Administrative Separations

A service member’s obligation to his armed service normally continues until terminated. Generally, this time period is determined by the terms of the enlistment contract. However, earlier termination may result due to administrative separation or disciplinary discharge based upon misconduct on the part of the service member.

There are two types of separations given by the armed forces of the United States to enlisted service members: punitive discharges and administrative separations. Punitive discharges can only be awarded as punishment by courts-martial. However, there are many reasons a service member may be administratively separated prior to expiration of the enlistment contract. For example, a service member may be administratively separated based on commission of a serious offense, drug use or possession, or convenience of the government.

If a command wants to administratively separate a service member, the member will be given an Administrative Separation Processing Notice describing why the command is processing the member and the least favorable type of discharge authorized. This form also serves as the member’s opportunity to elect or waive certain rights including the right to consult with a military lawyer. It is always advisable to elect your rights and consult with counsel before waiving any of your rights or the board itself.

A service member may have the right to request an administrative separation board, which is a hearing to fight the separation or characterization. Whether a member has this right depends on how long a service member has served in the military and whether he is are being processed for an OTH discharge. Generally, an enlisted member with six or more years of service is entitled to a board, and some offenses always entitle the member to a board. If a service member is not entitled to an administrative separation board, he stil has still have the right to request review of the decision to process him for separation.

If the member is entitled to an administrative separation board and chooses to proceed with the board, the board (composed of three members) will have to answer three questions. They are:

• Whether or not the member committed misconduct as alleged by the command;

• If so, whether the member should be retained in the military or administratively separated; and,

• If the member is to be separated, what characterization of discharge should be granted.

There are four ways an administrative separation may be characterized: Honorable, General (Under honorable conditions), Other than Honorable (OTH), and entry level separation. An OTH is the worst level of discharge authorized by most separation boards. The characterization of a separation may affect veteran’s benefits (including GI Bill eligibility), future re-enlistment in the military or subsequent civilian employment. Each armed force has different regulations governing the rules for separation.

Different rules and regulations apply to officer separations. Therefore, officers notified that they must show cause why they should be retained should contact a defense attorney about their rights.

 

 

Rights of the Accused

Assume for this example that you have been involved in a crime. You have been ordered to go to the CID office. When you arrive at the CID office you are escorted into a very sterile-looking room with only a desk and two chairs. There are no pictures on the walls, but there is a mirror which you suspect is two-way. You are left alone in the room for what seems like an interminable period of time, and all the while you are becoming more and more nervous. Finally, an agent enters the room. After identifying himself, one of the first things he may ask you is, “Do you know why you are here?” (or words something to that effect). Now you are in a quandary. Does he suspect you of committing a crime? Isn’t he supposed to read you your rights before asking you any questions? Do you answer the question or remain silent? If you do answer this seemingly innocent question, what use can later be made of your answer? You need to know and understand your rights before you answer.

 

What are Article 31b Rights?

Article 31 of the Uniform Code of Military Justice states: “No person subject to this chapter [that means everyone in uniform plus civilian police officers in military police departments] may interrogate or request any statement from an accused or person suspected of an offense without first:

• Informing him of the nature of the accusation;

• Advising him that he does not have to make any statement regarding the offense of which he is accused or suspected; and,

• Informing him that any statement made by him may be used as evidence against him in a trial by court-martial.”

What this means is that, if you are a suspect (and you are in the example given above), before you can be questioned, he must tell you what crime or crimes you are suspected of committing, and that you have the absolute right to remain silent and say nothing at all. However, if you do decide to talk and make a statement (whether verbal or in writing, and whether true or false) any such statement may be used by the government to try to convict you at a court-martial.

You will also be informed that you have the right to consult with an attorney and to have an attorney present at the interrogation. These latter rights are based not on Article 31, but on the famous Miranda decision. Attorneys attached are available to provide such consultation when requested.

At this point,you have been read your rights and you have indicated that you understand those rights. So now what do you do? You basically have three choices at this stage, and each has consequences at any subsequent court-martial, as discussed below.

Your choices are:

1. Invoke your right to remain silent and say nothing (or invoke your right to consult with an attorney before deciding whether or not to answer questions or make a statement and thereafter decide to say nothing);

2. Waive your right to remain silent and make a truthful statement; or

3. Waive your right to remain silent and make an untruthful statement.

Only the first two choices are lawful. The third choice is not lawful and, as discussed below, can lead to additional criminal charges being brought against you.

 

If you invoke your right to remain silent, then the questioning must immediately stop.

If you choose this option, you should make your election unequivocal (i.e., make it very clear that you choose not to answer questions or make a statement and that you do not want to proceed further without first consulting with an attorney). If your election is not clear, then a special agent can attempt to get clarification from you.

 

The bottom line is, if you do not want to answer questions or make a statement or if you want to consult with an attorney before making your decision about whether or not to remain silent, make your choice absolutely clear; then all questioning must immediately cease.

If you do invoke your right to remain silent (either before or after consulting with an attorney), then the government cannot use anything that occurred during the interrogation session as evidence against you to try to convict you of the crime. The fact that you invoked your right to remain silent or your right to consult with an attorney cannot be used as evidence against you for any purpose. These are your absolute rights based on the constitutional right against self-incrimination, and the fact you chose to exercise your constitutional rights cannot be used against you in any way. The government may still be able to convict you of any crime that you may have committed, but it must do so based on evidence other than what came out of your mouth.

 

Waiving your right to remain silent and telling the truth (assuming in this example that this means confessing to the crime).

If this is the option you choose, then your statement (whether verbal or in writing) can later be introduced into evidence against you by the government at your court-martial. This is very strong evidence of guilt, because people do not usually confess to doing something that they didn’t really do. Although there are certainly cases where people do make false confessions, this is really the exception and not the rule. It is significantly easier for the government to obtain a conviction against someone who confesses to committing a crime than against someone who remains silent. As previously stated, the government may still be able to convict you without a confession, but it must do so based on evidence other than your own statement.

 

Waiving your right to remain silent and lying to authorities.

If you untruthfully deny that you committed the crime, you may well find yourself charged with other crimes. The mere act of untruthfully denying your guilt, without more, means that you can now be charged with making a false official and obstructing justice (and if you swear to your statement, you can also be charged with false swearing).

 

 

Article 32 Investigations

What is an Article 32 Investigation?

Since the civilian concept of a “grand jury” does not apply to the military, Article 32 of the Uniform Code of Military Justice (UCMJ), requires a thorough and impartial investigation of charges and specifications before they may be referred to a general court-martial (the most serious level of courts-martial). However, the accused may waive the Article 32 investigation requirement.

An Article 32 hearing is basically where an independently appointed “investigating officer” hears the evidence presented by the government, along with any matters submitted by the defense, and makes a recommendation as to what type of court-martial, if any, the accused should be tried. The purpose of this pretrial investigation is to inquire into the truth of the matter set forth in the charges, to consider the form of the charges, and to secure information to determine what disposition should be made of the case in the interest of justice and discipline. The investigation also serves as a means of pretrial discovery for the accused and defense counsel in that copies of the criminal investigation and witness statements are provided and witnesses who testify may be cross-examined.

 

Rights of the Accused at an Article 32

The accused at an Article 32 investigation has several important rights.

The accused also has a right to waive an Article 32 investigation and such waiver may be made a condition of a plea bargain. If the investigation is not waived, the accused is entitled to be present throughout the investigative hearing (unlike a civilian grand jury proceeding). At the hearing, the accused has the right to be represented by an appointed military defense counsel or may request an individual military defense counsel by name and may hire a civilian attorney at his own expense. Again, unlike a civilian grand jury proceeding, the service member, through the member’s attorney, has the following rights: to call witnesses; to present evidence; to cross-examine witnesses called during the investigation; to compel the attendance of reasonably available military witnesses; to ask the investigating officer to invite relevant civilian witnesses to provide testimony during the investigation; and, to testify, although he cannot be compelled to do so.

The accused must be served with a copy of the investigative report and associated evidence. Within five days of receipt, the accused may submit objections or comments regarding the report to the commander who directed the investigation.

 

 

Attorney-Client Relationship

Attorney-Client Relationship between Clients and their assigned counsel

According to the Manual for Courts-Martial, Rule 502, a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

• Between the client or the client’s representative and the lawyer or the lawyer’s representative;

• Between the lawyer and the lawyer’s representative;

• By the client or the client’s lawyer to a lawyer representing another in a matter of common interest;

• Between representatives of the client or between the client and a representative of the client; or

• Between lawyers representing the client.

 

What does the rule mean?

Basically, the above rule means that any communications between the client and his lawyer in the course of the representation are considered confidential communications and cannot be disclosed without the client’s consent. The purpose of this rule is to allow clients to be open with their lawyers without the fear that the lawyer will be forced to disclose the client’s information to someone else.

 

Attorney-Client Relationship with Walk-in Clients

Generally, attorney-client relationships will not be formed with walk-in clients, and the client will be so informed. Normally, an attorney is assigned to represent you only after court-martial charges are preferred against you or you have been formally notified of administrative separation proceedings against you. When a service member speaks to an attorney as a walk-in, those conversations are in confidence, even though that individual attorney has not been assigned to represent you. This enables the defense attorney to give the best possible advice to the service member.

 

 

Confinement

Pre-Trial Confinement in the Military

Pretrial confinement in the military is similar to the civilian system in some respects and different in others. In the civilian community, police officers arrest serious offenders and take them to jail. In military cases, service members who are “apprehended” (“arrest” has a different technical meaning in the military) are typically turned over to a member of their command. The command then decides whether to confine the member in a military jail (called a “brig” or “confinement”). The command may also impose pretrial “restrictions” instead of confinement. For instance, the service member may be restricted to his base, pending trial. Before any service member is confined or restrained, there must be “probable cause” (a reasonable belief) that the service member committed an offense triable-by courts-martial, and that confinement or restriction is necessary under the circumstances.

In addition, any military officer can order an enlisted service member to be confined. The decision to confine a military member is the subject of several reviews. The military justice system requires that a review of the decision to confine the accused be conducted within 48 hours. Within 72 hours, the military member is entitled to have his commanding officer review whether his continued confinement is appropriate. However, if someone other than the commanding officer confined the member and the commanding officer’s review was actually conducted within 48 hours, then this commanding officer’s review can serve to satisfy both review requirements. Thereafter, a neutral and detached reviewing officer who is independent of the command must conduct another review within seven days.

For the seven-day review before the IRO officer, a service member is provided a military lawyer, at no expense, to assist him. These reviews must confirm, in writing, that

• There is probable cause to believe that the service member committed an offense triable by court-martial;

• Confinement is necessary to prevent the service member from fleeing or engaging in serious criminal misconduct; and

• Lesser forms of restraint would be inadequate.

When charges are “referred” or presented to a court-martial, the confined service member may ask the military judge presiding over the trial to review the legality of his pretrial confinement. If rules were violated, the military judge can release the service member from pretrial confinement, and he can reduce any subsequent sentence, giving additional credit for inappropriate confinement.

Service members do not have to post bail, continue to receive their regular military pay, and do not lose their jobs while awaiting trial.

 

Restriction and Confinement

Restriction is a lesser form of restraint than confinement, and may be awarded at Non-Judicial Punishment or court-martial. An accused may also be placed on restriction while awaiting trial by court-martial. Restriction is imposed upon a person by oral or written orders and limits him to specified areas of a military command. Restriction is normally defined for the person by a Restriction Order that states the length, limits and terms of the restriction.

Confinement is the most severe form of restraint, and may be imposed only as pre-trial confinement or as part of a sentence awarded by a court-martial. Confinement is normally served in a military brig such the famous Fort Leavenworth, Kansas. Military Brigs are the equivalent of civilian prisons.

Pre-trial confinement, according to Rule for Court-Martial 305, may be ordered when there is probable cause to believe that:

• An offense triable by court-martial has been committed;

• The prisoner committed it; and

• Confinement is necessary because it is foreseeable that:

  • The prisoner will not appear at trial, pretrial hearing or investigation, or

  • The prisoner will engage in serious criminal misconduct; and

  • Less severe forms of restraint are inadequate.

Regular confinement is that confinement ordered as part of a court-martial sentence. The maximum amount of confinement authorized depends on the offense and the type of court-martial

 

 

What is a Convening Authority?

In the armed forces, a Convening Authority (CA) is the commanding officer empowered by the UCMJ to review evidence and refer charges to the appropriate forum, if he believes a court-martial is warranted. Upon receipt of preferred charges, the CA may refer the charges for trial by Summary, Special or General Court-Martial or make other appropriate recommendations. The CA also assigns court members (jurors) based on their age, education, training, experience, length of service and judicial temperament. If an enlisted service member requests enlisted members on the panel, at least one-third of the members will be enlisted personnel.

 

Complaints of Wrongs

Generally

There is a formal complaint mechanism for military personnel who feel they have been wronged by either a commanding officer or another military superior. Article 138 of the UCMJ specifies when and how a military service member may file a complaint against a superior. Each is discussed in more detail below.

It is always a good idea to speak with an attorney before rushing to file these types of complaints. Resolution of conflicts should be done at the lowest level, and often an attorney can assist is resolving a conflict without resorting to a more severe course of action.

 

Article 138 Complaints, UCMJ

Article 138 of the UCMJ provides that “any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.”

Generally, an Article 138 complaint should be filed within 90 days of the alleged wrong, and all complaints must be in proper form.

See an attorney for advice and assistance in preparing this type of complaint and forwarding it to the proper persons.

 

Nonjudicial Punishment

What is NJP?

Nonjudicial Punishment (NJP) in the U.S. Armed Forces is authorized by Article 15 of the UCMJ. NJP is a disciplinary measure more serious than the administrative corrective measures, but less serious than trial by court-martial. NJP provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in service members without the stigma of a court martial conviction.

 

Commander’s Responsibility

Commanders are responsible for good order and discipline in their commands. NJP is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the minor offense or the record of the service member, unless it is clear that only trial by court-martial will meet the needs of justice and discipline. Commanders considering nonjudicial punishment should consider the nature of the offense, the record of the service member, the needs for good order and discipline, and the effect of nonjudicial punishment on the service member and the service member’s record.

A commander who is considering a case for disposition under Article 15 will exercise personal discretion in evaluating each case, both as to whether nonjudicial punishment is appropriate and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate authority impose nonjudicial punishment in a particular case, issue regulations, orders or “guides” which suggest to subordinate authorities that certain categories of minor offenses be disposed of by nonjudicial punishment instead of by court-martial or administrative corrective measures or that predetermined kinds or amounts of punishments be imposed for certain classifications of offenses that the subordinate considers appropriate for disposition by nonjudicial punishment.

 

Limitations on NJP

• Double punishment prohibited. When nonjudicial punishment has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.

• Increase in punishment prohibited. Once nonjudicial punishment has been imposed, it may not be increased, upon appeal or otherwise.

• Multiple punishment prohibited. When a commander determines that nonjudicial punishment is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be considered at that time, including all such offenses arising from a single incident or course of conduct, shall ordinarily be considered together, and not made the basis for multiple punishments.

• Statute of limitations. Generally, NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.

• Civilian courts. NJP may not be imposed for an offense tried by a court which derives its authority from the United States. NJP may not be imposed for an offense tried by a state or foreign court unless authorized by regulations of the secretary concerned.

 

Do I have the right to demand trial instead of NJP?

Except in the case of a person attached to or embarked on a vessel, punishment may not be imposed under Article 15 upon any member of the armed forces who has, before the imposition of NJP, demanded trial by court-martial in lieu of NJP. This means that if your command is onboard, attached to or embarked on a ship, you cannot refuse. A person is “attached to” or “embarked on” a vessel if, at the time NJP is imposed, that person is assigned or attached to the vessel, is on board for passage or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group or other regularly organized body.

 

 

Post-trial Matters

Appeals

If an accused is convicted at a court-martial, the result of trial is reviewed in different ways, depending on the severity of the sentence imposed. At a minimum, the record is reviewed by a Staff Judge Advocate (SJA) for the command and the verdict and sentence are approved (or reduced in severity) by the CA.

In cases in which a punitive discharge or a sentence to confinement of one year or more is approved, the case is automatically appealed to the Army Court of Criminal Appeals (for all Army accuseds). There, the accused again is represented by military counsel free of charge. While all appellate courts have the power to review matters of law, the Courts of Criminal Appeals have fact-finding power and, if the court is not convinced beyond a reasonable doubt of the guilt of the accused, it has the power to overturn the finding of guilty and any sentence imposed.

If the accused desires, he may appeal decisions of the service’s Court of Criminal Appeals to the Court of Appeals for the Armed Forces. This court is composed of five civilian judges appointed by the President and confirmed by the Senate for 15-year terms. An accused can challenge decisions of the Court of Appeals for the Armed Forces by asking the U.S. Supreme Court for a grant of certiorari.

 

Clemency

Clemency is an action by either the court-martial CA or a Clemency and Parole Board which may result in the mitigation, remission or suspension of the whole or any part of an individual’s court-martial sentence. To receive clemency from the CA, the accused may submit a request for clemency after the sentence is announced but before the CA takes final action. The accused detailed defense counsel is responsible for assisting the accused in the submission of matters in clemency.

Pursuant to the UCMJ, Service Secretaries may also grant clemency on unexecuted portions of a court-martial sentence. Primarily the service’s Clemency and Parole Boards exercise these clemency powers. Each board consists of five senior officers and provides recommendations and advice to the respective Service Secretary. Automatic clemency review is available to an accused depending on the length of confinement awarded and the branch of service. Clemency review can be waived.

 

Parole

Parole is the conditional release of an accused from confinement. The service member’s service regulations should be reviewed to determine eligibility criteria. The eligible applicant must submit a parole plan to the appropriate service’s Clemency and Parole Board. The parole plan must provide, at a minimum, a residence requirement, a requirement that the prisoner have guaranteed employment, an offer of effective assistance to obtain employment or acceptance in a bona fide educational or vocational program. Military prisoners transferred to the Federal Bureau of Prisons to serve their sentence are paroled at the discretion of the Federal Bureau of Prisons. The U.S. Probation Office supervises all parolees.

In general, the Clemency and Parole Board looks at the following factors: the nature and circumstances of the crime; the military and civilian background of the offender; a substantial post-conviction educational or rehabilitative effort; post-trial progress reports; recommendations of the military judge and legal officer; psychiatric evaluations; any statement by the victim; and, any restitution made to the victim.

 

Pardon

An individual may also petition for the highest form of clemency, a Presidential Pardon. Under Article II, Clause 1 of the U.S. Constitution, the President has the power to grant pardons for federal offenders. The pardon signifies forgiveness of an offense. However, a pardon will not change the nature of a discharge or expunge a record of conviction. Requests for pardons are handled through the Office of the Pardon Attorney, U.S. Department of Justice (DoJ).

 

 

 

Right to Counsel of the Accused

Generally

For courts-martial and administrative separation boards, an independent military defense counsel is provided to the accused free of charge, regardless of the accused’s ability to pay. The accused may also employ civilian counsel at his own expense or request a particular military counsel who will assist the accused if he is reasonably available. The accused has the right to be represented by counsel at the pretrial confinement hearing (see IRO hearings), at an Article 32 investigation, and during all court-martial sessions. After trial, the accused has a right to free military counsel to assist with his appeal through the military appellate courts, and potentially to the U.S. Supreme Court.

 

Right to Counsel for Nonjudicial Punishment (NJP)

An accused does not have the right to an attorney for Nonjudicial Punishment (NJP).

However, a service member who is not attached to or embarked on a vessel must be told of his right to confer with counsel regarding his decision to accept or refuse the NJP, if the record of that NJP is to be admissible in evidence against him should the accused ever be subsequently tried by court-martial. To be admissible at later courts-martial, records of NJP must be prepared in accordance with applicable service regulations and reflect that:

1. The accused was advised of his right to confer with counsel;

2. The accused either exercised his right to confer with counsel or made a knowing, intelligent and voluntary waiver thereof; and

3. The accused knowingly, intelligently and voluntarily waived his right to refuse NJP. All such waivers must be in writing.

 

Right to Counsel for Courts-Martial

The accused always has the right to be represented at court-martial by a detailed military defense counsel, who is provided at no expense to the accused.

The accused also has the right to request, by name, a different military lawyer. If that attorney is determined to be reasonably available, he will be appointed to represent the accused free of charge.

In addition, the accused has the right to be represented by a civilian lawyer at no expense to the government. If a civilian lawyer represents the accused, the accused can also keep his military attorney on the case to assist the civilian lawyer. Alternatively, the accused could excuse his military lawyer and be represented only by the civilian lawyer. Although rarely exercised, the accused also has the right to represent himself.

 

 

Types of Court-Martial

There are several different levels of courts-martial and each has specific jurisdictional limits on its punishment capability. Some of the differences are summarized in the following table:

 

 

Court-Martial	# of Members Required	Maximum Confinement	Discharge	Forfeiture of Pay
SUMMARY	One Officer	30 days	None	2/3 pay for one month
SPECIAL	At least three (or trial by judge alone if requested)	12 months	Bad Conduct	2/3 pay per month for 12 months
GENERAL	At least five (or trial by judge alone if requested)	Life (Capital Punishment is authorized for some offenses)	Bad Conduct Dishonorable Dismissal (for officers only)	Total forfeitures of pay and allowances

 

Summary Court-Martial

Trial by summary court-martial provides a simplified procedure for the resolution of charges involving minor incidents of misconduct. The summary court-martial consists of one officer who, depending on service policies and practice, may be a judge advocate (a military attorney). The maximum punishment a summary court-martial may impose is considerably less than a special or general court-martial. The accused must consent to be tried by a summary court-martial.

 

Special Court-Martial

A special court-martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused, officer or enlisted, may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than six months confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of two-thirds basic pay per month for six months, a bad-conduct discharge (for enlisted personnel) and certain lesser punishments. An officer accused in a special court-martial cannot be dismissed from the service or confined. Note: The maximum confinement will become one year and the maximum forfeiture duration will also become one year in the near future.

 

General Court-Martial

A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel and at least five court members. Again, an enlisted accused may request a court composed of at least one-third enlisted personnel. Unless the case is one in which the death sentence could be adjudged, an officer or enlisted accused may also request trial by judge alone. In a general court-martial, the maximum punishment is that established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement for life, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers or a number of other lesser forms of punishment. A pretrial investigation under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial, unless waived by the accused.