When you are accused of a crime, your liberty, livelihood, and way of life hang in the balance. A criminal conviction can severely compromise your family’s stability and security. During these stressful and critical times, you need an experienced advocate with a proven track record of exceptional results who will protect your rights and provide clear and wise counsel.
The Uniform Code of Justice (UCMJ) is the foundation of the system of military justice of the armed forces of the United States. The UCMJ is federal law and applies to all active-duty members as well as members of the National Guard and Reserve and military academy students.
RIGHT TO REMAIN SILENT
Servicemembers have a right against self-incrimination and an entitlement to be informed of the suspected offense(s) before questioning begins. Investigators and command members must advise you of your rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) prior to asking you any questions regarding criminal matters in which you are a suspect. In the military justice system, these rights are afforded much earlier in the criminal justice process than in civilian practice. These rights and protections apply whenever the servicemember is questioned as a suspect of an offense.
When questioned, interviewed, or interrogated in any fashion, you should be told the following:
RIGHT TO COUNSEL
You have the right to retain a civilian attorney at your own expense. You also have the right to speak to a military attorney at no expense to you prior to any questioning. You have the right to have either or both of those attorneys present during any questioning.
Although a military attorney can provide advice and counsel during an investigatory phase of questioning, that military attorney is not necessarily your assigned attorney. A military attorney will not be assigned to you specifically unless and until you have charges preferred against you and your command decides to refer the matter to a special court-martial, an Article 32 hearing, or an administrative separation board.
RIGHT TO CONFIDENTIAL COMMUNICATIONS
According to the Manual for Courts-Martial, Rule 502, a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. This means that any communications between the client and their lawyer in the course of the representation are considered confidential communications and cannot be disclosed without the client’s consent. The purpose of this rule is to allow clients to be open with their lawyers without the fear that the lawyer will be forced to disclose the client’s information to someone else.
Members of the military who are accused of crimes face trial by court-martial. The Uniform Code of Military Justice has three forms of Courts-Martial: Summary Court-Martial, Special Court-Martial, and General Court-Martial. The difference between the various courts is based on the maximum punishment that can be adjudged in each type of court.
Summary Court-Martial
Trial by summary court-martial provides a simplified procedure for the resolution of charges involving minor incidents of misconduct. A summary court-martial is not considered a criminal procedure. The summary court-martial is presided over by one officer who, depending on service policies and practice, may be a judge advocate (a military attorney). The government will not be represented by a prosecutor, and an accused does not have a right to be represented by a military defense counsel at the proceeding. But, the accused will be given the opportunity to consult with an attorney beforehand.
The accused will generally be permitted to retain a civilian defense attorney unless military exigencies prevent it. A summary court-martial is not permitted if the accused objects to being tried in a summary court-martial.
Maximum punishment: The maximum punishment a summary court-martial may impose is considerably less than a special or general court-martial. The maximum penalty that can be adjudged in a summary court-martial is confinement for 30 days, hard labor without confinement for up to 45 days, restriction for up to 60 days, forfeiture of two-thirds pay per month for one month, and reduction to the lowest pay grade (E-1).
Where an accused is above the paygrade of E-4, R.C.M. 1301(d)(2) provides additional limits on the severity of the sentences that may be adjudged: reduction to the next lowest paygrade, forfeiture of two-thirds pay for one month, and up to 60 days of restriction.
Officers cannot be tried at a summary court-martial.
Special Court-Martial
A special court-martial is the intermediate court level. It is a federal criminal process consisting of a military judge, trial counsel (prosecutor), and defense counsel. If a jury is to be empaneled, an enlisted accused may request a court composed of at least one-third enlisted personnel. An accused, officer, or enlisted may also request trial by military judge alone. A conviction at a special court-martial is akin to a misdemeanor conviction in a civilian criminal court. The maximum punishment that can be adjudged is confinement for 12 months, forfeiture of two-thirds pay per month for 12 months, reduction in rank, and a bad conduct discharge. An officer accused in a special court-martial cannot be dismissed from the service or confined.
The accused has the right to be represented by an appointed military defense counsel. The accused also has the right to retain a civilian counsel at no cost to the government.
General Court-Martial
A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel and defense counsel. An enlisted accused may request a court composed of at least one-third enlisted personnel. Unless the case is one in which the death sentence could be adjudged, an officer or enlisted accused may also request trial by judge alone. In a general court-martial, the maximum punishment is that established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement for life, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment. A pretrial investigation under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial, unless waived by the accused. The investigation is a formal hearing, presided over by a military lawyer, at which the accused has a right to be present with counsel.
Like at a special court-martial, in a general court-martial the accused has the right to retain a civilian counsel at no cost to the government. The accused also has the right to be represented by an appointed military defense counsel.
When you are processed for an involuntary discharge from military service due to misconduct, your career, reputation, and retirement are jeopardized. An involuntary dismissal from service can have a long-lasting negative impact on veteran’s benefits eligibility, civilian employment, the ability to reenlist or hold some government jobs and security clearances. It can also cost you hundreds of thousands of dollars in lost retirement benefits.
https://militarypay.defense.gov/calculators/
https://veteran.com/military-retirement-calculators/
Boards of Inquiry (BOIs), for officers, and Administrative Separation Boards (Admin Boards), for enlisted personnel, are administrative hearings at which a service member may be processed for an administrative discharge. They are similar in some ways to courts-martial but, importantly, they are solely administrative and not penal in nature. Like a court-martial, it is an adversarial proceeding, meaning the government can present its case, and the service member (“respondent”) can present their case.
At BOI or Administrative Separation hearings, the respondent has several important rights, including the right to:
The BOI or Administrative Separation hearing is presided over by three servicemembers, rather than a military judge, and these members are typically not lawyers. The Military Rules of Evidence generally do not apply at these hearings, and the decisions about whether misconduct occurred are based upon a “preponderance of the evidence” standard, rather than “beyond a reasonable doubt,” which applies only in criminal proceedings.
For Administrative Separation hearings, if the board determines that an enlisted member must be separated from the service, there are four potential characterizations of discharge.
Characterization of Discharge:
Honorable, General (Under honorable conditions), Other than Honorable (OTH), and entry level separation. An OTH is the worst level of discharge authorized by most Administrative Separation boards. The characterization of a separation may affect veteran’s benefits (including GI Bill eligibility), future re-enlistment in the military, or subsequent civilian employment.
Each armed force has different regulations governing the rules for separation. Admin Boards are for enlisted personnel and are governed by Chapter 19 of the Naval Military Personnel Manual (MILPERSMAN) for the Navy, Chapter 12 of the Coast Guard Personnel Manual, or the Marine Corps Enlisted Separations Manual (MARCORSEPMAN) for the Marine Corps. BOIs, which are for officers, are governed by SECNAVINST 1920.6C.
Nonjudicial Punishment in the U.S. Armed Forces is authorized by Article 15 of the UCMJ. “NJP” or “Article 15,” is a disciplinary measure more serious than the administrative corrective measures such as formal counseling, but less serious than trial by court-martial. This form of discipline provides commanders with a prompt means of maintaining good order and discipline, aims to promote positive behavior changes in service members, while avoiding the stigma of a court-martial conviction.
Right to Counsel for Nonjudicial Punishment (NJP)
You have the right to confer with an independent attorney. If the record of an NJP may be used as evidence against them in future court-martial trials, service members not attached to or embarked on a vessel and not deployed have the right to confer with counsel regarding their decision to accept or refuse the NJP.
Limitations on NJP:
Except in the case of a person attached to or embarked on a vessel or deployed, punishment may not be imposed under Article 15 upon any member of the armed forces who has, before the imposition of punishment, demanded trial by court-martial in lieu of NJP/Article 15. This means that if your command is onboard, attached to or embarked on a ship, you cannot refuse. A person is “attached to” or “embarked on” a vessel if, at the time NJP is imposed, that person is assigned or attached to the vessel, is onboard for passage, or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group, or other regularly organized body.
Double punishment prohibited. When nonjudicial punishment has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.
Increase in punishment prohibited. Once nonjudicial punishment has been imposed, it may not be increased, upon appeal or otherwise.
Multiple punishment for the same incident or course of conduct is not permitted. Therefore, when a commander determines that nonjudicial punishment is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be considered at that time, including all such offenses arising from a single incident or course of conduct, shall ordinarily be considered together and not made the basis for multiple punishments.
Statute of limitations. Generally, NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.
Also, non-judicial punishment may not be imposed for an offense tried by a federal military court. Similarly, no non-judicial punishment is allowed if an offense is tried by a state, or by a foreign court, unless the Secretary of the relevant service has authorized it by regulations.
Each service has established a BCNR process in order to correct military records, where such action is necessary or appropriate to correct an error or an injustice. These boards cannot set aside a court-martial conviction, but they may reduce or modify a sentence as a matter of clemency, even if the sentence has already been executed. Sometimes, such BCNR sentence reductions or clemency can impact eligibility for employment or benefits. A successful record correction will depend on meticulous preparation, as well as a full understanding and command of the corresponding legal authorities and specific time limits for each jurisdiction.
All branches of the military consider you to have a strong case for a BCNR discharge upgrade if you can show your discharge was connected to any of these categories:
These categories, however, are not exclusive, and there are many other legitimate reasons to correct your military record in order to address an error or injustice.
