Frequently Asked Questions

Active duty service members facing criminal charges often face legal battles in two court systems; civilian court, and court martial via the military justice system. Both can have long-lasting consequences to your life and military career.

Domestic assault charges are particularly damaging to service members. Under The Lautenberg Amendment, police officers and military personnel who are convicted of domestic violence cannot possess firearms for home or professional use. The end result of this is separation from the military, likely with a punitive or other than honorable discharge characterizations.

What to Expect if You’ve Been Accused of Domestic Assault:

After an alleged incident takes place and is reported, you will likely be served with a Military Protective Order (MPO) outlining the requirements of the order as it pertains to your accuser. In most cases, you will be unable to contact or go near your accuser in any way until your hearing, court date, or longer.  If the accused service member was arrested by civilian authorities, the accused will likely be charged in civilian criminal courts and receive a no contact order from this court as well.  

It is at this stage that you want to engage an experienced military justice defense attorney.

Do NOT try and contact your accuser to “make things right.” Doing so is in direct violation of your MPO and can open you up to further criminal charges.

Your alleged offense is brought before your commanding officer, who will determine whether or not there is probable cause that you violated the UCMJ, and may also order that you be arrested and detained for up to 72 hours depending on aggravating factors. This process allows the CO time to decide whether or not to move forward with a court martial or other form of non-judicial punishment; however, most accused who are placed in pre-trial confinement will go to a Special or General Court Martial. Your commanding officer will have 120 days after your arrest or detainment to move forward with the court martial.

The Military Courts-Martial System

Should criminal charges be filed against you, your case will be heard in one of three types of Court Martial:

• • Summary Courts-Martial – it is unlikely that a domestic assault charge would be addressed here, as a Summary Courts-Martial is reserved for minor offenses, and hearings here do not require a judge.

• • Special Courts-Martial – reserved for more serious offenses and is most like a civilian criminal court. These courts-martial cases can be heard by a judge or a panel of members. Punishments assigned in a special court martial range from up to one year of confinement, forfeiting pay, or punitive discharge.
  • General Courts-Martial – these courts-martial are reserved for the most serious of offenses, and include a judge, panel of members, and legal representation for the accused. Penalties assigned in a general courts martial are more severe as they allow for maximum sentencing under the UCMJ, including life in jail, death, and dishonorable discharge.

Beyond the accused being referred to a court martial, the command could try to dispose of the allegations administratively, such as Non-Judicial Punishment, and Involuntary Administrative Separation.  Again, if the accused servicemember was arrested by civilian authorities, the accused will have a completely separate court process out in town, which could influence the command on how they would like to handle the same allegations in the military courts or administrative boards.

If you’ve been accused of domestic assault, you need an aggressive military defense attorney on your side to protect your rights, and your future. Though the military assigns anyone subject to courts-martial an attorney, having a civilian attorney well-versed in military law, and not subject to chain of command, is invaluable. Don’t delay, call the Military Justice Attorneys today at (843) 773-5501.

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If you are suspected of a crime in the military, it’s critical that you understand your rights and how to invoke them. These basic rights include the right to remain silent and to have an attorney present during questioning by a law enforcement agent. However, beyond your basic Constitutional Rights, it is equally important to understand what you should and should not do as a suspect of an investigation.

1. Do not waive your Article 31b Rights. Prior to a law enforcement agent reading a service member their Article 31b Rights, they must notify the service member what he/she is alleged to have done.  In most cases, the investigator will try to get the suspect to complete a “Suspect’s Acknowledgement and Waiver of Rights Statement”, or a “Rights Warning Procedure/Waiver Certificate.” These statements or certificates can be very confusing for a young, scared service member who has just been told they are in “trouble”.  Unfortunately, some suspects do not realize when they are completing this document they are not just acknowledging their rights, they are also waiving them.  Don’t be in a rush to make this mistake; but rather, demand an opportunity to review your rights statement or certificate with a criminal defense counsel prior to you completing the document.
2. Consult with a criminal defense counsel who specializes in military law. It goes without saying your very first step, after being notified you are a suspect, is to speak with a criminal defense attorney who specializes in military law.  Nearly all large military installations have a defense counsel office on base who should be able to assist you with understanding your rights as a suspect.  Beyond uniformed judge advocates, a suspect can also speak with a civilian defense attorney who practices military law.
3. Fight the urge to tell your side of the story. Whether you think yourself to be innocent or not, it is never a good idea to talk with friends and colleagues about your case.  You must understand your words can, and will, be used against you if you are a suspect of a crime.  It is very common for law enforcement to “canvas interview” friends and colleagues of a suspect to see if they have been talking about the case in hopes of identifying different stories being told by the suspect, or other discrepancies. Furthermore, prosecutors will want to be able to paint you as a liar, and will put on evidence you made several contradictory statements to people while you were confiding in them.
4. Do not lie. In the military, making false statements to a law enforcement agent is a violation of Punitive Article 107 of the UCMJ.  Thus, if you are suspected of a crime, and you lie during questioning, you can be charged for the suspected crime and the lie – where there was one, now there is two.  Furthermore, prosecutors love to charge false official statements, because the very charge calls into question the credibility of the accused irrespective of whether they can secure a conviction for the statement.  In short, a suspect should remain silent, and ask for an attorney.
5. Don’t be fooled by police or interrogative tactics. Understand that law enforcement can, and will, lie to suspects to procure a confession and/or admission.  There is nothing illegal about an investigator lying to you about a piece of evidence that does not exist to make you feel as though you should admit or confess to the crime.  For example, investigators frequently lie to suspects about third party witnesses or DNA being present during the commission of the crime when neither actually existed at the time of the questioning.  Also, you should not be fooled by the investigator’s warm disposition or pleasant conversations.  This sort of behavior by the investigator is meant to build a false sense of comradery in you so you are less defensive and more accommodating.  There are many more interrogative tactics that can be used against you while you are being questioned…thus, remaining silent and asking for an attorney is always advisable.
6. Shutdown your social media accounts. More and more, law enforcement agents are trolling social media accounts of the suspect in hopes of finding corroborative evidence to the alleged crime.  In a recent Marine case out of South Carolina, the prosecutors tried to admit into evidence a 10 year old photo of the accused drinking a beer with several women in a dorm room.  The prosecutors were able to seize the photo from the Marines Facebook account, and tried to paint him as a heavy drinker to corroborate his DUI charge.
7. Be aware of pretext calls from alleged victims, or confidential informants. During a criminal investigation, law enforcement will sometimes illicit the help of the alleged victim, or co-conspirator, by having her call or text the suspect while the call is being recorded.  The goal of any pretext call is to get the suspect to admit to the crime.  At MJA, we see pretext calls frequently being used for “he-said-she-said” sexual assault allegations, where the investigators are trying to create additional evidence to corroborate the alleged victim’s story.  It is very common for an alleged sexual assault victim to make a pretext call to her supposed assailant to confront him with a claim of rape in hopes that he either confesses, or simply apologize.  Thus, if you get a call or text from someone after a sexual encounter asking you, “why did you do that to me?”; or, “I can’t believe you did that to me!”; or, “don’t you feel bad?”; or, “you are not even sorry you did this to me, are you?”, then you should be very skeptical of the intent of this person and simply terminate the call.  Your next call should be to a criminal defense attorney who specializes in military law matters.

If you feel you are a suspect in a crime, please call the Military Justice Attorneys today and let our experience team go to work for you.

The post What to Do (or Not Do) If You Are a Suspect to a Crime in the Military appeared first on Military Justice Attorneys.

When a service member is accused or suspected of misconduct, that person’s commanding officer may initiate a preliminary inquiry or command investigation (also known as an AR 15-6 investigation in the Army) to look into the allegations.  Generally, the commanding officer will appoint a senior enlisted or officer within his/her command to investigate the allegations, and to produce a report that details what, if any, evidence was gathered. The command investigator will also provide recommendations as to the disposition of the allegations – i.e. Article 15, or Court Martial.

A command investigation can be informal or very thorough, depending on the nature and severity of the allegations. While appointed command investigators are not professional investigators, like Naval Criminal Investigative Services (NCIS) or CID agents, the accused service member still has rights under the Uniform Code of Military Justice, and the Constitution.  

Do’s and Don’ts

If you are the subject of a command investigation, make sure you keep these do’s and don’t’s in mind throughout the process.

DO: Know your rights. First off, make sure you’re not being kept in the dark. If you are suspected of misconduct, an investigating officer must inform you of the allegations and read you your rights. Under Article 31 of the Uniform Code of Military Justice (UCMJ), you have the right to consult with an attorney and the right to forgo making any kind of statement. You may also have the right to challenge findings in the investigation.

DON’T: Incriminate yourself. One of the rights mentioned above protects you from self-incrimination, meaning you aren’t required to make any sort of statement or answer questions about the accusations against you. It’s important that you exercise that right until you have a chance to speak with your lawyer. If you don’t stay silent, you risk saying something that may be used against you. A servicemember, who is the subject of a command investigation, can expect to have his statements used against him at his Court Martial.

DO: Understand the purpose of the investigation. The preliminary inquiry is not a criminal proceeding in itself; it’s designed to give the commander more information — quickly, usually in 72 hours. Once the commander knows more, he can dispose of the allegations at his level, or he can forward to a higher command, with his/her recommendation on how to dispose of the allegations. The investigation itself will aim to find evidence of your guilt or innocence, as well as the presence of aggravation, extenuating circumstances, and mitigating factors.

DON’T: Forget the consequences. Although the inquiry won’t necessarily lead to law enforcement actions, they may prompt the commander to recommend disciplinary actions or criminal charges. Even if an investigation starts out as something more innocuous, it can result in criminal charges as new evidence arises. A car accident, for instance, can turn into a DUI charge as the investigator collects BAC test results, police reports, and witness statements. Besides a potential criminal record, command investigations can also result in repercussions for your military career in general, so the process should never be taken lightly.

DO: Take care of yourself. Exercise and eat right. In the event you do wind up at court-martial, you want to be looking and feeling your best. Your uniforms must fit. Not only is taking care of yourself important from a mental and physical perspective, but you impress your command by continuing to perform your military duties and working hard.

Contact MJA Today

Finally, get a qualified lawyer. Considering the possible consequences, you must take the command investigation process seriously and get an assertive, experienced lawyer on your side. The right attorney can protect your rights, advise you about statements, answer your questions about the proceedings, help you challenge findings, and much more. Contact Military Justice Attorneys to get legal assistance from an established civilian military law firm with several years of experience in command investigations.

The post What to Do and What Not to Do if You are Under Command Investigation appeared first on Military Justice Attorneys.

Should I make a statement to law enforcement? A question that any servicemember must ask themselves if they are the subject of a criminal investigation.

Several weeks ago, a client of MJA requested and received a meeting with his commanding general in accordance with the Army Regulation 600-20 “Open Door” Policy. The MJA client, who is an officer under investigation for sexual assault, wanted to specifically request of the general not to take any administrative action against him that would be permanently filed with Army Human Resource Command, until his pending court-martial had been fully adjudicated. Despite the request being of an administrative nature, the commanding general proceeded to act as the investigator, and asked the MJA client, “so, what did happen that night,” whereby the MJA client, stated, “Sir, my attorney has advised me to not make any statements related to the facts and circumstances of the allegations or investigation.” Upon, hearing this the commanding general, stated, “well, your attorney just hosed you…”.

So is the Lieutenant General correct? Do defense attorneys regularly “hose” their clients when they tell them to remain silent under questioning by law enforcement?

The question of whether to make a statement to law enforcement or to the command is a rather easy one to make in a vacuum, particularly when the servicemember under investigation understands that neither his command, nor law enforcement is looking out for his best interest. However, the invocation of one’s right to remain silent becomes much harder in practice when the full weight of the Federal government is bearing down on you.

1. Even maintaining innocence can amount to charges being preferred against you. Under the Uniform Code of Military Justice, a servicemember can be charged for making false official statements to law enforcement or their command. For example, if the accused were to say, “I never touched her…I have no idea what you are talking about…”, the command could charge the accused with making a statement he knew to be false at the time in which he made it about whether he actually “touched” the alleged victim.
2. Invoking your right to remain silent is not an orders violation. A common misperception, particularly in young servicemembers, is if their command orders him to make a statement then he must make a statement. Any suggestion that servicemember’s Constitutional rights are stripped as soon as they join the military is error; however, there is a perception by servicemembers that if they do not make a statement to their command about the allegations then they will be punished, or at the very least make their command upset with them.
3. Law Enforcement does receive training on interrogative techniques. Criminal investigators often get specialized training on how to conduct interviews or interrogations of the accused. As one would expect, this training provides very effective tools and techniques for the investigator to use during future interviews to elicit incriminating statements by the accused. Some of these coercive techniques can be described as “minimization” (i.e. inferring to the accused that the allegations are not serious), “non-denial” (i.e. not allowing or refusing to allow accused to deny the allegations for long periods of time); and, “false evidence ploy” (i.e. investigator telling the accused that his “DNA is everywhere in the room” when this is not the case). These coercive techniques are taught to the investigators because they are very effective, but many times they can be too effective, and servicemembers (particularly young and less intelligent) can confess to things they simply did not do.

So should a servicemember make a statement to law enforcement when they can be charged for merely maintaining their innocence? Should they make a statement when their command and law enforcement have already identified them as a suspect? Should they make a statement when law enforcement are trained to not allow the suspect to deny the allegations?

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Nonjudicial punishment under Article 15, UCMJ, is a disciplinary measure more serious than administrative reprimands but less serious than trial by court-martial. Whether to accept or refuse nonjudicial punishment is one of the most important decisions a service member can make and, depending on their decision, can have significant consequences.

Military Justice Attorneys has advised countless service members facing the decision of whether to accept Article 15 nonjudicial punishment. If you are under investigation or have been notified of nonjudicial punishment, contact one of our military defense lawyers today to learn more about your rights.

What is nonjudicial punishment?

Authorized under Article 15, UCMJ, nonjudicial punishment is a disciplinary measure more serious than administrative corrective measures (like an administrative reprimand or counseling) but less serious than trial by court-martial.

The purpose of nonjudicial punishment is to provide commanders with a prompt means of maintaining good order and discipline within their commands without the stigma and collateral consequences of a court-martial conviction.

Nonjudicial punishment is intended to be used to punish minor offenses under the UCMJ but has historically been used as a tool by commanders to handle a range of misconduct from order violations, alcohol related offenses, fraternization, to even low-level sex crimes. Nonjudicial punishment is rarely offered to resolve accusations of serious criminal misconduct.

Commanders must exercise sole and independent discretion in determining whether to offer or impose nonjudicial punishment. No superior may direct a subordinate authority to impose nonjudicial punishment in a particular case or issue any regulation, order, or guidance which suggests to subordinate authorities that certain categories of minor offenses be disposed of by nonjudicial punishment instead of by court-martial or administrative corrective measures.

What are my rights at NJP?

As the accused or suspect, you have the right to be informed of the charges you are facing at nonjudicial punishment, be informed of the maximum possible penalties, be allowed to review the evidence against you, and be provided with paperwork notifying you of your rights, among other rights.

Perhaps the most important right, however, is the right to demand trial by court-martial instead of accepting nonjudicial punishment. The Manual for Courts-Martial provides that nonjudicial punishment may not be imposed on any service member who, before the imposition of nonjudicial punishment, demanded trial by court-martial in lieu of nonjudicial punishment, except for service members attached to or embarked in a vessel.

This is a substantial right for most members of the Army, Air Force, and Marine Corps who are rarely attached to or embarked in a vessel. In most instances, service members from those branches will have the opportunity to refuse nonjudicial punishment and demand trial by court-martial. This right still applies to the United States Navy but is much more diminished given how often Sailors are either attached to ship or out to sea, rendering them unable to refuse NJP.

Unfortunately, many service members do not read or understand their rights before deciding to accept NJP/Article 15. As the accused, you have the ultimate right to seek legal counsel before making the decision to accept or refuse NJP.

What are the collateral consequences of accepting NJP?

MAJ recently received a call from a U.S. Army Captain stationed at Camp Humphreys, South Korea. He had already been offered, and accepted, nonjudicial punishment (NJP) under Article 15, UCMJ, from his commanding officer for allegations of conduct unbecoming an officer based on comments he made to a fellow officer after a night of drinking at the Officer’s Club. At the time of his call, he had five days to appeal his Article 15, and wanted to know what his options were for appealing the Article 15, and the subsequent punishment.

After we had explained to the officer that his chances of appealing his Article 15 punishment were rather low, the office indicated that he was told by the Trial Defense Services (“TDS”) attorney that it was in his best interest to accept Article 15, rather than risk a court-martial over the matter. The officer went on to say that the TDS attorney told him that he should accept Article 15, and simply plead not guilty. We indicated to the officer that this line of thinking was not necessarily wrong, but we asked whether the TDS attorney explained the other half of the story – the collateral consequences for accepting Article 15? The officer answered, “no.”

After we expressed dismay in the fact that he had received less than adequate advice from the local TDS, we walked him through the likely impact his Article 15 conviction would have on his career, and life. Let the young officer’s mistake be a lesson for anyone reading:

1. Impact on service member’s evaluation reports. An Article 15/NJP conviction requires the rating official to file a negative evaluation in the permanent personnel file of the service member. In a downsizing military, whether you are an officer or enlisted, if you receive a negative evaluation or fitness report this will likely disqualify you from being eligible for re-enlistment.
2. Involuntary administrative separation. In many cases the Article 15/NJP conviction will later be used for a basis or grounds for the involuntary separation of the service member. This can be particularly important if the service member has served less than 6 years, because the command does not need to provide a board to separate the service member.
3. Recoupment of re-enlistment or bonus. If a service member received a bonus for his re-enlistment, or based on his MOS schooling (i.e. nuclear submarines; flight school), and was involuntarily separated prior to his EAS/ETS, it is very likely that the U.S. Government will try to recoup a pro rata amount of that same bonus.
4. Loss of VA benefits. If a service member is discharged from the military with an other than honorable characterization due to misconduct disposed of at Article 15/NJP he will likely lose nearly all VA benefits, to include educational benefits, such as the GI Bill.
5. Inability to promote. Even if a service member is not discharged, their NJP may make it impossible for them to ever be promoted again in today’s highly competitive military. What’s more, if the service member is reduced in rank at NJP, then they might hit high year tenure and be involuntarily forced out.

Should you accept or refuse NJP?

This is the million-dollar question. While every case is different—and requires consultation with an experienced attorney—below are some important considerations to think about.  

There are many factors that go into the decision of whether to accept or reject NJP. These may include how much time and grade the service member has, the amount or quality of evidence, the risk of court-martial punishment, the severity of charges, whether there is more misconduct that has not been discovered by command, prior service, number of deployments, the service member’s EAS/ETS, collateral administrative consequences, whether there is mitigating or extenuating circumstances, and whether a guilty plea is required.

However, the most important question you must first ask is: can I plead guilty to something I know I did not do? Whether you accept NJP or not is, largely, going to depend on this answer.

While NJP appears to often be a “safer” option for service members—and it usually is—accepting NJP requires a service member to give up important due process rights to which they would otherwise be entitled.

For example, the accused at NJP does not have a defense attorney, there are no Military Rules of Evidence, often the accused is not provided an opportunity to put on evidence in his defense. In most of the service branches, there is also a lower standard of proof—as guilt is determined by a preponderance of the evidence—or just 51% certainty, versus a much higher standard at courts-martial that being beyond a reasonable doubt.

In contrast, in the court-martial system, an accused has the opportunity to gather the full amount of evidence through discovery, maintain his innocence, and have a professional legal voice behind them that can tell their side of the story. This gives you the opportunity to fight allegations that otherwise would be much more likely to be handed down by a commander at NJP/Article 15.

Bottom line is that, with few exceptions, the service member who accepts NJP/Article will likely be found guilty of the charged misconduct regardless of what he states as his defense. Thus, the accused who accepts NJP/Article 15, with the intent of later contesting the charges is usually a very bad strategy.

We would be honored to serve as your advocate and partner during the period of your military legal process. Please get in touch and arrange your free initial consultation.

Can I appeal nonjudicial punishment?

Yes, but it’s difficult to win an appeal. The Manual for Courts-Martial (MCM) states that a “Servicemember punished under Article 15 who considers the punishment to be unjust or disproportionate to the offense may appeal through the proper channels to the next superior authority.” Those are the two bases for appeal: that the punishment is unjust or disproportionate to the offense.

The MCM states that “Servicemember who has appealed may be required to undergo any punishment imposed while the appeal is pending, except that if action is not taken on the appeal within 5 days after the appeal was submitted, and if the Servicemember so requests, any unexecuted punishment involving restraint or extra duty shall be stayed until action on the appeal is taken.”

CONTACT MJA TODAY

Military Justice Attorneys has advised countless service members facing the decision of whether to accept Article 15 nonjudicial punishment. If you are under investigation or have been notified of nonjudicial punishment, contact one of our military defense lawyers today to learn more about your rights.

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