Tuesday, June 3, 2014

Judge advocate can’t be of lower rank than accused officer

Lt Colonel Rahul Arora, was convicted and punished at court-martial for: 
[A] falsified official document. The second charge was that he remained absent from duty from April 11 to April 19 of 2004 and the third charge was that he behaved in a manner unbecoming of his position and character expected of him.
 There are several interesting comparisons to U. S. military law. 
On appeal the high court has ruled that a judge advocate, who is on the panel of a General Court Martial (GCM), cannot be of lower rank than the accused officer. It added that if it has to be so then reasoning has to be given.
 In the U. S. the Rules for Court-Martial also require that members of a court-martial panel be senior to the accused, except in extraordinary circumstances, circumstances that must be documented on the record in open court.  But there is no requirement that the military judge be senior.  Note: the U. S. military judge does not sit, deliberate, or vote with the members panel.  There is the option for trial by military judge alone as the decider.

By setting aside the conviction and dismissal:
The bench headed by justice Hemant Gupta upheld the Rule 40(2) of Army Rules, 1954, that “the members of a court-martial for the trial of an officer shall be of a rank not lower than that of the officer unless, in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of the public service) available. Such opinion shall be recorded in the convening order.”
The appellant’s initial sentence included a loss of part of his pension.  This is not a punishment available to the U. S. court-martial.  Up until some years ago there was the punishment of loss of numbers for a naval officer.  A loss of numbers lowered the person on the roster and delayed their possibility of promotion.

Another current U. S. practice is that a sentence once announced cannot be increased (it can be lowered through clemency).  The older Articles of War did provide for a similar situation to that of the appellant here --
The convening authority was of the opinion that punishment was lenient so GCM was again called and this time, he was awarded punishment of dismissal on May 17, 2005.

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