Courts-Martial

Guaranteed by the Fifth and Sixth Amendments to the United States Constitution, the right to counsel is arguably the most important guarantee in the Bill of Rights because it is through counsel that all other rights are protected. It is the attorney who preserves the rights of their clients, gives confidential advice, and who zealously defends their cause at trial. The greatest protection to someone suspected of misconduct is a great attorney.  

The skilled and experienced attorneys at MJA have defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you or a loved one are facing court-martial or other adverse action, contact one of our military defense lawyers today for a free consultation.

Fifth Amendment Right to Counsel

The Fifth Amendment to the United States Constitution guarantees that no suspect shall be compelled in any criminal case to be a witness against himself. The United States Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to remain silent and the right to an attorney during pretrial questioning.

Given the inherently compelling nature of a police interrogation, the law requires law enforcement officers to inform a suspect of his right to consult with an attorney and to have an attorney with him during questioning before beginning questioning.

To invoke the right to counsel, a suspect must state his desire to have an attorney present “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994). Police must terminate the interview if the suspect’s request clearly communicates his desire for counsel. However, “if the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-62.

Once a suspect has invoked his right to have counsel present during custodial interrogation, a suspect does not waive that right simply by responding to further police-initiated questioning. Rather, once a suspect has expressed his desire to deal with the police only through counsel, he cannot be further questioned by police until an attorney has been made available to him unless the suspect himself initiates further communication, exchanges, or conversations with the police.

Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” While the Fifth Amendment creates a right to counsel during pretrial questioning, the Sixth Amendment guarantees an accused the right to the effective assistance of counsel during criminal proceedings.

The Sixth Amendment not only guarantees the effective assistance of counsel at trial but also guarantees an accused the right to choose who to hire as their attorney. This is where civilian defense attorneys come in. In the military, a service member accused of misconduct has the absolute right to be defended by detailed military counsel, military counsel of choice if such counsel is reasonably available and, at his own expense, civilian counsel of his choice.

MJA often gets calls from service members who are not satisfied with their military defense and want to hire civilian counsel to represent them at their administrative separation board or court-martial. Even if military counsel provides “adequate” representation, if it is not the accused’s choice of counsel and if he is unfairly prevented from being represented by the attorney of his choice, then his Sixth Amendment right has been violated.

Notably, the Sixth Amendment right to counsel is offense-specific and only attaches once charges have been brought. In the military, the Sixth Amendment right to counsel does not attach until preferral of charges.  

Evidence Obtained in Violation of Right to Counsel Inadmissible

The Military Rules of Evidence render inadmissible any statements obtained in violation of an accused’s Fifth and Sixth Amendment rights to counsel.

M.R.E. 305(c)(2), which applies to the Fifth Amendment right to counsel, provides that “If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.”

M.R.E. 305(c)(3) applies to the Sixth Amendment right to counsel and states: “If an accused against whom charges have been preferred is interrogated on matters concerning the preferred charges by anyone acting in a law enforcement capacity, or the agent of such a person, and the accused requests counsel, or if the accused has appointed or retained counsel, any statement made in the interrogation, or evidence derived from the interrogation, is inadmissible unless counsel was present for the interrogation.”

In order for the statements to be ruled inadmissible, the accused’s attorney must be able to identify the right to counsel violations and must typically file a motion to exclude.  

Requesting an Attorney Cannot be Held Against You

Service members under investigation often make statements to law enforcement because they are concerned about the optics of how it will look if they invoke their right to remain silent or request to speak to an attorney. This is usually the wrong decision.

The Military Rules of Evidence prohibit the government from using an accused’s invocation of their rights against them. In other words, the prosecution cannot comment at trial on the fact that an accused invoked his right to remain silent, refused to answer certain questions from law enforcement, or requested to speak with an attorney.

This right to codified in M.R.E. 301(f)(2) which provides: “The fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated, is not admissible against the accused.”

To be safe, a service member who is under investigation should always ask to speak with counsel before making any statement to law enforcement. That request for co

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

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The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a speedy and public trial. In the military, the Sixth Amendment speedy trial protections are triggered upon preferral of charges or the imposition of pretrial restraint (e.g. confinement). While an accused will often allow pretrial delay in order to fully prepare for trial, the right to a speedy trial is as foundational as any other Sixth Amendment right.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.

Historical Background

The right to a speedy trial goes back to the very beginning of English law and even before. The first formal codification of the right appears to have been in the Magna Carta, signed by King John in 1215, where it was written: “We will sell to no man, we will not deny or defer to any man either justice or right.”

Hundreds of years later, this concept was articulated more simply by Sir William Gladstone who declared that “justice delayed is justice denied.” The right to a speedy trial recognizes the profound injustice and needless suffering—emotional, financial, mental, reputational, etc—that can occur to those involved in the criminal justice system when a legal matter is unnecessarily delayed and not swiftly resolved.

Applicable Authority

Due to these concerns, the Framers of the Constitution enshrined the right to a speedy trial in the Bill of Rights. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a speedy and public trial. In the military, the Sixth Amendment speedy trial protections are triggered upon preferral of charges or the imposition of pretrial restraint (e.g. confinement).

In addition to the Sixth Amendment, the UCMJ and Rules for Court Martial (R.C.M.) also grant an accused the right to a speedy trial. Under Article 10, UCMJ, 10 U.S.C. § 810 (2012), once a service member is placed in pretrial confinement the Government is required to exercise “reasonable diligence” in bringing the accused to trial.  United States v.

Further, R.C.M. 707(a) provides that “[t]he accused shall be brought to trial within 120 days” of the imposition of restraint under R.C.M. 304(a)(2)-(4). For purposes of R.C.M. 707, an “accused is brought to trial . . . at the time of arraignment.” R.C.M. 707(b)(1). The speedy trial clock under R.C.M. 707 is reset if the accused is released from pretrial restraint for a “significant period” and starts again when charges are re-preferred, when pretrial restraint is reimposed, or the date the service member enters active duty

Factors to Determine a Speedy Trial Violation

Military appellate courts review four factors to determine if there is a Sixth Amendment speedy trial violation: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s demand for a speedy trial; and (4) the prejudice to the accused).   

The length of the delay. A delay must be “facially unreasonable” to trigger a full due process analysis. The United States Court of Appeals for the Armed Forces (C.A.A.F). has found that a pretrial confinement period of 117 days triggered the full analysis but that periods as long as 350 days pretrial confinement did not rise to the level of a Sixth Amendment violation.

The reasons for the delay. Whether a delay is unreasonable is determined not just on the length of the delay but perhaps even more so on the reason for the delay. The CAAF has found that a “prosecution strategy” which requires coordinating the testimony of obtaining immunity for multiple co-conspirators can be a justification for even a lengthy delay.

The accused’s demand for a speedy trial. Service members pending court-martial often have strategic reasons to not demand a speedy trial. Those who do demand speedy trial will meet this factor on appellate review.

The prejudice to the accused. A service member who is denied a speedy trial either pretrial or on appeal can suffer many forms of prejudice including an oppressive incarceration, increased anxiety and concerns, and limitation of potential defenses if a case is reversed on appeal. Courts consider the latter injury to be the most serious.

A service member who can prove a speedy trial violation can be provided relief on appeal, including the possibility of dismissal with prejudice in the most egregious of cases.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

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Criminal defendants in the United States are presumed to be innocent under the law. While an accused is never required to prove his or her innocence, the Constitution does guarantee them the right to present a defense if they so choose. This includes the right to have notice of the charges and evidence against them, call witnesses favorable to their defense, confront witnesses through cross-examination, and testify on their own behalf.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.

Right to Notice

The most basic requirement to presenting a defense is the right to be placed on notice of the charges you. In order to adequately prepare a defense, an accused must first know what they have been charged with and what the government is required to prove for a finding of guilt. In the military, an accused is notified of the charges against them after being served with a preferred or referred charge sheet.   

Sometimes, however, a charge sheet is not enough.

When greater specificity is required to defend against a charge, a service member can file a bill of particulars under Rule for Courts-Martial (RCM) 906(b)(6). The purpose of a bill of particulars is “to inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification itself is too vague and indefinite for such purposes.” Id.

A bill of particulars can be used to determine what the government believes happened, which the defense can then use to prepare for trial or file a motion to dismiss any charge that is multiplicious with another.

Right to Equal Access to Evidence and Witnesses

After being informed of the charges, an accused next has the right to review the evidence against him. Article 46, UCMJ, provides the trial counsel, defense counsel, and the court-martial with the “equal opportunity to obtain witnesses and other evidence in accordance with” in accordance with the Rules for Court-Martial.

R.C.M. 701 guarantees each party the “equal opportunity to interview witnesses and inspect evidence.” The rule further provides that the defense may inspect “[a]ny books, papers, documents, photographs, tangible objects, . . . or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). 

The purpose of these rules is “aid the preparation of the defense and enhance the orderly administration of military justice.” Military courts have held that pretrial discovery and disclosures issues should be evaluated in light of the rule’s “liberal mandate.”

Right to Confrontation

The Confrontation Clause of the Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him. The right to confrontation generally has three components: (1) that the accused have an opportunity to cross-examine the witness; (2) that the witness’s testimony be under oath; and (3) that the jury be able to observe the witness’s demeanor.

At the heart of the right to confrontation is the requirement that any testimony presented to a jury be subject to cross-examination. The ultimate goal of cross-examination is to test the reliability of testimonial evidence, which is notoriously unreliable. A witnesses’ testimony may be impacted by a personal bias, limitations on memory, physical or environmental factors, or improper suggestion.

In the 1992 hit movie “My Cousin Vinny”, Joe Pesci—and lawyer from New York with no trial experience—finds himself defending a murder case in rural Alabama. After finally getting comfortable in the courtroom, Vinny conducts three masterful cross examinations of eyewitnesses who testified they had seen Vinny’s clients flee the scene of the crime.

During his cross, Vinny gets Mrs. Riley (an elderly lady) to state that she couldn’t see well with out-of-date prescription glasses, has Ernie Crane (a neighbor) concede that he could not see the defendants clearly through dirty window screens and trees, and has Sam Tipton admit that he was mistaken on how long the defendants were in the store while cooking his non-magical grits.

While the right to cross-examination generally requires that the witness appear in person before the jury, child witnesses may be exempted from face-to-face interaction with the accused in certain circumstances and where other accommodations have been made for the jury to remotely observe their testimony.

Right to Testify

In addition to the rights listed above, an accused service member always has the right to testify in their own defense. While the decision of whether or not to testify is ultimately up to the accused, a defendant should only testify after extensive consultation with their attorney. Choosing to testify can result in the government presenting additional evidence or the accused being impeached (and made to look like a liar) if they made prior statements to the contrary.  

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

The post Fundamental: The Right to Present a Defense appeared first on Military Justice Attorneys.

The right to trial by jury is the cornerstone of the American system of justice. James Madison, one of the major contributors to the Constitution, stated that “Trial by jury is essential to secure the liberty of the people as any one of the pre-existent rights of nature.” The belief was widely held by the Framers of the Constitution and ultimately enshrined in the Bill of Rights.

While courts-martial are not subject to the jury trial requirements of the Sixth Amendment, military defendants do have the right to be tried by a fair and impartial panel under Article 25, Uniform Code of Military Justice (UCMJ).  

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ. If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.

Eligibility and Selection of Members

Jury members in the military are referred to as “member” and the jury is called a “panel.” Article 25, UCMJ, details who may serve as members on a court-martial. The list includes commissioned officers, warrant officers, and, when specifically requested by the accused, enlisted members if the accused is also an enlisted member. Generally, members should not be junior in rank to the defendant.

In the military justice system, panel members are chosen by the convening authority—the same individual who also decides whether to bring criminal charges forward to trial. Under Article 25, the convening authority is required to detail as members only those individuals who, in his or her opinion, are “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Notably, gender is not a selection factor under Article 25, UCMJ, and selection on the basis of gender is generally prohibited.

While a military defendant has an absolute right to a fair and impartial panel, courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community.

Peremptory Challenges and Challenges for Cause

RCM 912(f)(1)(N) requires that a court-martial member be excused for cause whenever it appears that the member should not sit as member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality. A lack of impartiality can result from either implied or actual bias.

Actual bias is defined as bias in fact. Actual bias exists when there is evidence that the potential member will not act impartially and where the person possesses a “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.”

For example, courts have found that actual bias exists if a potential panel member holds an inelastic attitude toward the appropriate punishment to adjudge if the accused was convicted. A mere predisposition or inclination to give a certain type of punishment is not enough to disqualify a member. Rather, the evidence must show that the member’s attitude is of such a nature that he will not yield to the evidence presented or the judge’s instructions.

In contrast, implied bias challenges stem from the historic concerns about the potential for command influence in courts-martial. To determine whether implied bias exists, courts try to determine whether the public will perceive that the accused received something less than a court of fair, impartial members. This determination is based on the totality of the circumstances.

During jury selection, the parties may raise an unlimited number of challenges for cause. However, each side is only entitled to one peremptory challenge.

Authority of Members

One of the most unique and interesting facets of the military justice system is that panel members have the opportunity to ask questions during the court-martial and even obtain other witnesses and evidence under Article 46, UCMJ.

RCM 921(b) further gives members the chance to request that the court-martial be reopened, and that additional evidence be introduced. MRE 614(a) allows members to request to call or recall witnesses to testify at a court-martial. The military judge decides whether to grant these requests.

After hearing all the evidence and instructions, members will decide on guilt or innocence. If there is a conviction, members can also impose a sentence, or a service member can elect sentencing by military judge alone.  

Unanimous Verdict Not Required

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The United States Supreme Court has repeatedly held that the Sixth Amendment requires a unanimous verdict. In other words, to be convicted of a crime in civilian court, all jurors must agree on the issue of guilt.

Unfortunately, this right does not extend to military courts-martial. Unlike a civilian court where a unanimous decision is required for conviction, in a military court the Government only needs three-fourths of the military panel to secure a conviction. A sentence of death is an exception and requires a unanimous finding of guilt and a unanimous determination by the members that death is the appropriate sentence.

The Court of Appeals for the Armed Forces (CAAF) recently considered this issue again United States v. Anderson (2023). The CAAF emphasized that the Sixth Amendment right to a jury trial does not apply to courts-martial and reasoned that a military defendant can have a fair and impartial panel even if it is not unanimous.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

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The right to remain silent is one of the most important rights to a person suspected of criminal misconduct. Provided by the Fifth Amendment to the United States Constitution and Article 31, Uniform Code of Military Justice (UCMJ), the right to remain silent allows a service member to refuse to answer any question that might tend to incriminate them.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ. If you are facing allegations of misconduct, MJA can help you determine whether it is in your best interest to make a statement or remain silent. Contact one of our military defense lawyers today for a free consultation.

Fifth Amendment Right

The Fifth Amendment to the United States Constitution protects civilians against compulsory self-incrimination. In the seminal case of Miranda v. Arizona (1966), the United States Supreme Court ruled that when a person is interrogated while in police custody, they must be read their Miranda rights. These protections include not only the right to remain silent, but also the right to have a lawyer present during questioning and the right to a court-appointed attorney, if you can’t afford one.

A person is in “custody” for Miranda purposes if they are taken into custody, could reasonably believe that they are in custody or otherwise deprived of their freedom of action in any significant way. Courts have developed factors to consider in determining whether a suspect is in custody. These include, for example, whether the person is under formal arrest and whether they voluntarily accepted an invitation to talk. 

The Supreme Court has carved out exceptions for some types of questioning that do not require a Miranda warning. One such example is that for routine booking questions, or those that are “reasonably related to the police’s administrative concerns” and used “to secure the biographical data necessary to complete booking or pretrial services.” The policy may not, however, ask questions during booking that are designed to elicit an incriminatory admission.

Article 31(b), UCMJ Right

Article 31of the UCMJ provides similar, but slightly different, protections to service members. Article 31(b) states that “no person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”

In short, this means that a service member accused or suspected of an offense may not be interrogated or asked to provide an incriminating statement without first being informed:

1. Of the nature of the accusation;
2. That they have the right to remain silent; and
3. That any statement made may be used as evidence against them in a trial by court-martial.

Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.

Persons “Subject to the Code”

It’s important to note that the requirements of Article 31, UCMJ, only apply to persons who are “subject to the code” (referring to the Uniform Code of Military Justice). ” This includes active-duty service members as well as any “knowing agent of any such person or of a military unit.”

For example, in a case out of Camp Lejeune, North Carolina, military prosecutors were able to have a Wounded Warrior Care Coordinator, who was a civilian and not “subject to the code”, testify against the accused. Specifically, the Care Coordinator was allowed to testify to admissions made by the accused about the night in question even though the Care Coordinator suspected the accused of wrongdoing and failed to provide Article 31(b) warnings.

In contrast, the accused’s Staff Non-commissioned Officer, who was “subject to the code,” was NOT allowed to testify after failing to advise the accused of her Article 31(b) rights prior to questioning.  

Involuntary Statements are Not Admissible

A statement obtained from an accused or suspect in violation of Article 31 is generally considered involuntary and therefore inadmissible at court-martial. While statements involuntarily obtained cannot be used against an accused for the ultimate fact at issue — guilt or innocence — military prosecutors may be able to use such statements at trial for other purposes, such as lack of mistake or consciousness of guilt. 

Remember, investigators are not your friend. Investigators will play nice when speaking with a suspect but are only trying to elicit information they can later use against you. Generally, investigators are not seeking the truth but rather trying to get evidence to corroborate a preconceived narrative about what they believe happened. If a service member does speak to law enforcement—which is almost never advisable—do not lie because that will only make the situation worse.

Comparison Between Fifth Amendment and UCMJ

The protections for servicemembers under Article 31 are different from Miranda rights in a few important ways. First, service members must be told what crime they are accused of under Article 31(b); with Miranda, you are not. Additionally, service members must be told of their Article 31(b) rights any time they are being questioned, not just when they are in custody, as with civilians under Miranda. Finally, service members are NOT required to be told that they may have counsel present before or during the investigation. This is what we are here for at Military Justice Attorneys.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

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Service members convicted at court-martial can face significant punishments. Depending on the nature and severity of the crime, these punishments can include years in confinement, discharge from the military, reduction in rank, forfeiture of pay and allowances, and even death in the most serious cases.

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. MJA has successfully defended service members facing court-martial for some of the most serious offenses under the UCMJ. Contact our attorneys today for a free consultation.

PUNITIVE DISCHARGE

One of the most severe punishments a service member can receive at court-martial is a punitive discharge, i.e. dishonorable discharge (DD), bad-conduct discharge, and dismissal (for commissioned officers). Punitive discharges are different from administrative discharges–like a general under honorable conditions (GEN) or other than honorable (OTH) discharge–because they are intended to be a form of punishment.

In a general court-martial, a judge can award any type of punitive discharge–either dishonorable, bad-conduct, or dismissal–if such punishment is authorized by the charges. In fact, some offenses under the UCMJ, like sexual assault, require a mandatory dishonorable discharge.

A dishonorable discharge is “reserved for those who in the opinion of the court should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.” A dismissal is basically the equivalent of a dishonorable discharge but for commissioned officers.

A bad-conduct discharge, while less severe than a dishonorable discharge or dismissal, is awarded to enlisted members when the judge finds that the misconduct “warrants severe punishment for bad conduct (even though such bad conduct may not include the commission of serious offenses of a military or civil nature).”

Special courts-martial and summary courts-martial are much more limited in their ability to impose a punitive discharge. While a general court-martial can award any punitive discharge, a special court-martial may only award a bad conduct discharge. No punitive discharge is authorized at summary court-martial.

Punitive discharges are particularly severe given the life-long consequences they carry. A service member who receives a punitive discharge can expect to be deprived of “substantially all benefits administered by the Department of Veterans Affairs and the military establishment” including their G.I. Bill and VA healthcare benefits. Military judges instruct juries about the consequences of imposing a punitive discharge, explaining:

The stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will place limitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that he has served honorably. A punitive discharge will affect an accused’s future with regard to his legal rights, economic opportunities, and social acceptability. In addition, a punitive discharge terminates the accused’s status and the benefits that flow from that status, including the possibility of becoming a military retiree and receiving retired pay and benefits.

CONFINEMENT

The potential length of confinement for service members convicted at court-martial can range from no confinement to life in prison without the possibility for parole, depending on the charges and forum.

General courts-martial have no cap on confinement. In contrast, special courts-martial have a jurisdictional cap of 12 months confinement. Summary courts-martial are similarly capped at 1 month confinement for junior enlisted members. No confinement is authorized at summary court-martial for officers or enlisted members above the fourth enlisted pay grade.

REDUCTION IN RANK

There are two distinct types of reduction that can result from a court-martial conviction: adjudged reduction and automatic (or mandatory) reduction.

A reduction in rank is particularly tough because it carries not only the loss of military status and hard earned respect but also a corresponding loss of pay.

Adjudged Reduction

Adjudged reduction is awarded by a jury or judge as part of a sentence. For example, an E-9 convicted at a general or special court-martial of a serious offense could be reduced by the sentencing authority to pay grade E-1.

At a summary court-martial, E-4’s and below may be reduced to the lowest enlisted pay grade. Enlisted members serving in a pay grade above the fourth enlisted pay grade (E-5’s and above) can only be reduced one rank at summary court.

An adjudged reduction in pay grade takes effect on the earlier of: (1) fourteen days after the date on which the sentence is adjudged, or (2) the date on which the sentence is approved by the convening authority.

Automatic Reduction

Automatic or mandatory reduction is not part of a sentence but occurs as a consequence of a court-martial sentence. However, the types of sentences that trigger an automatic reduction differ between the military branches.

In the Army, a Soldier convicted at court-martial is automatically reduced to pay grade E-1 if they receive: (1) a punitive discharge (BCD or DD); or (2) confinement in excess of six months (180 days). Accordingly, if the sentence includes either a punitive discharge OR confinement in excess of six months (180 days), then the Soldier will automatically be reduced to E-1.

The Navy and Marine Corps are slightly different. Within the Department of the Navy, a service member convicted at court-martial is automatically reduced to pay grade E-1 if they receive: (1) a punitive discharge (BCD or DD); or (2) confinement in excess of three months (90 days). The lower threshold for confinement increases the risk of automatic reduction for naval personnel.

An automatic reduction in pay grade does not take effect until the convening authority takes formal action on the sentence.

FORFEITURE OF PAY

A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining whether to adjudge a forfeiture and if so, in what amount, the sentencing authority must consider the implications to the accused and his family of such a loss of income.

At a general court-martial, an accused can be sentenced to forfeit total pay and allowances. In contrast, the maximum forfeiture at a special court-martial is two-thirds pay for 12 months. Forfeitures at summary court-martial may not exceed two-thirds of 1 month’s pay. If the accused is convicted but does not receive confinement, forfeitures of pay may not exceed two-thirds of pay per month.

Similar to automatic reduction in rank, automatic forfeitures of pay may also occur in certain circumstances. In a general court-martial, any sentence that includes either (1) confinement for more than six months, or (2) any confinement and a punitive discharge will require the accused to forfeit all pay and allowances during the period of confinement.

In a special court-martial where a BCD is authorized, any sentence which includes either (1) confinement for more than six months, or (2) any confinement and a bad-conduct discharge will require the accused to forfeit two-thirds of his pay during the period of confinement. If a BCD is not on the table, any sentence which includes confinement for more than six months will trigger automatic forfeitures during confinement.

To protect a service member’s dependents from financial hardship, the convening authority has the discretion to direct that automatic forfeitures be paid to the accused’s dependents for a period not to exceed six months.

FINE

A court-martial may adjudge a monetary fine in lieu of or in addition to forfeitures. A fine makes the accused immediately liable to the United States for the entire amount of money specified in the sentence. The judge or jury may also order that an additional period of confinement be served if the fine is not paid.

Summary and special courts-martial may not adjudge any fine or combination of fine and forfeitures in excess of the total amount of forfeitures that may be adjudged in that case.

DEATH

The most serious punishment a service member can face is death itself. The UCMJ provides the death penalty as a possible punishment for 14 offenses, most of which must occur during a time of war. These include:

• Article 85 – Desertion in time of war
• Article 89 – Striking, drawing or lifting up a weapon to a superior commissioned officer in time of war
• Article 90 – Willfully disobeying a superior commissioned officer in time of war
• Article 94 – Mutiny or sedition
• Article 95 – Being drunk or sleeping on post, or leaving post before being relieved in time of war
• Article 99 – Misbehavior before the enemy
• Article 100 – Subordinate compelling surrender
• Article 101 – Improper use of countersign
• Article 102 – Forcing a safeguard
• Article 103 – Spies
• Article 103a – Espionage as a capital offense
• Article 103b – Aiding the enemy
• Article 110 – Improper hazarding of a vessel or aircraft willfully and wrongfully
• Article 118 – Murder

The death penalty, while a possible punishment, is extremely unlikely. The last time a service member received the death penalty was 1961, when Army Private John Bennett was hanged at Fort Leavenworth for raping and attempting to kill an 11-year-old girl.

OTHER LAWFUL PUNISHMENTS

In addition to the punishments described above, a court may also award any other lawful punishment to include a reprimand, hard labor without confinement (not to exceed three months), or restriction.

If the conviction does not require a mandatory minimum sentence, a judge or jury may adjudge no punishment at all.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. MJA has successfully defended service members facing court-martial for some of the most serious offenses under the UCMJ. Contact our attorneys today for a free consultation.

The post From Death to Discharge: Types of Court-Martial Punishments appeared first on Military Justice Attorneys.

It has long been speculated that ingestion of legally purchased foods containing poppy seeds could result in a positive urinalysis for morphine or codeine. In 2023, the Department of Defense finally confirmed these suspicions and suspended reporting of codeine results on all urinalyses processed by the DoD.

MJA understands the significant adverse consequences that service members can face due to a positive urinalysis and that innocent ingestions do occur. MJA has fought and won drug abuse cases for service members throughout the world. Contact one of our military defense lawyers today to learn more.

ARTICLE 112a, UCMJ (DRUG ABUSE)

Article 112a, UCMJ, criminalizes the wrongful use, possession, manufacture, distribution, importation into and exportation from the United States, and introduction into a military installation, vessel, vehicle, or aircraft under the control of the armed forces.

To be guilty of violating Article 112a for drug use, the Government must prove two elements:

• That the service member used a controlled substance; and
• The service member’s use was wrongful.

The second element is particularly important. Service members who unknowingly or innocently ingest a controlled substance do not have the mens rea (i.e. criminal intent) to violate the law and are therefore not guilty of “wrongful” drug abuse. This would certainly be the case for service members who innocently ingest a legally purchased food product containing poppy seeds.

POPPY SEED PRODUCTS CAN CAUSE A POSITIVE URINALYSIS

In February 2023, the DoD’s Office of Drug Demand Reduction (ODDR) determined that ingestion of certain legally purchased foods could result in a positive urinalysis for codeine.

While poppy seeds themselves do not produce opiates, the poppy seeds can be contaminated during harvest with morphine and codeine. This is particularly troublesome given that certain varieties of poppy seeds are now believed to have concentrations of codeine than previously reported.

DoD drug testing traditionally excluded poppy seed consumption as a legitimate explanation for a positive urinalysis if the service member’s sample contained concentration of both codeine and morphine together. However, a recent scientific study suggests that ingestion of certain types of poppy seeds can result in a positive urinalysis for codeine only—a result that the DoD previously would have considered wrongful drug use and not the result of an innocent ingestion.

In light of these findings, the ODDR temporarily suspended reporting of codeine results on all urinalyses processed at Department of Defense Forensic Toxicology Drug Testing Laboratories and suspended the destruction of urine specimens previously reported as a codeine positive. The DoD also released a memo warning service members to avoid consuming poppy seed products.

PREVIOUSLY DISCHARGED SERVICE MEMBERS

Service members with a previously reported positive urinalysis for codeine, consistent with poppy seed ingestion, are supposed to be identified and contacted by their respective military branch. According to recent guidance, the services have been directed to take “appropriate remedial actions” in those cases—whatever that means.

Service members who do not want to wait around, however, can always petition their Discharge Review Board or Board for Correction of Military/Naval Records for a discharge upgrade or other potential relief.

WINNING YOUR CASE

It is a misconception that service members cannot fight or challenge a positive urinalysis, which is largely perpetuated by commands who try to convince the service member that they have no hope of winning at a court-martial. This is simply not true. At MJA, we have used many different defenses to convince a jury (memberS panel) that there was reasonable doubt as to the unlawfulness of the drug use, such as good military character, unknowing ingestion, timeline, lack of motive, testing limitations, and urine collection procedures.

Furthermore, many of these defenses can be used in conjunction with each other to make the defense theory of the case that much more compelling to the jury. At MJA, we have fought and won many drug abuse cases for our clients throughout the world. Examples of successful cases include:

• A Lance Corporal (E-3) in the Marine Corps was accused of violating Article 112a of the UCMJ. MJA helped the young Marine refuse NJP and then fight the charges at his administrative hearing where we successfully showed his vaping activity did not violate Article 112a. The administrative hearing concluded there was no misconduct on the part of the LCpl and returned him to full duty status.  
• A Hospital Corpsman Second Class (E-5) in the Navy was notified of nonjudicial punishment for allegedly violating Article 112a after testing positive for amphetamines. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription for Adderall. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career. 
• A Petty Officer First Class (E-6) in the Coast Guard was charged with allegations of alcohol and drug abuse under Article 112a of the UCMJ which led to an administrative hearing. MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the service member regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard. 
• A Corporal (E-4) in the Marine Corps was accused of multiple violations of the UCMJ to include possession of narcotics and steroids in violation of Articles 112a and 92, UCMJ. MJA worked with the Corporal to gather witness statements to show he never used drugs or possessed illegal drugs with the intent to use them. As a result of MJA’s efforts, the Corporal was found not guilty of the allegations at NJP and was allowed to finish his enlistment.
• A Petty Officer Third Class (E-4) in the Navy tested positive for THC following a random urinalysis. The Sailor was notified of NJP where, if convicted, he faced the possibility of reduction in rank, restriction, and administrative separation from the Navy. MJA provided evidence to the command showing that the Sailor had innocently ingested THC infused candy. Based on this evidence, the Commanding Officer found the Sailor not guilty at NJP and did not initiate administrative separation processing.

BEYOND A REASONABLE DOUBT

Although every drug abuse case is different, it is important to know that it is never easy for the prosecution to prove beyond a reasonable doubt that the suspect service member intentionally or knowingly ingested the controlled substance. For instance, in a former Marine Corps case, our client had popped for amphetamines, a Class II Controlled Substance, on a urinalysis. He had never been in trouble with law enforcement or his command; was sick in his quarters for four days leading up to him providing his urine; and, the prosecutions had no theory as to how, when, or where the amphetamine was consumed, or put on any evidence as to whether the service member knowingly ingested the drug. We were not surprised that the jury came back in less than 60 minutes with a not guilty verdict.

Although the military has a zero tolerance policy with drug abuse allegations, the service member should not give up hope, and fall on their sword. At MJA, we give daily consultations to service members who are suspected of unlawful drug use, and a common refrain we hear from these service members is that they have been told there is no hope so accept accountability and maybe the punishment will be less. If you are suspected of drug abuse based off of a positive urinalysis you should always ask yourself whether you can plead guilty to something you know you did not do. If you are not comfortable pleading guilty, then you need to retain the best military drug abuse defense lawyer you can to fight shoulder-to-shoulder with you throughout the process.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, including drug offenses. Call us today at (843) 773-5501 for a free consultation.

The post Can Poppy Seeds Cause a Positive Drug Test? appeared first on Military Justice Attorneys.

On December 23, 2022, President Biden signed the National Defense Authorization Act (NDAA) for Fiscal Year 2023 (FY23) into law. The NDAA contains important updates to military law including recission of the COVID-19 vaccine mandate, expanded judicial review of court-martial convictions, the randomized selection of court-martial members, review of the Army’s titling and indexing practices, and more.

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. If you or a loved one is under investigation or facing court-martial or other adverse action, contact us today for a free consultation.

PASSAGE OF THE FY23 NATIONAL DEFENSE AUTHORIZATION ACT

On December 23, 2022, President Biden signed the NDAA for (FY23) into law. The NDAA contains important updates to military justice and other legal matters including recission of the COVID-19 vaccine mandate, expanded judicial review of court-martial convictions, the randomized selection of court-martial members, review of the Army’s titling and indexing practices, and more.

RANDOMIZED SELECTION OF COURT-MARTIAL MEMBERS

Service members tried at court-martial for alleged misconduct can have their case heard by a military judge or a jury (panel of members). Article 25, UCMJ, sets forth the criteria and eligibility for those who may serve on a court-martial.

Section 543 of the NDAA randomizes the selection of members detailed to a court-martial:

Article 25 does not currently require that panel members be randomly selected, allowing the Convening Authority to stack the jury with members that he or she believes would be most favorable to the Government’s case.  

Unfortunately, the amendment does not take effect until two (2) years after the date the NDAA was enacted and only applies to courts-martial convened on or after that effective date.

JUDICIAL REVIEW OF COURT-MARTIAL CONVICTIONS

Section 544 of the FY23 NDAA expands the jurisdiction of the Courts of Criminal Appeals, authorizing judicial review of any conviction by a court-martial, regardless of the sentence imposed.

Article 66, UCMJ, governs the military’s Courts of Criminal Appeals. Each branch of the service has a Court of Criminal Appeals which is empowered to review and act on court-martial records by affirming, reversing, or modifying the findings and sentence in certain courts-martial. The Courts of Criminal appeals will automatically review any cases in which the sentence, as approved, includes:

1. Death;
2. Dismissal of a commissioned officer, cadet or midshipman;
3. Dishonorable or bad-conduct discharge; or
4. Confinement for 2 years or more.

In other words, if a service member were prosecuted at a General or Special Court-Martial and received a punitive discharge (dismissal, DD, or BCD) OR at least two years of confinement, a CCA will automatically review your case.

The NDAA amends Article 66, UCMJ, to authorize judicial review of any conviction by court-martial—including a summary court-martial—regardless of the sentence imposed. This is a hugely beneficial change that will give service members greater opportunity for relief on appeal.

Section 544 of the FY23 NDAA also clarifies the scope of review in courts-martial reviewed by a service’s Judge Advocate General (JAG). Under the new law, the JAG may modify or set aside, in whole or in part, the findings and sentence of any summary court-martial conviction.

The JAG may also order that a general or special court-martial be reviewed by the Courts of Criminal Appeal if submitted within one year after the end of the 90-day period beginning on the date the accused is provided notice of appellate rights. The JAG may, for good cause, extend the period for submission of an application within the timelines specified under the law.

This amendment does not apply to any matter submitted before the date the NDAA was enacted.

REVIEW OF ARMY’S TITLING AND INDEXING PRACTICES

Section 549 of the NDAA requires the Secretary of the Army to review the case files of current and former Soldiers and National Guardsman who were titled and indexed in connection with the Guard Recruiting Assistance Program (G-RAP) and the Army Reserve Recruiting Assistance Program (AR-RAP) to determine the “appropriateness of the titling and indexing decision.”

In 2022, the Army’s titling and indexing practices made national news after it was reported that nearly 2,000 Soldiers had false arrest records due to participating in these recruiting programs.

In reviewing a titling and indexing decision, the Secretary of the Army must consider the following factors:

1. The likelihood that the member or former member to whom the decision pertains will face future criminal prosecution or other adverse action on the basis of the facts in the record at the time of the review;
2. The appropriate evidentiary standard to apply to the review of the decision; and
3. Other circumstances or factors that Secretary determines are in the interest of equity and fairness.

Under the NDAA, this review is required to take place within 180 days of the passage of the law.

After completing the review, the Secretary of the Army is required to notify the service member or veteran of the outcome of the review and how they can pursue additional correction, removal, or expungement, if necessary.

If the Secretary of the Army determines that correction, removal, or expungement of a titling or indexing decision is appropriate, the Secretary of the Army may request that service member’s name and personal information be expunged from any law enforcement database and removed from the Defense Central Index of Investigation (DCII).  

CONTACT MJA TODAY

This blog only covers just a few of the FY23 NDAA’s changes to military justice and other legal matters. The full text of the NDAA is available here.

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. If you or a loved one is under investigation or facing court-martial or other adverse action, contact us today for a free consultation.

The post FY23 NDAA Changes to Military Law appeared first on Military Justice Attorneys.

The military’s authority to place a service member in pretrial confinement recently received national attention after Marine Lieutenant Colonel Stuart Scheller was placed in the brig following a series of social media posts and videos he made criticizing the American withdrawal from Afghanistan.

While the Uniform Code of Military Justice (UCMJ) does authorize Commanders to place service members in pretrial confinement, this extraordinary measure can only be taken in specific circumstances and, even then, a service member is entitled to important due process rights.

MJA has successfully sought the release of service members unlawfully placed in pretrial confinement. If you are under investigation or facing court-martial, it is critical that you have an experienced military justice attorney fighting for you. Contact us today for your free consultation.

REQUIREMENTS FOR PRETRIAL CONFINEMENT

Rule for Courts-Martial (R.C.M.) 305 sets forth the requirements and procedures to order a service member into pretrial confinement.

According to the rule, any person who is subject to trial by court-martial may be confined if the requirements of R.C.M. 305 are met. No person, however, may be placed in pretrial confinement unless there is probable cause (i.e. a reasonable belief) that:

• An offense triable by court-martial has been committed;
• The person confined committed it; and
• Confinement is required by the circumstances.

If probable cause exists, an officer can be ordered into pretrial confinement by a commanding officer under whose authority he or she falls. In contrast, enlisted service members may be ordered into pretrial confinement by any commissioned officer.

A person who directs confinement should consider the nature and circumstances of the offenses charged or suspected, including extenuating circumstances, but is “not required to make a detailed analysis of the necessity for confinement.” For example, the discussion to R.C.M. 305 explains that it may be necessary to confine a person apprehended for a violent crime even if all the details of the offense are not known. Generally, a service member charged only with a summary court-martial level offense should not be ordered into pretrial confinement.

CONFINED SERVICE MEMBER’S RIGHTS

Service members ordered into pretrial confinement have several important substantive and procedural rights. Upon being placed in confinement, a service member must be promptly informed of:

• the nature of the offenses for which held;
• the right to remain silent and that any statement they make may be used against them;
• the right to retain civilian counsel at no expense to the United States, and the right to request assignment of military counsel; and
• the procedures by which pretrial confinement will be reviewed.

Upon request, military counsel must be provided to the service member before their 7-day initial review hearing or within 72 hours of such a request being first communicated to military authorities, whichever is first.

Military counsel may be assigned for the limited purpose of representing the service member only during the pretrial confinement proceedings. A confined service member does not have a right to choose what military counsel represents them.

REVIEW OF PRETRIAL CONFINEMENT

There are three notable opportunities for commands to review the imposition of pretrial confinement: the 48-hour review, 72-hour review, and 7-day review.

Once a service member has been ordered into pretrial confinement, a neutral and detached officer must review the imposition of confinement within 48 hours to determine whether there is probable cause that the service member committed an offense triable by court-martial and that confinement is required by the circumstances.

Then, within the first 72 hours of confinement, the service member’s commander must either direct their release from confinement or prepare a written memorandum explaining why pretrial confinement is warranted. The service member must be released from pretrial confinement unless the commander believes, upon probable cause, that:

• an offense triable by court-martial was committed;
• the prisoner committed the offense;
• confinement is necessary because it is foreseeable the accused will not appear at future hearings or that he will engage in serious criminal misconduct; and
• less severe forms of restraint are inadequate.

“Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States.”

Finally, within 7 days of the imposition of pretrial confinement, a neutral and detached officer must conduct a hearing to review the probable cause determination and necessity for pretrial confinement. The service member may be represented by counsel and can submit evidence on their behalf at the hearing.

The 7-day reviewing officer’s conclusions, including their factual findings, must be set forth in a written memorandum. If the 7-day reviewing officer approves continued confinement, the service member can request reconsideration of the decision if they provide “significant information not previously considered.”

MILITARY JUDGE REVIEW OF PRETRIAL CONFINEMENT

If the reviewing officer determines that continued confinement is necessary and the accused remains confined, the service member may request that the military judge assigned to his/her case review the propriety of the pretrial confinement once the charges are referred to trial.

According to R.C.M. 305(j), “[t]he military judge shall order an accused’s released from pretrial confinement only if:

• the reviewing officer’s decision was an abuse of discretion and there is insufficient evidence presented to the military judge to justify continued pretrial confinement;
• information not presented to the reviewing officer establishes that the service member should be released; or
• the 48-hour probable cause determination or 7-day review were not complied with and information presented to the military judge does not establish sufficient grounds for continued confinement.

If the Defense establishes the first or third criteria, then the burden shifts to the government to demonstrate sufficient grounds under R.C.M. 305 to continue pretrial confinement. In determining whether the reviewing officer abused his discretion, the military judge considers only that information which was presented to the reviewing officer for his determinations.

Factors which should be considered to determine if confinement is warranted are:

• the nature and circumstances of the offenses charged or suspected, including extenuating circumstances;
• the weight of the evidence against the accused;
• the accused’s ties to the locale, including family, off-duty employment, financial resources, and length of residence;
• the accused’s character and mental condition;
• the accused’s service record, including any record of previous misconduct;
• the accused’s record of appearance at or flight from other hearings, trials, and similar proceedings; and
• the likelihood that the accused can and will commit further serious criminal misconduct if released.

See R.C.M. 305(h)(2) Discussion.

REMEDY FOR UNLAWFUL PRETRIAL CONFINEMENT

R.C.M. 305(k) states that “[t]he remedy for noncompliance with subsections (f), (h), (i), or (j) of this rule shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance.”

This credit is computed at the rate of 1 day credit for each day of confinement served as a result of noncompliance with the rule. For example, a service member who serves 90 days of pretrial confinement would receive another 90 days of credit, for a total of 180 days of confinement credit to be applied against any future sentence.

The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.

CONTACT MJA TODAY

MJA has successfully sought the release of service members unlawfully placed in pretrial confinement facing some of the most serious allegations under the UCMJ.

In one case, MJA represented a service member who was placed in pretrial confinement for allegations of murder, manslaughter, wrongfully discharging a firearm, and violating a lawful order. At arraignment, MJA filed a motion to have the service member released from confinement based on defects in the initial review hearing. The Military Judge found that the Initial Review Officer had abused his discretion by keeping the service member in pretrial confinement and ordered his immediate release. The service member was later awarded administrative confinement credit for the abuse.

If you are under investigation or facing administrative separation or court-martial, it is critical that you have an experienced military justice attorney fighting on your behalf. Contact us today for your free consultation.

The post Locked Up: Military Pretrial Confinement Explained appeared first on Military Justice Attorneys.