Court-Martial and Family: Impact on Spouses, Children, and Dependents

A court-martial adjudicates only the service member’s case, but the sentence reaches the household through pay and status. Confinement over six months, or a shorter term with a punitive discharge, triggers automatic forfeiture of pay during confinement (all pay and allowances at a general court-martial, two-thirds of pay at a special court-martial), starting 14 days after sentencing; the convening authority may waive it for up to six months and pay the money to the dependents (Article 58b). Dependent benefits tied to the sponsor’s active-duty status end when a punitive discharge is executed after appellate review. Where the member is separated or forfeits all pay for a dependent-abuse offense, the abused spouse and children may receive transitional compensation for 12 to 36 months (10 U.S.C. § 1059).

Family members are not parties

Spouses and children do not litigate the court-martial. A family member may appear as a witness, and a family member who is a crime victim has the separate rights described in victims’ rights and the Special Victims’ Counsel program, including the right to be reasonably heard at sentencing. The family’s exposure otherwise flows from two things: the member’s pay and the member’s status.

Pay: automatic forfeitures and the dependent waiver

When they apply. A sentence that includes confinement for more than six months or death, or confinement for six months or less with a dishonorable or bad-conduct discharge or dismissal, results in forfeiture of pay during confinement or parole: “all pay and allowances” at a general court-martial and “two-thirds of all pay” at a special court-martial (Article 58b(a)).

When they start. They take effect on the date set by Article 57: for general and special courts-martial, 14 days after the sentence is adjudged (Article 57(a)(1)(A)). Under the same article, the convening authority may defer forfeitures on the accused’s application until entry of judgment (Article 57(b)(1)).

The waiver for dependents. “In a case involving an accused who has dependents, the convening authority or other person acting under section 860a or 860b of this title (article 60a or 60b) may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months”, and the amount “shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused” (Article 58b(b)). The money goes to the family, not the confined member.

If the sentence falls. If the sentence is set aside or disapproved, or as finally approved no longer includes a qualifying punishment, the member is paid what was forfeited (Article 58b(c)).

Health care. Military medical and dental care for dependents under 10 U.S.C. § 1076(a) runs to dependents of a member “on active duty for a period of more than 30 days”, among other listed categories. Eligibility for other dependent privileges, such as ID cards, installation access, commissary and exchange use, and on-base housing, is set by Defense Department and service rules, which a family can check with the installation’s legal assistance office.

When a punitive discharge takes effect. A dismissal or a dishonorable or bad-conduct discharge “may be executed, in accordance with service regulations, after completion of appellate review” (Article 57(a)(5)). Until then the member remains in service, though possibly confined and without pay under Article 58b.

Transitional health care. The Transitional Assistance Management Program in 10 U.S.C. § 1145 gives 180 days of coverage to members, and their dependents, separated in listed ways, including a member “involuntarily separated from active duty.” For a regular enlisted member, that phrase means being denied reenlistment or “involuntarily discharged under other than adverse conditions, as characterized by the Secretary concerned” (10 U.S.C. § 1141). Read together, those definitions do not describe a punitive discharge, so whether any transitional coverage follows a court-martial discharge depends on the service’s determination.

When the victim is a dependent: transitional compensation

Who qualifies. 10 U.S.C. § 1059 authorizes monthly payments to dependents or former dependents of a member on active duty for more than 30 days who:

is convicted of a dependent-abuse offense and, under the court-martial sentence, is separated from active duty or forfeits all pay and allowances;
is administratively separated where the basis includes a dependent-abuse offense; or
is convicted of a dependent-abuse offense in a federal or state court and is separated, by court-martial or administratively, for another offense (§ 1059(b)).

A dependent-abuse offense is conduct while on active duty that “involves abuse of the spouse or a dependent child of the member” and is a criminal offense specified in Defense Department regulations (§ 1059(c)).

How much and for how long. Payments last “not less than 12 months and not more than 36 months, as established in policies prescribed by the Secretary concerned” (§ 1059(e)(2)). The rate for a spouse or former spouse is the dependency and indemnity compensation rate under 38 U.S.C. § 1311(a)(1), increased for each dependent child in the household by the § 1311(b) amount (§ 1059(f)).

Conditions. A former spouse who remarries loses the payment as of the marriage, and it is not renewed if that marriage ends; payments stop if the former member comes to live in the same household as the recipient (§ 1059). Recipients may use commissary and exchange stores while receiving payments (§ 1059(j)).

Protective orders that may be part of the same situation are covered in military protective orders and restraining orders, and the offense itself in domestic violence prosecution under the UCMJ.

Custody, divorce, and support

A court-martial does not decide custody, divorce, or child support; those belong to state courts under state law. A service member who is a party to a civil case can apply for a stay of at least 90 days under the Servicemembers Civil Relief Act if the application includes a statement of how current military duty affects the ability to appear and a commanding officer’s statement that duty prevents appearance and leave is not authorized; the court may also stay the case on its own motion (50 U.S.C. § 3932(b)). Applying for the stay is not an appearance for jurisdictional purposes and waives no defense (§ 3932(c)).

Retired pay and former spouses

Under the Uniformed Services Former Spouses’ Protection Act, a state court may treat “disposable retired pay”, defined as “the total monthly retired pay to which a member is entitled” less listed amounts, as property of the member and spouse (10 U.S.C. § 1408(a)(4)(A), (c)). The division depends on retired pay the member is entitled to receive. An unremarried former spouse married to the member for at least 20 years during at least 20 years of creditable service, and without employer-sponsored health coverage, is a “dependent” for military health care purposes. A former spouse whose 20-year marriage overlapped at least 15 but fewer than 20 years of that service also qualifies: without a stated end date if the divorce decree was final before April 1, 1985, and only for one year after a decree final on or after that date (10 U.S.C. § 1072(2)(F)-(H)). Whether a particular court-martial outcome leaves any retired pay to divide is a question about that member’s service and sentence.

One sentence, four effects on the family (hypothetical)

An enlisted member with a spouse and one child is convicted at a general court-martial and sentenced to 12 months of confinement and a bad-conduct discharge, for an offense that is not dependent abuse.

Day 14 after sentencing. Automatic forfeiture of all pay and allowances begins (Articles 57(a)(1), 58b(a)).
Waiver. The convening authority may waive forfeitures for up to six months and direct the money to the spouse and child (Article 58b(b)).
Appeal pending. The discharge is not executed until appellate review is complete (Article 57(a)(5)).
After execution. Dependent eligibility tied to the sponsor’s active-duty status ends, and the § 1141 definition does not describe this discharge as an involuntary separation “under other than adverse conditions”.

If the offense had been abuse of the spouse or child, the family could also qualify for transitional compensation under § 1059.

Sources

This article is general information about military law, not legal advice for any individual case.