Why a Civilian Attorney?

We recommend that the accused and their families hire a civilian lawyer. Why?

A civilian attorney is not beholden to the convening authority, or anyone else in the command structure, for his or her future career and/or promotion prospects.

A qualified, competent and involved civilian attorney is one of the the most effective weapons against military prejudice in many cases.

Most defense lawyers in the military are conscientious, hard-working, and highly ethical, however,

The problem is that they are often inexperienced, and viewed by commanders as an impediment to getting things done.  The real problem is with the system, not the defense lawyers.

When the convening authority picks the jury, decides what experts and budget the defense gets, decides which cases go to trial, etc., there is a significant obstacle to obtaining justice.

Military justice is a closed, totalitarian system which is averse to civilian participation or scrutiny. A good civilian lawyer may force the prosecution to present solid proof to get a conviction, obtain a shorter sentence or get some charges dropped.

The introduction of a competent civilian attorney early in a case, preferably before charges are brought, puts the convening authority on notice that the case will be professionally defended, not just another plea agreement in the interest of "good order and discipline".

Military defense attorneys often operate similarly to public defenders in the civilian world: they often have large case loads and may not have adequate time for each client's case.

Given the nature of military billets and the possibility of military counsel to be deployed or change duty stations, there have been many cases where military defense attorneys were suddenly and unexpectedly transferred prior to trial, sometimes only days before trial.

There are three stages leading to a verdict, each with its own do's and don'ts for the accused and the accuser's family.

The sooner you act on these guidelines, the better. The further the case progresses, the harder the government's case becomes.

If you're already familiar with the process and immediately need a competent lawyer or outside help, Call 877-546-2900

Charges pending

Do not run out immediately and “fall on your sword.”  Your cooperation with the Command or with government investigators does not ensure a lenient sentence.

The government or it’s agents may try to convince you that, “if you just cooperate, things will be easier on you,” or, that it is not necessary to “lawyer up.”  If it is helpful to disclose anything about your case, this decision should be made by you and the assistance of military and civilian defense counsel. 

Your innocence does not guarantee anything. As soon as you find out you are being investigated, it's time to start a journal documenting every detail of who, what, when and where relating to the investigation

The first time an investigator asks you for an interview, demand a military defense attorney and persist until you get one. Note the time in your journal and tell the investigators to note your requests in their notes. Say nothing until you have your own lawyer

Do not fall for the old line "If you're innocent, you don't need a lawyer"! Demand and get your legal (even in the military) right to your own attorney.

Do not talk unless your assigned defense attorney is present (not some other government agent pretending to be concerned for fairness or justice).

Now is the time, if at all possible, to hire a qualified civilian lawyer, before charges are filed. This is the best money you, or your family, may ever spend.

Do not talk to investigators about anything without your lawyer, military or civilian, being present and do not sign anything without thorough discussion with him/her.

Demand that all interviews be recorded on audio and/or video tape.

During this phase, you must expect to be subjected to isolation, deprivation, "good cop/bad cop" routines and intimidation in an effort to break you down "for the benefit of the service or the good of the Corps.”

Don't cave in; stick to the guidelines above. These are your legal rights as a United States citizen, whether you’re a service member or not.

For the ACCUSED

Do not waive your right to an Article 32 hearing, no matter what you may be told to the contrary. The Article 32 is an essential protection for the accused and often a extremely useful way to obtain information about the government’s case against you.

Do the following:

If you don't already have one, do everything possible to retain a civilian lawyer.

Before the hearing, make sure that your journal and any relevant papers are copied and at least one copy is safely delivered to someone you trust.

Before the hearing, make sure that your defense lawyer has interviewed and obtained written statements from all your possible and probable witnesses. In the military, nobody can be counted on to testify on your behalf. The pressures on them can be overwhelming, or they can simply be transferred or reassigned.

If you are offered a chance to resign "for the good of the service", you should seriously consider it after consulting with your lawyer, regardless of actual guilt or innocence. It's only going to go downhill from here.

If you are a rape suspect, demand that a DNA test be done by a qualified civilian lab with concurring results from another. This is a fairly conclusive test.

Send all your valuables home or have a friend do so.

What to do?

Immediately prior to the hearing, your lawyer may begin to push for a plea bargain: a lesser sentence in exchange for your confession (guilty or not).

The Catch 22 is that if you maintain your innocence, you will probably be denied leniency after conviction because you did not "take responsibility" for your actions.  This is a common theme with government and military officials.  Don’t be confused by this dilemma.  The forthright information that you bring to the investigators is most often the same information that the government will turn around and use against you in a trial or sentencing hearing.

For the ACCUSED

Now is the time to hire a civilian lawyer if at all possible. Even if you have confidence in your military defense attorney, be aware that s/he can be transferred or reassigned without notice.

1.  Consider all possibilities for hiring a civilian lawyer.

2.  Work on strategy with your defense lawyers. (Civilian and Military) Be sure to address these key issues:

3.  Who in the chain of command will testify on your behalf? Your lawyers need to secure their cooperation before they are scared off by the government. Also, they are subject to arbitrary transfer, so your lawyers should obtain affidavits as soon as possible.

4.  Where are the handwritten notes of the investigators? These could prove crucial in the court-martial and must be made available to the defense.

5.  Defense witnesses? Once again, military witnesses are subject to extreme pressures from the government. Obtain affidavits as early as possible in case they are unable to testify or "change their minds".

6.  Redirect your pay to a family member before the court-martial. If you haven't already done so, arrange to send all your valuables home.

7.  In the panel (jury) selection phase, make sure your attorney quizzes prospective members (jurors) about their court-martial experience, types of cases and, especially, whether any resulted in an acquittal.

8.  Be very wary of requesting senior enlisted members for your panel - they are widely regarded as the "kiss of death."

9.  You may request that your hearing be before a judge only, without a jury panel. This is a serious step and should only be decided after careful consideration with your defense attorney.

FORUMS

Non-Judicial Punishment (NJP)

Command Leadership Tool

Non-judicial punishment (NJP) is considered a leadership tool providing military commanders a prompt and essential means of maintaining good order and discipline. NJP proceedings may be know by different terms among the Services, such as "Article 15", "Office Hours", or "Captain's Mast", but the purpose of the NJP, and for the most part its procedures, are common among the services.

Not to be Taken Lightly

Although a command may offer NJP as an attractive alternative to a Courts Martial, an NJP can end a military career.  Before accepting NJP, it is imperative that you consult with a military and/or civilian defense attorney.

Minor Offenses

NJP is used to discipline members for minor violations of the Uniform Code of Military Justice (UCMJ) and serves to correct misconduct without attaching the stigma of a court-martial conviction to the member. The Manual for Courts-Martial defines a minor offense for NJP proposes as "ordinarily an offense for which the maximum sentence imposed would not include a dishonorable discharge or confinement for longer than one year if tried by a general court-martial." NJP is a disciplinary measure more serious than administrative action (e.g., letter of reprimand), but less serious than a court-martial.

Article 15, UCMJ, and Regulations

NJP is permitted by Article 15, (Section 815 of Title 10, United States Code) and is governed by Part V of the Manual for Courts-martial and by service regulations. Prior to imposition of NJP, a service member must first be notified by the commander of the nature of the misconduct of which he or she is accused, of the evidence supporting the accusation, and of the commander's intent to impose NJP. The member may then be allowed to consult with a defense counsel to determine whether to consent to a NJP proceeding, or to refuse NJP and demand instead a trial by court-martial. The major difference among the services with regards to NJP is that service members attached to or embarked in a vessel may not refuse imposition of NJP.

Accused Ultimately Chooses the Trial

Consenting to participate in a non-judicial punishment proceeding is not an admission of guilt. By accepting, the accused declines to exercise the right to demand trail by court-martial regarding the offense alleged. If an accused demands trail when presented with a proposed NJP action, the commander is thereafter prohibited from going forward with non-judicial punishment. Prior to imposing NJP, the commander will hold a hearing at which the member may be present. The member may also have a spokesman attend the hearing, may present evidence to the commander, and may request that the commander hear from certain witnesses. The commander must consider any information offered during the hearing, and must be personally convinced that the member actually committed misconduct before imposing punishment.

Permissible Punishment

Permissible punishment for enlisted personnel include such actions as reduction in rank, forfeiture of pay (up to 1/2 of one month's pay per month for two months), restriction to base or ship (up to 60 days), extra duties, correctional custody (up to 30 days), and a reprimand. For officers, permissible punishment can include forfeiture of pay (up to 1/2 of one month's pay per month for two months), restriction to base or to ship (up to 60 days), arrest in Quarters (up to 30 days), and reprimand. The actual maximum punishment under the circumstances depends upon the rank of the commander who imposes the punishment. Higher-ranking commanders may imposes greater punishment than lower-ranking commanders may.

No Conviction Record

Receipt of a non-judicial punishment does not constitute a criminal conviction.

 Summary Court-Martial

 A summary court-martial has jurisdiction over all personnel, except commissioned officers, warrant officers, cadets, aviation cadets, and midshipmen, charged with a UCMJ offense referred to it by the convening authority.

 Composed of one commissioned officer on active duty, usually pay-grade O-3 or above.

1. Accused member is not entitled to be represented by a military attorney, but may hire a civilian lawyer at his or her own expense.  In rare cases, military exigencies may preclude the reasonable availability of civilian counsel.  In the Air Force, as a matter of policy, all accused at a summary-court martial are afforded representation by military counsel.

2. Accused member may object to trial by summary court-martial, in which case the charges are returned to the convening authority for further action (e.g., disposition other than by court martial or action to send the charges to a special or general court martial).

3. The maximum punishment a summary court-martial may award is: confinement for 30 days, forfeiture of two-thirds pay for one month, and reduction to the lowest pay grade (E-1).

4. In the case where the accused is above the fourth enlisted pay grade (E-4), a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next lower pay grade.

 Special Court-Martial

 If you are charged with an offence and your case is going to be sent to a special court-martial, the maximum punishment you can receive is:

▪Reduction to pay grade E-1

▪Forfeiture of 2/3 of your base pay per month for 12 months

▪Confinement for 12 months

▪Discharge from the service with a Bad Conduct Discharge

You will also have the following rights at a Special court-martial: 

1. To be represented by a detailed military defense counsel at no expense to you.  In addition to, or instead of, your detailed defense counsel, you may be represented by a civilian defense counsel, at your own expense.  You may also request representation by an individual military counsel (IMC) of your own selection, if that counsel is reasonably available, as determined by his or her commanding officer.  If you are represented by a civilian counsel, your detailed defense counsel will normally continue to represent you along with your civilian counsel, unless you choose to dismiss the detailed military counsel.  If you are represented by an IMC, the decision to continue to be represented by your first defense counsel is up to his or her commanding officer.

2. To have three full days between the day when you receive service of a completed charge sheet and the day the trial begin.

3. To plead "not guilty" to any or all offenses charged, even if you have committed the offences and believe the government can prove them beyond a reasonable doubt.  A plea of guilty is the strongest form of proof in the law.  On your plea of guilty alone, you may be found guilty without any other evidence being presented against you.  Moreover, a plea of guilty permits the court martial to give you any form of punishment up to the maximum authorized.  If you decide to plea guilty, you must admit every element of the offense alleged and waive the following rights: (a) constitutional right against self-incrimination; (b) right to trial of the facts alleged by a court martial; and (c) constitutional right to confront the witnesses against you.

4. To remain silent, to testify and call any witness on your behalf, and to cross-examine all witnesses called to testify on the ultimate issue of guilt or innocence.  If you are charged with more than one offence, you may limit your testimony to less than all or to one of the offenses charged.

5. To assert any proper formal defense or objection, such as lack of jurisdiction or the running of the statute of limitations, whether or not you enter a guilty plea.

6. As to any offenses of which you are guilty, you may: (a) remain silent; (b) testify under oath and being subject to cross-examination; (c) make an un-sworn oral or written statement by yourself or through your counsel without being subject to cross-examination; and (d) present evidence in extenuation and mitigation (on matters about yourself or the offense which you would like the court to consider before determining sentence).

7. To be tried by a member (jury) composed of at least three officers.

8. To request the appointment of enlisted persons to comprise at least one-third of the members of your court martial.  These enlisted members would be senior to you and from a different company or section.

9. If you choose a jury, the members will determine your guilt or innocence by a two-thirds majority vote conducted by secret ballot.  If you are found guilty, then the members will determine your sentence by a two-third majority vote conducted by secret ballot.

10. If you do not want a jury trial, you may instead request to be tried by a military judge alone.  In that case, the sole military judge will determine your guilt or innocence, as well as your sentence.

11. To request "in writing" an other-than-honorable discharge instead of a court-martial.  Before submitting such request, you must consult with counsel.  If your request is approved, you will receive an other-than-honorable discharge and may be deprived of all veteran's rights and benefits otherwise due to you as a result of your current period of active duty.  You could expect to encounter substantial prejudice in the civilian community as a result of this type of discharge, and it may prevent you from obtaining the job you desire, or from attending the school of your choice.

 III.  General Court-Martial

 If you are charged with an offence, and the convening authority is contemplating trial by general court-martial (a felony trial), the evidence against you must first be presented at an Article 32 Investigation (refer to the Article 32 section for more information).

After the Article 32 Investigation has been conducted, or is waived by you, your cases may be referred to a trial by general court-martial.  At a general court-martial, the maximum punishment is generally determined by the sum of the maximum punishment authorized for all offences with which you are charged, unless some of the charges are duplicative, which means they cannot be counted separately. Those maximum punishments are separately listed for each offence under the UCMJ. They can be found in the Manual for Courts-Martial in the section for Punitive Articles, Art. 77 through Art 134, or in the Appendix marked Table of Maximum Punishments.

Your rights at a general court-martial defer from your rights at a special court-martial (refer to Special Court-martial section for more information) in only a few ways: (a) you have the right to have five full days (rather than three) between the day of service of a completed charge sheet upon you and the trial date; and (b) you have the right to be tried by members (jury) composed of at least five (rather than three) officers.