Court-Martial Defense – OSTC Covered Offenses 

The Uniform Code of Military Justice (UCMJ) contains dozens of “punitive articles” or military offenses for which a service member can be criminally prosecuted. While all of the punitive articles are serious and can serve as the basis for court-martial, administrative separation, or other adverse action, certain “covered offenses” will receive special attention beginning on 27 December 2023 with the new creation of the Offices of Special Trial Counsel (OSTC). If you or a loved one is under investigation or facing court-martial, contact MJA today for a free consultation.  

What is the Office of Special Trial Counsel (OSTC)?

Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military lawyers responsible for the prosecution of serious criminal offenses under the UCMJ. The OSTC is independent from the military chain of command of the accused and has the exclusive authority to determine whether a “covered” offense should be prosecuted. 

What “covered offenses” does OSTC  prosecute?

The OSTC is authorized to prosecute “covered offenses” which include:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

Can the OSTC prosecute other crimes?

In addition prosecuting covered offenses, the OSTC may also exercise authority over: (1) any offense the OSTC determines to be related to a covered offense (related offense); (2) any other offense alleged to have been committed by the same person accused of committing a covered offense (known offense); and (3) any covered offense committed before 28 December 2023 except those noted by an asterisk below.

Why is creation of the OSTC important?

Creation of the OSTC is the most historic and significant change to the MCM in decades because it essentially replaces the role of the commanding officer with that of an independent prosecutor. Historically, a service member’s commanding officer alone had the authority to dispose of allegations of misconduct and “convene” a court-martial. Under the new system, it is the OSTC—not the commanding officer—who has the “exclusive authority” to determine whether a reported offense is a covered offense and whether it will be prosecuted.

How does this affect service members facing court-martial?

Creation of the OSTC is both good and bad for service members facing criminal prosecution. On one hand, creation of the OSTC is good because it should mean that weak and spurious allegations are not referred to court-martial. All too often in the past, service members find themselves at court-martial for allegations that are obviously not supported by convincing evidence and where there is low likelihood of conviction. The OSTC will hopefully exercise its discretion for good to prevent unnecessary criminal prosecutions.

The downside for service members, however, is that courts-martial that do take place will be based on solid evidence and will be prosecuted by the most experienced military attorneys, thereby increasing the likelihood of convictions. Additionally, since the commander is not the person deciding whether or not to refer charges, a service members’ reputation and career will not really be considered by charging authorities. Given these changes, it is absolutely essential for service members facing court-martial to have the very best legal defense representation.  

Can MJA help?

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Given recent changes to the UCMJ, service members facing criminal prosecution need, more than ever, to be represented by an experienced attorney. If you or a loved one is under investigation or facing court-martial, contact us today for a free consultation.