the rest of the legal system, is replete with situations requiring "the making of difficult judgments" as to which course to follow. McMann v. Richardson, 397 U.S. at 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.

McGautha v. California, 402 U.S. 183, 213 (1971).

We therefore agree with the defendants that neither the Sixth nor the Fifth Amendment to the United States Constitution empowers us to overturn the congressional determination that counsel is not required in summary courts-martial. The judgment of the Court of Appeals is therefore

Reversed.

MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.

MR. JUSTICE STEWART dissents, believing that the Due Process Clause of the Fifth Amendment requires that a defendant be accorded the assistance of counsel in a summary court-martial proceeding.

* Together with No. 74-5176, Henry et al. v. Middendorf, Secretary of the Navy, et al., also on certiorari to the same court.

1. Both parties have petitioned from the judgment of the court below. For simplicity, we refer to the servicemen as "plaintiffs" and the federal parties as "defendants."

2. Including two who were not among the original six plaintiffs but later intervened.

3. One of these plaintiffs was also charged with several other offenses, including assault on a superior noncommissioned officer, Art. 91, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891.

4. Plaintiffs were so informed and consented pursuant to the terms of (Navy) Staff Judge Advocate Memorandum 10-72 which was in force at El Toro Marine Corps Air Station where all plaintiffs were stationed. Record 18.

For example, as to plaintiff Henry, the following entry appears in the record of his court-martial:

The accused was advised that, if tried by Summary Court-Martial, he would not be represented by appointed military counsel; that, instead, that Summary Court-Martial Officer would thoroughly and impartially inquire into both sides of the matter, and would assure that the interests of both the Government and the accused are safeguarded; that, if his case were that referred to a Special Courts-Martial [sic], he would be provided counsel. In addition, the accused, after being informed of the maximum punishment imposable in his case both by a Summary Courts-Martial [sic] and Special Courts-Martial [sic], he would be foregoing his statutory rights to counsel at a Special Courts-Martials [sic].

Id. at 114.

5. At least one plaintiff, McLean, was found not guilty as to certain charges at the summary court-martial. Upon review at the supervisory authority level, guilty findings on certain other charges upon which he had been convicted were reversed.

6. These plaintiffs arguably failed to exhaust their military remedies. However, the defendants urge that exhaustion not be required here because the practice of the Judge Advocate General has been to defer consideration of any petitions on the right to counsel issue pending the completion of litigation on this issue in the federal courts.

Since the exhaustion requirement is designed to protect the military from undue interference by the federal courts, Schlesinger v. Councilman, 420 U.S. 738, 758 (1975), the military can waive that requirement where it feels that review in the federal courts is necessary. See Sosna v. Iowa, 419 U.S. 393, 396-397, n. 3 (1975).

7. The class included all members of the Navy and Marine Corp who "were or are now or will be required after (the date of the order) to stand trial by summary courts-martial" and who had not been afforded counsel. 357 F.Supp. 495, 499 (1973).

8. These features are mandatory for general courts-martial. Special courts-martial may be, but seldom are, convened without a military judge; in such cases, the senior member of the court presides. Appointed defense counsel at a special court-martial is required to be an attorney, unless an attorney cannot be obtained because of physical conditions or military exigencies. In addition to the appointed counsel at a general or special court-martial, the accused may retain civilian counsel at his own expense, or he may be represented by a military lawyer of his own selection, if such lawyer is "reasonably available." Arts. 16, 25, 27(b), 27(c), 38(b), UCMJ, 10 U.S.C. §§ 816, 825, 827(b), 827(c), 838(b).

9. The maximum punishments which may be imposed under Art. 15 are: 30 days’ correctional custody; 60 days’ restriction to specified limits; 45 days’ extra duties; forfeiture of one-half of one month’s pay per month for two months; detention of one-half of one month’s pay per month for three months; reduction in grade. Enlisted members attached to or embarked on a vessel may be sentenced to three days’ confinement on bread and water or diminished rations. Correctional custody is not necessarily the same as confinement. It is intended to be served in a way which allows normal performance of duty, together with intensive counseling. Persons serving correctional custody, however, may be confined. Art. 15(b). See Department of the Navy, SECNAV Inst. 1640.9, Corrections Manual, c. 7, June 1972; Department of the Army, Pamphlet No. 27-4, Correctional Custody, 1 June 1972; Department of the Air Force, Reg. 125-35, Correctional Custody, 7 Oct.1970.

10. Additionally, the officer must inform the accused of his right to remain silent and allow him to cross-examine witnesses or have the summary court officer cross-examine them for him. The accused may testify and present evidence in his own behalf. If the accused is found guilty he may make a statement, sworn or unsworn, in extenuation or mitigation. MCM 79d.

The record of the trial is then reviewed by the convening officer, Art. 60, UCMJ, 10 U.S.C. § 860, and thereafter by a judge advocate. Art. 65(c), UCMJ, 10. U.S.C. § 865(c).

11. Not all these sentence elements may be imposed in one sentence, and enlisted persons above the fourth enlisted pay grade may not be sentenced to confinement or hard labor by summary courts-martial, or reduced except to the next inferior grade. MCM ¶¶ 16b and 127c.

12. Compare Wiener, Courts-Martial and the Bill of Rights: The Original Practice, 72 Harv.L.Rev. 1 (1958), which finds that there is no historic precedent for application of the right to counsel to courts-martial, with Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv.L.Rev. 293 (1957), which concludes that the original intent of the Framers was to apply the Sixth Amendment right to counsel to the military. Compare Daigle v. Warner, 490 F.2d 358 (CA9 1973), with Betonie v. Sizemore, 496 F.2d 1001 (CA5 1974).

13. Since under our Brother MARSHALL’s analysis the Sixth Amendment applies to the military, it would appear that not only the right to counsel but the right to jury trial, which is likewise guaranteed by that Amendment, would come with it. While, under Duncan v. Louisiana, 391 U.S. 145 (1968), such a right would presumably not obtain in cases of summary courts-martial because of the short periods of confinement which they may impose, it would surely apply to special and general courts-martial, which are empowered to impose sentences far in excess of those held in Duncan to be the maximum which could be imposed without a jury. Whatever may be the merits of "selective incorporation" under the Fourteenth Amendment, the Sixth Amendment makes absolutely no distinction between the right to jury trial and the right to counsel.

14. Chief Judge Darden, dissenting in United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973), made a similar observation:

While it may be argued that counsel should be required for summary courts-martial, since they constitute criminal convictions, and not for Article 15 proceedings, as they are nonjudicial and corrective in nature, the effect of confinement under the former and correctional custody under the latter is difficult to distinguish. See In re Gault, 387 U.S. 1 (1967). Consequently, I would have difficulty in sustaining the position that, while counsel must be provided before summary courts-martial, they may be dispensed with in Article 15 proceedings that may result in correctional custody.

Id. at 308 n. 1, 46 C.M.R. at 308 n. 1.

15. This section provides that a commanding officer (of the grade of major or lieutenant commander or above) may impose, inter alia, not more than 30 consecutive days of "correctional custody," § 815(b)(2)(H)(ii), during duty or non-duty hours and may include "hard labor." § 815(b).

16. Our Brother MARSHALL argues, post at 57-58, and nn. 8 and 9, that the military considers a summary court-martial conviction as "criminal." But Admiral Hearn, the Navy Judge Advocate General, did not describe the convictions as "criminal"; he did state that a commanding officer’s decision to utilize a summary court-martial, as opposed to an Art. 15 administrative punishment, might turn on his judgment that it was "in the best interests of the service to begin to put on record [the] infractions" of a serviceman who had accumulated several Art. 15 punishments for the same type of offense. Joint Hearings on Military Justice before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Committee on Armed Services, 89th Cong., 2d Sess., 34 (1966) (1966 Hearings). The Army Assistant Judge Advocate General then pointed out that one advantage a summary court-martial held for the accused, over an Art. 15 proceeding, was that the latter was adjudged by the company commander, the "nominal accuser," whereas "the summary court knows nothing about the case at all." Ibid.

The dissent also refers us to the Army’s acknowledgment of "collateral consequences" flowing from a summary court-martial conviction. Post at 58-59. But that which is quoted in the text is a portion of the Army’s written response in 1962 to the following question: "What are the effects on a serviceman’s career of conviction by summary or special court-martial?" The disjunctive in the question makes it impossible to tell whether the portion quoted is addressed to special or summary court-martial, or both.

Finally, whatever conclusions may have been drawn by the author of the article in 39 Va.L.Rev. 319 cited by the dissent, post at 59 n. 11, as to the "impact of a summary court-martial conviction," are of little aid to present considerations. The article was written at the inception of the UCMJ, then in operation for a year, and discusses sentencing in terms of the interaction between the Code and the corresponding 1951 Manual for Courts-Martial. Both, of course, have undergone substantial revision in the intervening 23 years. It should not be lightly assumed that the author’s conclusions drawn at that time are valid with respect to the present UCMJ and MCM, or the manner in which they are currently implemented by the various services.

17. Our Brother MARSHALL notes, post at 57, that technically even the most serious noncapital UCMJ offenses may be tried before a summary court-martial. But that is of little practical effect upon the serviceman accused, given the ceilings on punishments imposed by Art. 20. It would seem inconceivable that a serious charge such as striking a commissioned officer, Art. 90(1), UCMJ, 10 U.S.C. § 890(1) -- for which a general court-martial could impose a 10-year sentence -- would ever be prosecuted before a court which could impose maximum confinement at hard labor for only one month. But if that occurred, an accused so charged before a summary court-martial would no doubt be delighted at his good fortune. The fact is, as the dissent notes, post at 57-58, n. 8, that only 14% of the summary courts-martial conducted by the Navy are for "nonmilitary" offenses. We do not regard this figure as "substantial" in the sense that the dissent apparently does.

18. As we held in Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938):

The Sixth Amendment . . . embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.

19. No one of the factors discussed above -- the nature of the proceedings, of the offenses, and of the punishments -- is necessarily dispositive. Rather, all three combine with the distinctive nature of military life and discipline to lead to our conclusion. The dissent, by discussing these factors independently and attempting to demonstrate that each factor cannot stand by its own force, does not come to grips with this analysis.

20. Judge Quinn’s broad view of the applicability of the Bill of Rights to members of the military is well established. Concurring in United States v. Culp, 14 U.S.C.M.A.199, 216-217, 33 C.M.R. 411, 428-429 (1963), he stated that its protections run to the Armed Forces "`unless excluded directly or by necessary implication, by the provisions of the Constitution itself.’" See also United States v. Jacoby, 11 U.S.C.M.A. 428, 530-431, 29 C.M.R. 244,246-247 (1960).

21. Prior to the enactment of the UCMJ into positive law in 1956, it was suggested that summary courts-martial be abolished. Congress rejected this suggestion and instead provided that no person could be tried by summary court-martial if he objected thereto (unless he had previously refused Art. 15 punishment). 70A Stat. 43. Prior to the 1968 amendments to the Code, the elimination of summary courts-martial was again proposed and rejected. E.g., Subcommittee on Constitutional Rights of Senate Committee on the Judiciary, 88th Cong., 1st Sess., Summary -- Report of Hearings on Constitutional Rights of Military Personnel, 34-36 (1963). Instead, the Art. 15 exception to the right to refuse was eliminated as a compromise between those favoring retention of summary courts-martial and those who would abolish them. S.Rep. No. 1601, 90th Cong., 2d Sess., 6 (1968). It is thus apparent that Congress has considered the matter in some depth.

22. The one-month period of confinement which may be imposed by a summary court-martial stands in marked contrast with the period of confinement for a minimum of three years which could have been imposed in a juvenile proceeding in In re Gault, 387 U.S. 1, 37 n. 60 (1967).

23. Article 20 UCMJ, 10 U.S.C. § 820, provides in pertinent part that

[n]o person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. . . .

Article 38(b) UCMJ, 10 U.S.C. § 838(b), provides:

The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, or by military counsel of his own selection if reasonably available, or by the defense counsel detailed under section 827 of this title.

24. The dissent criticizes our failure to discuss Gault, supra, as to this point. Gault is inapposite. Contrary to the assertion of the dissent, post at 69 n. 22, Gault, had he been tried in the adult courts, would have been subject to a maximum sentence of two months, rather than the six years he actually received. 387 U.S. at 29. We cannot speculate what the result in Gault would have been if there had been a waiver available and if the adult sentence had been greater rather than less than the juvenile.

25. It by no means follows, as the dissent suggests, post at 71-72, that the same result would obtain with such a two-tier system in the civilian context, where Gideon v. Wainwright, 372 U.S. 335 (1963), and Argersinger v. Hamlin, 407 U.S. 25 (1972), have held the Sixth Amendment’s right to counsel applicable. In such a context, the reasoning of United States v. Jackson, 390 U.S. 570 (1968), that one cannot be penalized for exercising a constitutional right would come into play. Here, however, we have held that there is no constitutional right to counsel at summary court-martial, so the issue of being penalized for the exercise of such a right is not presented.