Blogs from 2017

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.

The post How the Military Handles Domestic Assault Charges appeared first on Military Justice Attorneys.

When it comes to illegal drug use, military service members are held to a much higher standard compared to civilians.  Irrespective of the decriminalization of drugs in several U.S. States, the military has not changed their stance on the illicit use of controlled substances. The Uniform Code of Military Justice (UCMJ) prohibits the use of any controlled substances that alter your mind, your mood, your body, or your overall ability to function. If you are facing drug charges as a military servicemember, you must understand the UCMJ rules and how they will affect your military proceedings.

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

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 the armed forces. A few important notes about 112a offenses:

First, the drug must be a controlled substance. Controlled substances include opium, heroin, cocaine, amphetamines, LSD, and marijuana, to name a few. A full list of prohibited substances can be found in the Controlled Substances Act (21 U.S.C. § 812).

Additionally, the service member’s actions must wrongful–i.e. without justification or excuse. For example, a person who possess cocaine, but actually believes it to be sugar, is not guilty of wrongful possession of cocaine.

The Department of Defense has established minimum cutoff levels that must be met before a laboratory will report a positive result. The cutoff values for some of the most common drugs are:

Drug                                   Cutoff Value

THC                                   15 ng/ml

COCAINE                          100 ng/ml

CODEINE                           2000 ng/ml

MORPHINE                       4000 ng/ml

HEROIN                             10 ng/ml

D-METH                             100 ng/ml

Finally, as expected, service members convicted of manufacturing, importing, exporting, and distributing controlled substances are punished more severely than users.

TESTING FOR DRUG USE

In most cases, a urinalysis program is used to detect drug use in the military. The tests will check for a wide range of drugs and controlled substances, including the following:

• Amphetamine
• Cocaine
• Ecstasy or MDMA
• Heroin
• Synthetic Cannabinoids
• LSD
• Marijuana
• Methamphetamine
• Opium
• Prescription drugs
• Street drugs like bath salts, spice, and others

The military is constantly expanding the different types of drugs tested in the urinalysis programs across the Department of Defense. Military drug labs are also well-informed about new or lesser-known drugs, and their metabolites, allowing law enforcement to catch more illegal drug use with the forensic toxicological tests.

DELTA-8 THC VERSUS DELTA 9-THC

Historically, the military only tested for delta-9 THC (the controlled substance) during urinalysis testing. In 2021, the Department of Defense (DoD) expanded its urinalysis screening to also test for delta-8 THC (i.e. the commercially available type that is not a prohibited controlled substance).

Delta-8 THC is similar to delta-9 THC and exists naturally in cannabis plants at low levels. Delta-8 THC is still, however, a psychoactive cannabinoid that can cause a user to experience a type of “high”. For this reason, the DoD prohibits  service members from ingesting or otherwise using any product containing delta-8 THC.

Because Delta-8 THC is not a controlled substance under federal law, service members who test positive for Delta-8 THC cannot be charged with violating Article 112a, UCMJ. Instead, service members who test positive for Delta-8 THC may only be charged under Article 92, UCMJ for violating a lawful order. Service members who unknowingly consumed a product containing delta-8 THC may be able to assert a defense of innocent ingestion.

MANDATORY “PROCESSING” FOR SEPARATION

The Department of Defense (DoD) has a zero-tolerance policy on drug abuse. This policy requires that any substantiated incident of drug abuse, including the use of delta 8-THC,  be subject to mandatory processing. Mandatory processing is not the same as mandatory separation. Whether separation will occur depends on numerous factors.

Simple cases of use or possession are generally handled administratively through nonjudicial punishment or summary court-martial. More serious cases may result in criminal charges at court-martial.

Service members with less than 6 years of military service do not rate a separation board. As a result, they can be administratively separated from the military with a general (under honorable conditions) characterization of service through simple notification procedures.

Service members with more than 6 years of military service are entitled to a separation board hearing. For them, mandatory processing can mean either a board hearing or court-martial.

ASSESSING THE FACTS OF YOUR CASE

If your urinalysis leads to a finding of drug use, don’t panic. A positive test result does not automatically lead to a conviction. The UCMJ must also review the factual circumstances of your case. You shouldn’t face repercussions for the legal use of prescription drugs, for instance.

When it comes to illegal drug use, you also cannot be found guilty if you ingested the substance unknowingly. It’s possible that you mistook an illicit drug for a legal substance, or perhaps you came in contact with a surface contaminated with an illegal substance at a nightclub. The UCMJ will only consider your drug use illegal, or unlawful, if it was done knowingly and consciously.

Beyond the circumstances of your case, your military drug abuse defense lawyer can also defend a drug charge by investigating the collection and testing of your urine sample. It’s always possible that someone made a mistake in the process of collecting the urine and potentially compromised the results. The actual testing process should also be scrutinized to ensure there were no errors.

TAKING YOUR CASE BEFORE A JURY

If your case reaches a military jury, your attorney can introduce any of these various factors to avoid a conviction. The more information they have, the better. The jury isn’t required to convict you solely based on your test results after all, so a solid legal argument will give you the best chances at a favorable outcome.

MJA VICTORIES 

MJA has successfully defended service members facing investigation, court-martial, and discipline for Article 112a offenses. Examples of successful cases include: 

• A Lance Corporal (E-3) in the Marine Corps tested positive for cocaine following an all-hands urinalysis. The Marine was notified of involuntary administrative separation and convinced by his command to sign a board waiver, allowing him to receive an Other than Honorable (OTH) characterization of service. MJA was retained days before the Marine’s separation. MJA immediately withdrew the board waiver and requested an extension of time to submit matters in rebuttal. MJA then provided evidence to show that the Marine had not used cocaine and that the urinalysis result was in error. The Marine was retained on active duty and allowed to continue his military service. 
• A Petty Officer First Class (E-6) in the Navy tested positive for cocaine twice following two all-hands urinalyses. The Sailor, who had served in the Navy for almost 18 years, was notified of nonjudicial punishment (NJP) and was facing potential involuntary administrative separation from the Navy. MJA conducted an investigation to uncover evidence favorable to our case and to show that the Sailor innocently ingested cocaine by drinking coca tea from Peru. Scientific studies conclusively link consumption of coca tea with positive drug tests for cocaine. Based on the evidence submitted by MJA, the Sailor was found not guilty at NJP and remained on active duty.
• A pilot in the Air Force was notified of administrative discharge procedures for allegations of drug abuse. While pending separation, the Officer was arrested for DUI and awarded nonjudicial punishment and a letter of reprimand. MJA guided the Officer through the lengthy separation process and submitted extensive written matters in support. After much effort, the Officer was honorably discharged from the Air Force. 
• 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.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

A positive urinalysis can be enough to destroy a military career. Service members facing drug abuse allegations risk losing their career, healthcare, GI bill, and retirement benefits, if separated. Those who face court-martial risk a federal drug conviction, punitive discharge, and serious confinement time. If you are suspected of drug abuse or have been asked to take a urinalysis, it is critical that you speak with an experienced military defense attorney. Contact our military defense lawyers now to learn more.

The post How the Military Tests for Illegal Drugs appeared first on Military Justice Attorneys.

The concept of a court martial may seem mystifying to some, but it doesn’t have to be. Every military service member should understand the core components of the court martial process. In that spirit, let’s take a look at two essential elements of military court: preferral and referral of charges.

Forming the Military Court

When a military service member is suspected of misconduct or criminal activity, the commanding officer will appoint a command investigator or ask a criminal investigative body, such as NCIS, OSI, or Army CID, to cede jurisdiction over the investigation into the allegations. In the military legal system, a commanding officer becomes the “convening authority” when he or she signs an order to convene the military court. The court itself won’t take action until the convening authority refers a specific case, at which point the court process can move forward.

Indicting a Defendant with a Preferral

Once the investigation is complete, the convening authority may direct a formal preferral of charges to the court. Like an indictment in civilian criminal courts, the preferral of charges formally charges the defendant with criminal allegations. If you ever find yourself in this situation, make sure you exercise your all-important right to call an attorney.

Upon preferral, the accused will immediately gain the right to military counsel. The command must also inform the accused about the charges preferred against him or her, as well as the names of certain people involved in the preferral.

The convening authority can take one of several actions after the preferral of charges:

• • Handle the allegations by administrative means and take no disciplinary action

• • Order non-judicial punishment for the offense; however, this is far more commonly offered prior to the preferral of charges

• • Call for an Article 32 pretrial investigation in order to refer the allegations to a general court martial

• Convene a summary or special court martial

Creating the Court with a Referral

When the convening authority refers the charges, the military court process officially begins. If the case leads to a special or general court martial, an independent military judge will be appointed to preside over the case. The judge will take control unless the convening authority decides to dismiss the charges. The convening authority also maintains the right to offer you a plea bargain, or a negotiated agreement, to dispose of the case at any time. Your attorney can give you more specific advice about whether you should accept a plea bargain.

Your right to an attorney is critical to the outcome of your case, your military career, and your future. Take the opportunity to contact a highly skilled and experienced military lawyer, like the ones at Military Justice Attorneys. We can provide you with strategic and effective legal services from the preferral stage onward.

The post Understanding Preferral and Referral of Charges appeared first on Military Justice Attorneys.

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.

Article 32, Uniform Code of Military Justice (UCMJ), requires that a preliminary hearing be conducted before criminal charges may be referred to general court-martial for trial. A “preliminary hearing” or “Article 32 hearing”, as it is colloquially referred to, is an important pretrial milestone which offers an accused with his or her first real look into the Government’s case against them and provides important due process rights.

Military Justice Attorneys has represented service members facing charges for some of the most serious offenses under the UCMJ and understands how to effectively represent service members at an Article 32 preliminary hearing. If you are under investigation, pending court-martial, or believe that you may soon face a preliminary hearing, contact one of our military defense lawyers today to learn more about your rights.

Authority for a Preliminary Hearing

Article 32, UCMJ, 10 U.S.C. § 832, requires that a preliminary hearing be conducted before criminal charges may be referred to general court-martial for trial. Mandated by federal law, a preliminary hearing is required unless an accused submits a written waiver to the convening authority and the convening authority determines that a hearing is not required.

Rule for Court-Martial (R.C.M.) 405 implements the UCMJ requirement for a preliminary hearing and describes in detail its process.

Purpose of a Preliminary Hearing

Generally speaking, a preliminary hearing is designed to determine whether a court-martial against the accused is warranted. In order to make this determination, the hearing is required to answer three main questions:

1. Whether or not the charges and specifications allege an offense under the UCMJ;
2. Whether or not there is probable cause to believe that the accused committed the offense(s) charged; and
3. Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense.

If these questions are answered in the negative—i.e. that the charges do not allege an offense under the UCMJ, that there is not probable cause, or that the convening authority does not have jurisdiction over the accused or over the offense—that could convince a convening authority to not refer charges to court-martial.  

In addition to answering these questions, a preliminary hearing may also serve as a useful pretrial discovery tool, allowing the accused to gain some insight into the government’s case. This may include the defense being granted access to some investigative files and, in limited instances, having the opportunity to question government witnesses.

Unfortunately, in recent years MJA has seen prosecutors become far less willing to provide full discovery or put on any testimonial evidence that could be cross-examined. While preliminary hearings have generally become more sanitized and less helpful for the defense, an accused should not be quick to waive the hearing until he or she has fully discussed all collateral consequences with their defense counsel.

Preliminary Hearing Officer (PHO)

A hearing under Article 32, UCMJ, is conducted by a preliminary hearing officer (PHO). Whenever practicable, a preliminary hearing officer should be a certified judge advocate. When it is not practical to appoint a judge advocate, the convening authority may detail an impartial commissioned officer to conduct the investigation.

The preliminary hearing officer is intended to be a neutral and impartial figure and does not represent either the government or the defense. In fact, R.C.M. 405 explicitly directs that the “preliminary hearing officer shall not depart from an impartial role and become an advocate for either side.” The preliminary hearing officer must be equal in grade or senior in grade to the military counsel detailed to represent the accused or the government counsel at the preliminary hearing.

The preliminary hearing officer is responsible for hearing all the evidence, ruling on questions of admissibility, and submitting a report to the convening authority. A report to the convening authority must include, at a minimum, the following:

1. For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to the three required questions discussed earlier, including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial.”
2. Recommendations for any necessary modifications to the form of the charges or specifications.
3. An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense, that is relevant to UCMJ Articles 30 and 34.
4. A statement of action taken on evidence adduced with respect to uncharged offenses.

The fourth requirement, dealing with uncharged offenses, allows the preliminary hearing officer to investigate allegations of misconduct which are not even on the charge sheet and recommend whether or not additional charges should be referred to court-martial.  

Despite the specificity of these requirements, a preliminary hearing officer’s report is not binding on a convening authority. As a result, a convening authority may refer charges to court-martial regardless of the preliminary hearing officer’s findings and recommendations.  

General Procedures of Preliminary Hearing

A preliminary hearing is only required when the charges appear serious enough to warrant a general court-martial. The process begins when the accused’s commanding officer or commanding general appoints a preliminary hearing officer. Soon after the preliminary hearing officer is appointed, the hearing date will be set. The accused is required to attend the hearing along with their defense counsel.

During the preliminary hearing, the preliminary hearing officer will first read the charges against the accused. The preliminary hearing officer will then review the non-testimonial evidence against the defense, examine witnesses on both sides, and ask the accused if he wants to make a sworn or an unsworn (not under oath) statement to the court.

Limited rules of evidence apply during a preliminary hearing. These included Military Rule of Evidence (M.R.E.) 301-303 and 305; M.R.E. 412(a); and portions of rules dealing with privileges such as M.R.E. 505, 506, and 514(d)(6). Preliminary hearings are public proceedings and remain open to the public whenever possible. In limited circumstances, the preliminary hearing officer or convening authority may restrict or close a hearing if “there is an overriding interest that outweighs the value of an open preliminary hearing.”

Once the hearing is over, parties sometimes submit supplemental written matters to the preliminary hearing officer for consideration. After reviewing all the evidence and arguments, the preliminary hearing officer will give their written report of the Article 32 hearing to the commanding officer/general. The commander will then decide whether the case should be referred to a general court-martial.

Prior to making this decision, the convening authority’s staff judge advocate (SJA) is required under Article 34, UCMJ, to provide legal advice to the convening authority in writing. The SJA must advise the convening authority that: (A) the specification alleges an offense under the UCMJ; (B) there is probable cause to believe that the accused committed the offense charged; and (C) a court-martial would have jurisdiction over the accused and the offense.

Your Rights as the Defendant

It’s important to understand your rights at a preliminary hearing.

First of all, you have the right to waive the hearing entirely, which may happen as a condition of a plea bargain. Whether or not to waive preliminary hearing is an important decision that will depend on case specific facts and circumstances, including the charges themselves. This decision should only be made after you have consulted with your attorney about the costs and benefits. However, an accused’s written waiver is not binding. A convening authority may determine that a preliminary hearing is required and order it to take place, despite the accused’s waiver.  

If you don’t waive the hearing, you have the right to attend the investigative hearing at every stage of the process. You also have the right to retain legal representation, to present your own evidence and call your own witnesses at the hearing, and to read the investigative report, to name a few. R.C.M. 405 states that at any preliminary hearing the “accused shall have the right to:

1.  Be advised of the charges under consideration;
2. Be represented by counsel;
3. Be informed of the purpose of the preliminary hearing;
4. Be informed of the right against self-incrimination under Article 31;
5. Except in certain circumstances, be present throughout the taking of evidence;
6. Cross-examine witnesses on matters relevant to the issues for determination;
7. Present matters relevant to the issues for determination; and
8. Make a sworn or unsworn statement relevant to the issues for determination.

R.C.M. 405 provides a process for the defense to request the production of witnesses to testify at the preliminary hearing or produce documentary evidence under the control of the government. Evidence not under the government’s control may be obtained through a pre-referral investigative subpoena issued by a military judge or trial counsel.

Because the Article 32 hearing will establish the next stage of the legal process against you, it’s imperative that you are represented by an experienced military lawyer.

Contact MJA Today

Military Justice Attorneys has represented service members facing charges for some of the most serious offenses under the UCMJ and understands how to effectively represent service members at an Article 32 preliminary hearing. If you are under investigation, pending court-martial, or believe that you may soon face a preliminary hearing, contact one of our military defense lawyers today to learn more about your rights.

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A court-martial is a military version of a civilian criminal proceeding. Like its civilian counterpart, it requires an accused to be proven guilty beyond a reasonable doubt, but any real similarity ends there. Differences include:

• Courts-martial are specifically intended to try military offenses.
• All jurors are service members specifically selected by the base commander (“Convening Authority”) to decide the case, where civilian courts decide potential jurors at random.
• Two-thirds vote for a conviction, rather than unanimous vote in civilian courts.
• Before a general court-martial may be initiated, an Article 32 investigation must take place. This proceeding has a rough equivalent in the form of a grand jury in federal courts.

Under the Uniform Code of Military Justice (UCMJ), there are three different court-martial categories, each of which has its own purpose.

Summary Court-Martial

A summary court-martial is presided over by a summary court officer and only tries service members for noncapital offenses. A Summary Court Martial is considered administrative in nature, because there is no military judge, or members to vote guilt or innocence; the burden of proof is a preponderence of the evidence standard, rather than beyond a reasonable doubt; and, there are no Rules of Evidence.  The maximum punishment depends on the rank of the accused. Those above E-4 may be subject to:

• Up to 30 days of confinement
• 45 days of hard labor without confinement
• A 60-day restriction period
• Reduction to an E-1 pay grade (enlisted members only)
• Forfeiture of two-thirds of one month’s pay

All other enlisted personnel may be confined for up to one month and reduced to an E-1 pay grade.

The accused does not have the right to a defense attorney, but they can call witnesses, produce evidence on their behalf, and cross-examine those who testify against them. Although, these rights are available to the accused, it is rare for a contested matter to be handled at a Summary Court Martial.  Rather, most Summary Court Martials are used as a forum for an accused to plead guilty to the charges as part of a pre-trial agreement.

Special Court-Martial

A special court-martial, which is often described as a military misdemeanor court, consists of a military judge and/or at least three jurors who may be officers or enlisted personnel. Of the latter, one-third of the panel’s enlisted members must be senior to the accused and not part of his or her immediate command. The accused may also opt to be tried by military judge alone.

A conviction in a special court-martial requires a two-thirds vote, and if the proceedings result in a conviction, two-thirds of the members must agree on a sentence. Potential punishments include:

• Confinement for up to 12 months
• Forfeiting of two-thirds base pay per month for 12 months
• Pay grade reduction to E-1 (enlisted members only)
• Bad conduct discharge

Unlike a summary court-martial, a conviction by this court is regarded as a federal conviction and may remain on the defendant’s criminal record for life.

General Court-Martial

A general court-martial consists of a certified military judge and/or at least five members. Like special court-martial proceedings, an accused may opt to be tried by military judge alone. If he or she is an officer, any jury panel will consist entirely of officers. Should enlisted members be requested, two-thirds of them must be senior to the accused and not part of their immediate command.

Often characterized as a felony court, a general court-martial may impose any punishment permitted by the UCMJ, including death under certain circumstances. Two-thirds vote is required to convict and agree on a sentence, although a sentence that exceeds 10 years requires a three-quarters vote. The resulting conviction is considered a federal conviction and remains on the person’s criminal record permanently.

Contact Today Us Today

If you are pending court-martial, it is imperative that you retain an experienced military law attorney who will aggressively defend you. At Military Justice Attorneys we have years of experience advising and defending service members charged with serious allegations, and pledge to provide you top-tier representation during a court martial. Call us today at (843) 773-5501 for a free confidential consultation.

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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.

Article 31(b) of the Uniform Code of Military Justice (UCMJ) provides similar, but slightly different, protections to service members. It’s critical that service members under investigation or facing adverse action fully understand their rights.

Right Against Self-Incrimination under Article 31(b), UCMJ

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.

The protections for service members 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 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.

Article 31, UCMJ, Applies to Anyone “Subject to the Code”

It’s important to note that the requirements of Article 31, UCMJ, only apply to those “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.  

Admissibility of Statements Obtained in Violation of Article 31, UCMJ

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. 

Service members being questioned may feel pressured to answer a superior or a higher ranking official. If this happens, don’t say or write down anything. Clearly state that you wish to have an attorney present, and that you wish to exercise your Article 31(b) rights.

Remember, investigators are not your friend. They are there to draw information from you and use it against you in any way if you are a suspect. Of course, do not lie if you do speak to them because that will only make the situation worse.

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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