Travis Law Group | Military Law FAQs
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Military Law FAQs

What is an Article 15 nonjudicial punishment and what is the procedure once it is received?

For minor offenses, commanders will generally impose punishment under Article 15, UCMJ. Procedurally, the commander will review the file, then sign the Article 15. Though a senior NCO will often do the initial reading, the commander must have already signed the paperwork, and will ultimately conduct the hearing.

 

Upon being read an Article 15, the service member is escorted with the packet to see a military defense counsel. Unless you are a senior enlisted (E-7 or above) or officer, you will typically watch a video with other service members, then have the opportunity to consult with a military attorney if you have further questions. You can also hire a civilian defense attorney. The lawyers at Travis Law Group are former military JAG officers experienced in military law and the Article 15 procedures. They can discuss your options with you before you make any decisions.

 

Accepting Article 15 jurisdiction does NOT mean you are pleading guilty or accepting guilt. You still have the right to put on a defense, call witnesses, and establish your innocence. Though the commander must find you guilty beyond a reasonable doubt, the rules of evidence do not generally apply to Article 15 proceedings.

 

You have the right to reject an Article 15 and demand a trial by court-martial (the exception being sailors aboard a ship). Doing this may or may not result in court-martial charges, depending upon the strength of the evidence against you, and your prior disciplinary record. Think carefully before rejecting an Article 15, and never do it without personally talking to an attorney.

What are the different types of discharges?

There are punitive and non-punitive discharges. A punitive discharge is the result of some sort of court-martial process and include a bad-conduct discharge and dishonorable discharge. Non-punitive discharges include honorable, general, and other than honorable discharges. Service members leaving the military by their own decision generally receive honorable discharges, although in some circumstances can receive general discharges. Service members facing an adverse separation process, meaning that the military decides their services are no longer desired, generally receive a general or other than honorable discharge based upon the type of separate proceeding and the alleged conduct. Such separation proceedings include a Show Cause Board and well as Separation Boards based upon more serious conduct.

What rights are available when a service member is questioned?

Often called the military version of “Miranda”, Article 31 of the UCMJ applies to any questioning of a service member suspected of an offense, even if you are not in custody. In short, you have the right:

1. To be advised of the offense you are suspected of committing,
2. To be advised of your right to remain silent, and
3. To be advised that anything you say may be used against you.

MPs, CID, OSI, SF, etc. are trained interrogators, so don’t try to outsmart them. Be wise. Think before you talk.

What does it mean to be “court-martialed?”

Court-martial charges are reserved for more serious offenses or personnel who allegedly commit repeat offenses. If charges are preferred against you, you absolutely must consult with an attorney – too much is at stake! There are three broad levels of court-martial:

 

General Court-Martial: This is the highest level, with whatever maximum punishment is allowed by the UCMJ for each offense (i.e. could be death, or life imprisonment, dishonorable discharge, total forfeiture of all pay and allowances, and reduction to E1 if enlisted). Before charges can be referred to a general court-martial, you have the right to an Article 32 pretrial investigation. This is analogous to a civilian preliminary hearing, but you have more rights to confront witnesses, see the evidence against you, and, if tactically appropriate, present a defense. The trial itself is presided over by a military judge (typically a JAG O-5 or O-6), and you have the right to a panel of at least five officers, or officers and enlisted combined (typically, a panel will start with at least 10 members before challenges).

 

Special Court-Martial: The maximum punishment is currently 12 months imprisonment, reduction to E-1, forfeiture of 2/3 pay per month for 12 months, and, a bad conduct discharge (if referred to a court-martial authorized to adjudge a BCD). Unlike a general court-martial, a special court-martial does not require an Article 32 pretrial investigation. The trial itself is presided over by a military judge (typically a JAG O-5 or O-6), and you have the right to a panel of at least three officers, or officers and enlisted combined.

 

Summary Court-Martial: Used for more minor criminal offenses, a summary court-martial is sometimes used as a replacement for a field grade Article 15.  You have the right to reject summary court jurisdiction, in which case, the charges may be referred to a special or general court-martial. The maximum punishment is analogous to a field grade Article 15, though confinement may be a potential punishment. Unlike the higher level courts, you have no right to a panel – the case is heard before an officer (typically an O-3 or O-4 line officer, not a judge). You also have the right to hire civilian counsel of your own choice, but typically not the right to have a military defense counsel represent you at the hearing.

What is a military search and does a service member have to comply?

Soldiers, sailors, airmen and marines still possess a 4th Amendment right against unlawful search and seizure, but because of the unique nature of the military, this right is diminished. Commanders can order random or 100% inspections of areas under their control (i.e. barracks and parking lots). The stated purpose of inspections is to preserve good order and discipline, not to gather evidence, which means they cannot be used as a pretense for searching specific service members.

 

There is distinction between a military search to check the general welfare of the unit versus to search your particular items or barracks when you have been suspected of an offense. If they are searching you specifically, they must have probable cause to believe that an offense has been committed and that evidence will be found. Absent certain exceptions, they must present a warrant to search you and your possessions. Generally you do not have the authority to decline a general welfare inspection or search; but you may have the right to decline if the search is based upon the belief that you have committed an offense, possess the evidence they seek, and they don’t have a warrant. If you are under suspicion of an offense and believe a search is possible, then seek legal advice. The attorneys of Anderson & Travis can provide further specific legal advice regarding this issue.

What is a service member’s right to have an attorney?

As soon as you are advised that you are suspected of committing an offense, stop talking and request a lawyer. When they advise you that anything you say can be used against you, they mean it. The military provides its personnel with defense counsel free of charge. You have the right to hire a civilian defense counsel of your own choice, keep your military counsel, or have both on the case. The choice you make will depend upon the complexity of your case, your military counsel’s level of experience, and how comfortable you feel with your military or civilian lawyer.

Can a service member refuse a urine test?

Under the Constitution and military law, a urinalysis is regarded as a search. However, just as commanders can order barracks inspections, that same commander can order a random urinalysis or a 100% urinalysis. Unless the commander has probable cause, he/she cannot target a specific service member. So if asked for consent to a urinalysis, just say no! And like a search, if you are ordered to submit anyway, go ahead and do it – your attorney can advise you later whether it was lawful. The alternative is worse – refusing a urinalysis could lead to punishment for violating a lawful order or, in limited situations, forcible extraction of your urine with a catheter. If you are enrolled in ADAPT (formerly ADAPCP) or another service’s drug & alcohol program, military regulations require periodic urinalyses and provide that the results may not be used against you punitively. Consult with an attorney if you pop positive while enrolled.