UCMJ Offenses

The Uniform Code of Military Justice is a harsh machine.  An initial allegation or suspicion can quickly take on a life of its own.  Why is that?  You need to think about who is working in the legal office.  Often times, these are people who go straight from home, to college, to law school, and then straight into the JAG Corps.  That gives you a lot of academic experience, but not much real world experience.  These officers make rank far more rapidly than other officers because of their law degrees, and at some point almost every JAG starts believing their own performance reports.

Your average JAG officer spends anywhere from 2-4 years at the base legal office.  So the officers who are making initial determinations, preparing your case for trial, and advising your leadership, typically have less than  four years of experience.  That is pretty chilling when you consider their decisions and guidance have such a tremendous impact on your life.  Now every legal office is run by a Staff Judge Advocate, who guides and directs those younger officer.  Maybe that SJA has litigation experience, or maybe they have spent most of their career in Contracts, or Operations, or some other specialty and they are in over their head when it comes to military justice.  That is how you can get legal offices making mountains out of molehills.  These aren't bad people, quite the contrary, but they don't necessarily have the experience required to make the best decisions.  Everything that has led to their position throughout their career though will give them immense confidence that they are doing the right thing.  These are often the people making decisions in your case.  

Now, these are broad generalizations, and the JAGs dealing with your case could be really effective, have the right experience, or have pre-service experience that frankly sets them apart.  We should never underestimate our opponent.  However, at the same time, we should never overestimate our opponent.  I have won three full confession cases, and two of them have been at the hands of young JAGs.  New and inexperienced litigators can be fantastic, but they are the exception and not the rule.  Don't be so quick to roll over for them, because they still have the burden to prove their case, and sometimes have no idea how to do that.  Every case is different, and every JAG is different, but I have seen a consistent issue in the past of legal offices not knowing the value of their case, and not having the litigation skills to get the evidence they need into evidence, or argue effectively to a panel (jurors) that they have met their case beyond a reasonable doubt.  Don't give up the fight when you have so much to lose.  

The military is going to provide you with detailed military counsel.  Some of these counsel are really good.  But that doesn't mean they all are.  Defense counsel come from the legal offices, so they have anywhere from 2-6 years of experience before they are tasked with defending your rights.  When I was active duty, I came in with five years of litigation experience in major cases like rape, robbery, and murder before I was in in the military.  I was selected to be a defense counsel after a year and a half in the legal office.  Most of my colleagues in the defense community at the time had between 2-3 years experience before they were selected.  

I cannot tell you how good of a litigator your detailed defense counsel is.  I can tell you they do not have 20 years of experience.  Realistically, every great litigator in the military ranks out of the courtroom, meaning instead of continuing to litigate, they grow into supervisory positions instead.  You should consider this before you trust your entire fate to a detailed military counsel.  They could be fantastic, or they could just be filled with self confidence.  

My approach for detailed military counsel is that we want to work with them rather than cut them out.  First of all, I will always take more brains attacking a problem, and welcome their help. After working with them, maybe I can see they are good and will give them some responsibilities on the case.  It depends on them.  When I was a detailed military counsel, one of my giant frustrations was that private counsel would come into a case, collect a check and then make me do all the work.  Because of that, my approach is to be the private counsel who does all or at least the lion's share of the work. I have had multiple detailed military counsel tell me after a case that I am the only civilian counsel to actually do all the work rather than leaving it to them.  

At the end of the day, you need to go with the attorney you think is best for you. Maybe you got lucky and got a great detailed military counsel. If you trust them, that is fantastic and I wish you good luck.  If you have concerns, we are here to help.  Your job, your livelihood, your future, and your pension are all at stake. Make sure you trust the attorney in your case. 

The most serious proceeding you can face is a courts-martial.  There are three basic levels of courts-martial, a general, special, or summary.  There are no felonies or misdemeanors in the uniform code of military justice, but the way states tend to interpret these different venues is that a general courts-martial is roughly equivalent to a felony, a special is roughly equivalent to a misdemeanor, and a summary is roughly equivalent to either a misdemeanor or infraction.  

A general courts-martial begins with a preferral of charges.  That is when you get called into your commander's office in service dress.  It is a one-way conversation where you are formally accused.  Members of the legal office are there, and they are all watching and judging to see how you react.  Maintain your professionalism.  There is nothing you can say that will change what is happening, and you should not make any comments.  Let your lawyer do their job at this point.  Then the preliminary hearing is scheduled.  A preliminary hearing is an evidentiary hearing in front of a neutral officer to provide a recommendation to the convening authority about whether your case should be referred to a courts-martial, and if so what charges, and what kind of courts-martial.  The decision is not binding, it is merely a recommendation.  I have seen more than my fair share of legal offices completely ignore the preliminary hearing report, and the convening authority still proceeds towards a courts-martial.  However, if the hearing officer is an experienced litigator, sometimes their recommendation is given significant weight.  Once the convening authority decides to proceed towards trial, we then move on to scheduling the trial.

A special courts-martial does not have a preliminary hearing.  The preferral and referral of charges happens roughly at the same time.  There are limits on the punishment for a special courts-martial because they do not offer the same procedural safeguards as a general courts-martial.  But a special courts-martial is still in front of a military judge, and a panel of either officers, enlisted, or both.  

Going to trial requires training and experience. It is not where amateurs thrive. Inexperienced litigators can succeed, but the odds are stacked against them. The question you need to ask yourself is whether you want to be the person they get experience on, or whether you want an experienced attorney already to put you in the best position possible.  

An Article 15, or Captains Mast if you are in the Navy, is fundamentally a forum choice.  When you are accused by your commander of committing a crime, you can either accept the Article 15 and keep the matter in the hands of your commander, or you can demand a courts-martial.  This is not a decision to take lightly.  If you accept the Article 15, you need to expect to be found guilty by your commander. I can only think of one commander that offered an Article 15 to someone, and then found that person not guilty.  Those are not great odds.  If you demand a courts-martial, you need to really understand what you are doing. An article 15 is not a federal conviction, but a courts-martial is if you lose. You need to weigh the pros and cons while you are making that decision, and think about the impact of an Article 15 on your career, your retirement, and your reputation. You are the only person who can make that decision.

A bizarre thing I have seen with the Navy and Marine Corps is a trend of offering people Article 15 cases for drug offenses, then when the client demands a courts-martial, they refuse and simply take a client to a discharge board where there is a lower standard of proof, and no rules of evidence. I have advised a lot of commanders about Article 15's, and that advice is consistently that you never offer an Article 15 if you are not willing to go to a courts-martial.  The reason is that if someone calls your bluff, and you fold, it destroys good order and discipline.  How can anyone under your command trust you if you offered an Article 15 but then are afraid to try and prove the charges beyond a reasonable doubt with full procedural rights.  You need to be aware of that if you are offered an Article 15.  

This is a huge decision, and you need an experienced attorney to help you understand your rights.

If you are eligible for a discharge board, if the military is trying to end your military career, you can either roll over and let them, or you can fight.  A Discharge board is not a punishment, but it is an unceremonious exit for your military career. It affects your retirement, your veterans benefits, and your access to the GI Bill. The government can either request an honorable, general (under honorable conditions), or an under other than honorable conditions discharge (UOTHC).  This is not a punitive discharge like a dishonorable or bad conduct discharge like you could get at a courts-martial, but it will still follow you for the rest of your life and will be on your DD-214. An honorable discharge will preserve your veterans benefits, but you will lose your retirement.  A general discharge largely preserves your veterans benefits, but you lose your GI Bill.  A UOTHC takes away as many benefits as possible for you and is designed for the most serious cases that are still short of a courts-martial.  For example, if you are accused of sexual assault and they decide not to take your case to trial, they could still want to take you to a discharge board and ask for a UOTHC.

Discharge boards have very few rules of evidence, and usually all relevant evidence is presented to the panel members.  We do not have a military judge to keep out improper evidence, or illegally obtained evidence, so you need an experienced litigator who has the experience to navigate these much more chaotic proceedings.  

A notification discharge is used when you do not have enough military service yet to give you the right to a discharge board before they can kick you out of the service.  Your due process is that you have the right to make a written response.  It is rare that a commander is going to be swayed by your response, but it can happen.

During all of my times working in legal offices, I always saw the same pattern with responses that almost always began with "I was born in Skokie Illinois, the youngest of 5 children ...".  I understand the purpose is to humanize you to your commander who you likely have little interaction with.  But since everyone says the same thing, it creates the opposite effect.  When I became a detailed military counsel, I found templates on the computer that called for the exact same cookie cutter approach, and immediately saw what the problem was.  I immediately deleted all of those templates, but the tradition remains.  If you want to be take seriously, you need help preparing a response that is personal, addresses your commander's concerns, and gives you a fighting chance.  

We can never predict what your commander will do, but if you follow the template from your detailed military counsel, plan on failing to convince your commander. 

An Article 138 complaint is a formal complaint to your commander that they have wronged you.  Your detailed military counsel cannot help you draft one as they are not permitted to do so under their operating instructions.  When you draft a complaint, it needs to have evidence to make a compelling case.  The complaint goes directly to your commander, who either decides to grant you relief, or deny your request.  If they deny your request, it goes to their commander for them to review.  

I have consistently seen commanders support their subordinate commanders, even if they were displeased with the decision.  An Article 138 complaint can be effective, but it can also be given a cursory response to comply with the rules.  Their response is always going to depend on the circumstances, the evidence, and your leadership. This could be your only opportunity though to communicate how you were wronged up the chain of command before it is too late and you are labelled a problem.   

Receiving administrative paperwork can feel like a low level event.  It is your unit building a record on you though.  When I worked for legal offices, whenever a unit was asking to do an Article 15 or a discharge, we always wanted to look at the administrative paperwork they had offered you before. Oftentimes, we saw people care so little they couldn't even submit a response.  If you don't care about your career, the legal office cannot care more than you.  I also saw plenty of promises that were clearly never kept.  Responses are often full of spelling errors, grammar errors, or other mistakes which should never happen when you know they are being submitted to your leadership or senior leaders.  

If you are facing administrative paperwork, and you don't want to follow the template and have your response look like every other response, you may need an experienced lawyer on your side to help you.