Frequently Asked Questions (FAQs)
No. Under Article 31, Uniform Code of Military Justice (UCMJ), you cannot be compelled, forced or otherwise “ordered” to talk to anyone, including your commander, about criminal allegations that might later be used against you. If you are suspected of a crime and your chain of command (OSI, CID, NCIS, CGIS, or foreign agents) attempt to speak with you, they must first promptly inform you of your right to consult with a lawyer. If one is not immediately available, you are completely within your constitutional right to remain silent until provided with legal counsel.
The military justice system actually has several advantages over the civilian criminal justice system. Most notably, you have the right to demand an Article 32 hearing prior to a case being referred to a General Court-Martial. This hearing is akin to a federal grand jury proceeding, with one significant addition. You are free to openly contest the Government’s version of events before the case is even set for trial. Accordingly, you have the right to call witnesses, offer evidence favorable to your case, confront your accuser, discredit the Government’s case, and/or generally offer compelling evidence in mitigation or extenuation that might persuade the convening authority to send your case to a misdemeanor (Special Court-Martial) level court.
If your son is in military custody he must be brought to trial within 90 days. If he is out-of-custody, the military has 120 days to bring him to trial after the service of the charges. The Government’s failure to meet the above timelines could result in the dismissal of his charges.
First and foremost, a General Court-Martial conviction is the equivalent of a federal civilian felony conviction. However, if the imposed confinement is less than 1-year certain States “may” regard the conviction as a misdemeanor. Even so, unless your court-martial is overturned on appeal, the conviction will likely remain a permanent part of your civilian record. Other potential adverse consequences include, but are not limited to: loss of pay, loss of security clearance, loss of health and educational benefits, loss of retirement eligibility, loss of right to travel abroad, loss of right to vote, loss of right to carry a firearm, and in sexual assault cases, the loss of privacy and the significant social stigma associated with sex offender registration.
Each military service has boards that decide upon requests to upgrade and/or vacate both punitive and administrative discharges. Potential available legal remedies, if granted, include changing the reenlistment code to allow reenlistment, improving the characterization of the discharge and/or favorably modifying the narrative reason for the involuntary separation.
She has a lot of options and associated rights. She may retain civilian counsel, ask for evidence, call witnesses and seek to discredit the Government’s case. Administrative separation boards are rather informal, but still often play-out as “mini-trials.” Military judges are not appointed to preside of these boards, however. Instead, typically three board members, none of them legally trained, will sit on her case; and ultimately make factual findings and concurrent recommendations. Simply stated, they will decide whether your daughter should be retained in the service. If they decide that she should not, they then recommend the type of discharge she should receive. There are three types of administrative discharges she could receive: an Honorable Discharge, General under Honorable Conditions Discharge; or an Other than Honorable Discharge. Notably, please be mindful she will be able to use her GI Bill only if she receives an Honorable Discharge.
The Army Clemency and Parole Board is responsible for handling all claims associated with clemency, parole and mandatory supervised release hearings for eligible prisoners. For instance, in soldier cases Army Regulation 15-130 sets forth the parameters for relief.
Civilian counsel and military defense counsel will often work together on his court-martial case. However, civilian counsel will likely take the lead (termed “first chair”) during the Article 32 hearing, all pre-trial hearings and during most of the trial.
You should first make a request for reconsideration. If that proves unsuccessful, then request to appear before a formal board to demonstrate that you are either fit for duty, or deserve a higher disability rating. Expert witness testimony will prove critical in this regard, so make sure to get good experts on your side to clearly demonstrate the merits of your case. You may also seek review of an adverse decision by the formal board with the Physical Review Counsel, and then finally the Physical Disability Appeal Board.