Frequently Asked Questions (FAQs)

Below you will find answers to frequently asked questions (FAQs) from service members and veterans.

Table of Contents

Military Justice Questions

Should I hire a civilian military defense attorney?

Hiring a military defense attorney to represent you in military matters is an important and personal decision. Your future reputation, career, and freedoms may be on the line. You will likely only have one opportunity to get through your court-martial, ADSEP Board, or NJP unscathed. Unless you’re a judge advocate in the military who has helped hundreds of service members with military justice issues, it is strongly advised to work with an experienced military attorney who has. You also need someone who is a team builder, rather than a divisive player — you need someone who works with your military counsel, not around them.

What are my Article 31(b) rights?

Article 31(b), UCMJ provides “No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”

in summary, Article 31(b) rights allow service members to remain silent being questioned by another service member or military law enforcement agent who suspects them of a crime. Furthermore, that person asking the questions must warn the service member of their right to remain silent.

Unfortunately, statements made (oral or written) without first receiving an Article 31(b) warning may still be used against the service member — just not at a court-martial. Some commands will ask questions about crimes and then automatically send the case to an administrative hearing. It’s wrong, but also the current state of the law.

It is best to remain silent and invoke your Article 31(b) rights when being asked questions until you have had time to speak with an attorney about your situation.

Investigations

Do I have to talk to the investigating officer?

No, service members are not required to talk with the investigating officer. Service members accused of a crime under the UCMJ are protected by Article 31(b), UCMJ, the right to remain silent. While service members may be ordered to attend a meeting or appear in person, they are not required to say or write anything incriminating during the investigation.

Do I have to talk with Law Enforcement? NCIS/OSI/CID/PMO?

No. Article 31(b) protects your right to remain silent during a law enforcement investigation. While your command may require you to go to NCIS/OSI/CID/PMO to meet with them, you do not need to say anything incriminating.

Our free resource can help stop the interrogation in its tracks.

Do I get a JAG for the investigation?

Most judge advocates (JAGs) only get assigned to your case once charges have been preferred or you’ve received a notice of separation with a board. While there are exceptions, most service members do not get a JAG for the investigation.

However, service members always have the right to counsel, which includes working with a military defense attorney.

Article 32 FAQs

What is an Article 32 Hearing?

An Article 32 hearing is where a preliminary hearing officer will determine (a) whether or not the specification alleges an offense under this chapter; (b) whether or not there is probable cause to believe that the accused committed the offense charged; (c) whether or not the convening authority has court-martial jurisdiction over the accused and over the offense; (d) make a recommendation as to the disposition that should be made of the case.

What evidence do I present at an Article 32?

Depending on your case and your defense strategy, you and your attorney may choose to present documentary evidence or call witnesses.

How long is the Article 32?

An Article 32 hearing will last anywhere from an hour to several days, depending on the case and the evidence.

Do I need an attorney for the Article 32 hearing?

Yes. It is highly recommended to have an attorney representing you. The government will have an attorney on their side.

Court-Martial FAQs

What is a court-martial?

A court-martial is a military criminal trial. The Uniform Code of Military Justice controls who can convening a court-martial, who can serve on one, and who is subject to its jurisdiction.

What are the three types of courts-martial?

General, Special, and Summary courts-martial.

Is a court-martial a felony?

While there is not exact match for what is a felony, a general guideline is convictions at a general court-martial are considered felony convictions.

What is the maximum punishment at a special court-martial?

The maximum punishment at special court-martial is the jurisdictional maximum: reduction to E-1, one year confinement, forfeitures of two-thirds pay and allowances for 12 months, and a bad conduct discharge (BCD).

A special court-martial judge alone is a different forum with lower punishments: reduction to E-1, six months confinement, forfeitures of two-thirds pay and allowances for six months, but no bad conduct discharge.

What is the maximum punishment at a general court-martial?

The maximum punishment at a general court-martial depends on the offense but could include a dishonorable discharge, forfeitures of all pay and allowances, reduction to E-1, and confinement for life, or even death.

What is a preferred charge?

A preferred charge is an allegation written down onto a charge sheet and sworn to by an accuser before a commissioned officer of the military. See R.C.M. 307(b), Manual for Courts-Martial. However, not all preferred charges go to a court-martial for disposition.

What does a referred charge mean?

When a convening authority reviews the preferred charge and believes it should be tried at a court-martial, the convening authority will “refer” the charge to a court-martial. Essentially, the convening authority will send the charges to a court-martial.

When do I get a JAG assigned to my case?

While each service has its own guidelines, the military will detail a judge advocate to your case when charges have been preferred.

What are the military rules of evidence?

The military rules of evidence are rules that guide what evidence is admissible before a court-martial. The rules are analogous to the federal rules of evidence, but have some military specific distinctions. Just because evidence is available does not mean it will be admitted at trial.

If I am innocent, should I testify?

This is a highly personal decision and should only be made after fully consulting with a qualified military defense attorney. While it may seem like a straightforward question, remember the burden is on the government to prove its case. It is not the responsibility of the accused to prove their innocence.

Can I appeal a court-martial conviction?

Yes. While the rules are different depending on what type of court-martial occurred, the general rule is you can appeal a court-martial conviction.

What are the types of military discharges?

The most common military discharges are Honorable, General (under honorable conditions), Other-Than-Honorable | Bad Conduct Discharge (BCD), Dishonorable Discharge (DD). There is also a Dismissal for Officers. The three administrative discharges Honorable, General, and OTH can not be awarded at a court-martial. Additionally, only a general court martial may sentence a service member with a dishonorable discharge or dismissal.

Administrative Separation (ADSEP) FAQs for Enlisted

What happens at an ADSEP Board?

An ADSEP Board is an employment hearing to determine if the service member (a) committed the alleged misconduct warranting separation; (b) whether the service member should be retained or separated from the service; (c) if separation is necessary, the board will recommend the characterization of service.

The board will start with Voir Dire, where members will answer questions from counsel to ensure the board members are fair and impartial.

The representative from the Government will give an opening statement followed by an opening statement from the counsel for the Respondent.

The members will then review documentary evidence presented by both parties and return to open court to hear testimony from witnesses from both sides (if the Respondent would like to present testimonial evidence).

After all evidence has been presented, the Government Recorder will present a closing argument, followed by a closing argument from Counsel for the Respondent, and possibly a Government rebuttal.

The members will deliberate and decide on the three questions and read their findings in open court.

Board of Inquiry (BOI) FAQs for Officers

What happens at a BOI?

A Board of Inquiry is an employment hearing to determine if the officer (a) committed the alleged misconduct warranting separation; (b) whether the officer should be retained or separated from the service; (c) if separation is necessary, the board will recommend the characterization of service.

Because each service invests hundreds of thousands of dollars into the development of an officer, the proceeding is serious. Only senior officers will be allowed to sit as members of the panel. They must outrank the officer undergoing the BOI. The process is recorded and a transcript is produced.

NJP FAQs

Is NJP (non-judicial punishment) the same as Article 15?

Yes. Article 15, UCMJ is the statute describing the powers afforded to a commander for non-judicial punishment. Article 15 is designed to handle minor misconduct without convening a criminal trial at court-martial.

What are my options at NJP?

Service members facing NJP need to answer up to two questions. First, accept or deny? Do you want to accept the forum of NJP or would you rather deal with the minor misconduct allegation in a different forum? Other forums may include courts-martial, but it could also include an administrative separation or negative counseling.

If a service member accepts the forum of NJP, the second question is answer is whether to plead not-guilt or guilty to the allegations. As this decision has severe consequences for re-enlistment, reputations, and careers, it is important to speak with an attorney before doing so.

For service members thinking about pleading guilty to the minor misconduct at NJP, working with an attorney to develop mitigation evidence may help to avoid the maximum punishment.

What evidence can I bring to my NJP?

You can call witnesses, bring documents, videos, photos, letters written by peers, and so much more.

What is the maximum punishment for NJP?

The maximum punishment for officers is restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days – If imposed by the commanding officer.

If the officer holding the NJP is a general court-martial convening authority, then the maximum punishment for officers is (a) arrest in quarters for not more than 30 consecutive days; (b) forfeiture of not more than one-half of one month’s pay per month for two months; (c) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; (d) detention of not more than one-half of one month’s pay per month for three months.

The maximum punishment at company level NJP is (a) forfeiture of seven (7) days’ pay; (b) extra duties for 14 days; (c) restriction for 14 days; (d) reduction in pay grade/rank if the officer has promotion authority to that rank. Company level NJP is typically held by a company grade officer (Lieutenant or Captain) holding a company commander’s billet.

The maximum punishment at battalion level NJP is (a) forfeiture of 50% of one month’s pay for two months; (b) extra duties for 45 days; (c) restriction for 60 days (unless restriction is combined with extra duties, then the maximum is 45 days restriction); (d) reduction in rank to E-1, unless the service member is about the pay grade of E-4. Then the maximum reduction in rank is two pay grades. Typically, battalion/squadron/regimental level NJP is held by an officer who is a Major or Lieutenant Commander or higher.

Can my punishment be suspended?

Yes. An officer exercising NJP has the option to award the punishment, but defer implementing the sentence. If the service member has a good reason to delay starting the NJP Punishment, the commanding officer may hold off on imposing the sentence so long as the service member does not commit further misconduct.

Can I appeal my NJP?

Yes. Service members punished under Article 15 who consider their punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged.

To appeal an NJP, service members should compile their paperwork, evidence, character statements, and draft an explanation for why the punishment imposed is unjust or disproportionate.