UCMJ Offenses

The Military Justice Machine

The Uniform Code of Military Justice (UCMJ) is a harsh machine. An initial allegation or suspicion can quickly take on a life of its own. Why is that? To understand the why, you have to consider who is working in the legal office. Often, these are individuals who went straight from home to college, to law school, and then directly into the JAG Corps. While they possess academic credentials, they often lack real-world experience. Furthermore, these officers promote more rapidly than their officer peers due to their professional degrees, and over time, many JAGs begin to believe their own performance reports.

The average JAG officer spends only two to four years at a base legal office. This means the officers making initial determinations, preparing your case for trial, and advising your leadership typically have less than four years of experience. It is a chilling reality when you consider that their guidance has a tremendous impact on your life and career. While every legal office is overseen by a Staff Judge Advocate (SJA), that SJA’s background may be in Contracts, Operations, or another specialty rather than litigation. When an SJA is in over their head regarding military justice, the office begins making mountains out of molehills. These are not bad people, but they often lack the seasoning required to make the best decisions, despite having the immense confidence that their rank suggests.

Know Your Opponent

These are, of course, generalizations. The JAGs handling your case could be highly effective or possess pre-service experience that sets them apart. We should never underestimate our opponent; but we should never overestimate them either. I have won three full confession cases, and two of those victories were at the hands of young, inexperienced JAGs. While some new litigators are fantastic, they are the exception, not the rule.

Do not be so quick to roll over. The prosecution still carries the burden of proof, and in many cases, they lack the litigation skills to get their evidence admitted or to argue effectively to a panel (jurors) that they have met the standard of beyond a reasonable doubt. Every case and every JAG is different, but I have seen a consistent pattern of legal offices overvaluing their cases while lacking the skills to prove them. Don't give up the fight when you have so much to lose.

The Reality of Detailed Military Counsel

The military will provide you with detailed military counsel. While some of these attorneys are exceptionally talented, that is not a guarantee across the board. Most defense counsel are assigned from base legal offices, meaning they typically have between two and six years of legal experience when they are tasked with defending your rights.

When I entered active duty, I brought five years of intensive litigation experience in major civilian cases, including rape, robbery, and murder. I was selected as an Area Defense Counsel after only eighteen months in the JAG Corps. At that time, most of my colleagues in the defense community had only two to three years of total legal experience before being selected for that role.

While I cannot speak to the specific skill level of your assigned counsel, I can tell you that they do not have twenty years of experience. In the military, most great litigators eventually rank out of the courtroom, moving into supervisory positions rather than continuing to try cases. You should consider this before trusting your entire fate to a detailed counsel who may be fantastic, or may simply be filled with unearned confidence.

A Collaborative Approach

My approach to working with detailed military counsel is collaborative, not exclusionary. I welcome more brains attacking a problem. If I see that a detailed counsel is capable and driven, I will give them meaningful responsibilities on the case. However, the heavy lifting remains my responsibility.

When I served as a detailed military counsel, my greatest frustration was private attorneys who would collect a check and then expect me to do all the work. Because of that experience, I make it a point to be the private counsel who handles the lion’s share of the litigation. I have had multiple JAGs tell me after a case that I was the first civilian attorney they worked with who actually did the work rather than delegating it to them.

Your Future is the Priority

At the end of the day, you must choose the attorney you believe is best for you. If you have been assigned a great detailed military counsel and you trust them, I wish you the best of luck. But if you have concerns, we are here to help. Your job, your livelihood, your future, and your pension are all on the line. Make sure the person standing next to you is someone you trust implicitly.

Understanding the Levels of Court-Martial

The most serious proceeding a service member can face is a court-martial. While the Uniform Code of Military Justice (UCMJ) does not categorize crimes as felonies or misdemeanors, civilian jurisdictions generally interpret the three levels of court-martial as follows:

• General Court-Martial: Roughly equivalent to a felony conviction.
• Special Court-Martial: Roughly equivalent to a misdemeanor conviction.
• Summary Court-Martial: Roughly equivalent to a misdemeanor or an infraction.
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The General Court-Martial Process

A General Court-Martial begins with the preferral of charges. This typically occurs when you are summoned to your commander’s office in service dress. It is a one-way conversation where you are formally accused. Members of the legal office will be present, observing your reaction. Maintain your professionalism. There is nothing you can say in that moment to change the outcome, and you must not make any comments. Let your attorney do their job.

Following preferral, an Article 32 Preliminary Hearing is scheduled. This is an evidentiary hearing held before a neutral officer who provides a recommendation to the Convening Authority. They recommend whether the case should be referred to a court-martial and, if so, which charges and which level of court-martial are appropriate. This recommendation is not binding; I have seen many legal offices ignore a Preliminary Hearing Report entirely. However, if the hearing officer is an experienced litigator, their recommendation may carry significant weight. Once the Convening Authority decides to proceed, the case moves to trial scheduling.

The Special Court-Martial

A Special Court-Martial does not require a preliminary hearing; preferral and referral of charges happen nearly simultaneously. Because it does not offer the same procedural safeguards as a General Court-Martial, there are strict limits on the punishments that can be adjudged. However, a Special Court-Martial still takes place before a military judge and a panel consisting of officers, enlisted members, or a combination of both.

The Stakes of Inexperience

Success at trial requires specialized training and deep experience; it is not an environment where amateurs thrive. While inexperienced litigators can succeed, the odds are heavily stacked against them. You must ask yourself: do you want to be the case they practice on, or do you want an experienced attorney who is already prepared to put you in the best position possible?

The Article 15: A Strategic Forum Choice

An Article 15, referred to as a Captain’s Mast in the Navy or Coast Guard, is fundamentally a choice of forum. When you are accused of a crime by your commander, you generally have two options: accept the Article 15 and leave the matter in your commander's hands, or demand a court-martial.

This is not a decision to be taken lightly. If you accept the Article 15, you should expect to be found guilty; in my career, I can recall only one instance where a commander offered an Article 15 and subsequently found the member not guilty. Those are not favorable odds. Conversely, if you demand a court-martial, you must fully understand the stakes. While an Article 15 is an administrative punishment and not a federal criminal conviction, a conviction at a court-martial is a permanent federal record. You must weigh the impact of an Article 15 on your career, retirement, and reputation against the significant risks of a trial. You are the only person who can make this decision.

The Bluff and the Discharge Board

A troubling trend I have observed, particularly within the Navy and Marine Corps, involves drug offenses. Commanders may offer an Article 15, but if the member calls their bluff by demanding a court-martial, the command may withdraw the charges only to initiate an Administrative Discharge Board. These boards operate under a lower preponderance of the evidence standard and lack the strict rules of evidence found in a courtroom.

Throughout my career, my advice to commanders has been consistent: Never offer an Article 15 if you are not prepared to proceed to a court-martial. When a commander folds after a member calls their bluff, it undermines good order and discipline. If a commander is unwilling to prove charges beyond a reasonable doubt in a forum with full procedural rights, it erodes the trust of everyone under their command. You must be aware of these dynamics when an Article 15 is placed in front of you.

Experienced Guidance

This is a monumental decision. You need an experienced attorney to help you evaluate the evidence, assess the risks, and understand your rights before you sign.

Administrative Discharge Boards: Fighting for Your Future

If you are eligible for an Administrative Discharge Board, meaning the military is attempting to end your career, you have a choice: you can roll over and accept their decision, or you can fight. A discharge board is not technically a punishment, but it is an unceremonious exit that can strip you of your retirement, your veterans' benefits, and your access to the GI Bill.

The government generally requests one of three characterizations of service:

• Honorable: Preserves most veterans' benefits but typically results in the loss of your retirement.

• General (Under Honorable Conditions): Largely preserves medical and veterans' benefits but results in the forfeiture of your GI Bill.

• Other Than Honorable (OTH): Designed for the most serious allegations short of a court-martial, an OTH characterization is intended to strip away as many benefits as possible.

While these are not punitive discharges (like a Dishonorable or Bad Conduct Discharge issued by a court-martial), they will follow you for the rest of your life and remain permanently on your DD-214.

The Chaos of the Boardroom

Unlike a court-martial, discharge boards have very few rules of evidence. Almost all relevant information, even that which might be inadmissible in a real courtroom, is typically presented to the panel members. There is no military judge to exclude improper or illegally obtained evidence.

Navigating these proceedings requires an experienced litigator who understands how to manage a chaotic legal environment. You need someone who can effectively counter prejudicial information and present a compelling case for your retention or, at the very least, a characterization that preserves your hard-earned benefits.

Notification Discharges: Your Only Chance to Speak

A Notification Discharge is utilized when a service member has not yet accrued enough time in service to be entitled to an Administrative Discharge Board. In these cases, your due process is limited: you have the right to submit a written response. While it is rare for a commander to be swayed by a written statement alone, it is not impossible—provided the response is handled correctly.

The Cookie-Cutter Trap

During my years working in base legal offices, I noticed a repetitive and ineffective pattern in these responses. They almost always began with a variation of: "I was born in Skokie, Illinois, the youngest of five children..." I understand the intent is to humanize the member to a commander they likely rarely interact with. However, because nearly everyone uses this same opening, it has the opposite effect, it makes the member look like just another file on a desk.

When I became a detailed military counsel, I discovered the source of the problem: templates on the office computers that mandated this exact approach. I immediately deleted them, but the tradition persists in many legal offices today.

A Fighting Chance

If you want your commander to take your response seriously, you need an advocate who will help you prepare a statement that is personal, addresses your commander’s specific concerns, and gives you a genuine fighting chance. We cannot predict exactly what a commander will do, but if you follow the "Skokie, Illinois" template provided by a busy defense office, you should plan on failing to convince them. We are here to ensure your voice is actually heard.

The Article 138 Complaint: Holding Leadership Accountable

An Article 138 Complaint is a formal mechanism used to notify your commander that they have wronged you. Crucially, your detailed military counsel is generally prohibited by their operating instructions from helping you draft one. This means that if you want to hold leadership accountable, you are often on your own, unless you have an experienced private attorney.

The Process and the Stakes

To be effective, an Article 138 complaint must be supported by evidence that makes a compelling case. The complaint is submitted directly to your commander, who then decides whether to grant relief or deny your request. If they deny it, the matter is forwarded to their commander for a higher-level review.

In my experience, superior commanders tend to support their subordinates' decisions, even if they are privately displeased with them. While an Article 138 can be a powerful tool, it is often met with a cursory response designed merely to comply with procedural rules. Success depends entirely on the strength of your evidence, the specific circumstances of the wrong, and the temperament of your leadership.

Your Window of Opportunity

Despite the challenges, this may be your only opportunity to communicate how you were wronged to the higher chain of command. It is a critical first strike that allows you to frame the narrative before you are unfairly labeled as a problem by your immediate leadership. We are here to help you draft a professional, evidence-based complaint that demands to be taken seriously.

Administrative Paperwork: The Paper Trail to Discharge

Receiving a Letter of Reprimand (LOR) or an Administrative Admonition can feel like a minor, low-level event. In reality, it is your unit building a formal record against you. During my time in base legal offices, whenever a unit requested an Article 15 or an administrative discharge, the first thing we reviewed was the subject's history of administrative paperwork.

I frequently saw cases where members cared so little about these minor events that they didn't even bother to submit a response. If you don't care about your career, the legal office certainly won’t care more than you do. I also saw responses filled with spelling and grammar errors, mistakes that should never occur when a document is being reviewed by your commander or senior leadership. Furthermore, I saw many responses that contained promises that a service member either did not, or could not keep.

Don't Be a Statistic

If you are facing administrative paperwork and want to ensure your response doesn’t look like every other cookie-cutter statement, you need an experienced lawyer on your side. A well-drafted, professional response can break the momentum of a unit trying to build a case against you. We help you submit a response that is polished, personal, and designed to protect your long-term career.