In a court-martial, the members or the military judge decide the sentence based on evidence and argument that the rules permit. A recurring question is whether a commander’s view that a particular punishment should be imposed can be placed before the sentencing authority. The short answer is no. A command endorsement of a specific punishment is not proper sentencing evidence, and inviting the sentencing authority to follow a commander’s wishes runs directly into the prohibition on unlawful command influence.
What sentencing evidence is supposed to cover
Sentencing in a court-martial is governed by Rule for Courts-Martial 1001. The presentencing procedure allows the prosecution to offer evidence in aggravation and allows the defense to offer matters in extenuation and mitigation. Evidence in aggravation includes the financial, social, psychological, and medical impact on a victim and evidence of significant adverse impact on the mission, discipline, or efficiency of the command that results directly and immediately from the offense. Matters in extenuation explain the circumstances surrounding the offense, and matters in mitigation present personal factors about the accused that lessen punishment, such as a record for efficiency, fidelity, and courage.
Notice what this framework is about. It is about the offense, its consequences, and the accused as a person. It is not a vehicle for opinions about what the sentence ought to be. Evidence in aggravation is subject to the Military Rules of Evidence, so a witness must testify under oath and be open to cross-examination, and the military judge must screen the evidence for unfair prejudice under Military Rule of Evidence 403.
Why a command endorsement of punishment is improper
A commander’s endorsement that the accused should receive a stiff sentence is opinion about the outcome, not factual information about the offense or the accused. It does not fit the categories of aggravation, extenuation, or mitigation. More importantly, it implicates the structural protection against unlawful command influence.
Article 37 of the Uniform Code of Military Justice prohibits a convening authority or any commanding officer from censuring, reprimanding, or admonishing a court-martial or its members, the military judge, or counsel with respect to the findings or sentence. The reason is plain. Court members are subordinate to commanders in the ordinary military hierarchy, and a known command preference about the sentence can pressure them to conform rather than to judge independently. Allowing a command endorsement of punishment into sentencing would import exactly the influence Article 37 forbids.
The rule against referencing command policy in argument
The point is reinforced in argument. RCM 1001 expressly prohibits referring to a convening authority or to command policy during sentencing argument. Counsel may not tell the members that the command wants a particular result or that command policy favors severity for this kind of offense. Such an argument tells the members that someone with power over their careers expects a certain sentence, which is the textbook mechanism of improper influence.
This is distinct from legitimate aggravation evidence about command impact. A witness may describe, under oath and subject to cross-examination, how the offense actually harmed the unit’s mission or discipline. That is factual evidence of consequence. What is barred is converting that into a message that the command endorses a specific punishment.
How the line is policed at trial and on appeal
A military judge serves as the gatekeeper. Proposed sentencing evidence is tested against the RCM 1001 categories and against the Military Rules of Evidence, including the MRE 403 balance of probative value against unfair prejudice. If the prosecution attempts to introduce a commander’s recommendation on punishment, the defense can object, and the judge can exclude it and, if needed, instruct the members to disregard any improper suggestion of command preference.
Unlawful command influence is treated as a serious defect. Where it appears, the burden shifts to the government to show that the proceeding was not tainted, and an uncorrected intrusion of command preference into sentencing can lead to relief on appeal. That appellate exposure is itself a strong reason that careful prosecutors and convening authorities keep command opinions about the sentence out of the courtroom.
The practical takeaway
A command endorsement of a specific punishment cannot properly be introduced during sentencing. It is not aggravation, extenuation, or mitigation under RCM 1001, it cannot be raised in sentencing argument, and it collides with the Article 37 ban on command influence over findings and sentence. Commanders influence the system in legitimate ways, by deciding whether to refer charges and by acting on the record after trial, but they do not get to tell the sentencing authority what sentence to impose. A service member who sees command preference creeping into a sentencing proceeding has a concrete basis to object at trial and to raise the issue on appeal.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.