If you’re suspected of an offense or facing court-martial, it is critical that you understand your rights. Remember that your sacrifice and service does not deprive you of fundamental rights under the United States Constitution, such as the right against self-incrimination and access to legal counsel. No one, not even the command, can violate these rights.
Pursuant to Article 31(b) of the Uniform Code of Military Justice, service members have an absolute right against self-incrimination–that is being forced or misled into answering questions about involvement in a crime. Service members must be informed of a suspected offense before being questioned by an agent of the Federal government (including law enforcement and command representatives) and cannot be coerced into answering questions. The right to remain silent is absolute.
There is no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search.
Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.
Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. The decisions you make while under investigation will directly impact your likelihood for success at trial.
Upon preferral of court-martial charges or apprehension by law enforcement, a service member will be given a free military counsel. The service member may request an individual military counsel or hire a civilian defense counsel at no cost to the government. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.
Service members have the right to refuse an Article 15/nonjudicial punishment (NJP) and demand trial by court-martial. Too often, service members are bullied by their commands into accepting Article 15/NJP for a crime they never committed or where the evidence is clearly insufficient to prove the alleged misconduct. Don’t accept Article 15/NJP until you have spoken with a qualified military attorney on the matter.