Suspects Rights Advisement – Are you being questioned by your chain of command or by law enforcement agents for the alleged commission of an offense? 

 TDS attorneys can assist Soldiers who are suspected of a crime.  No Soldier suspected of an offense may be interrogated or requested to provide a statement 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, before you can be questioned, the commander, investigator, or law enforcement agent 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.

Once read your rights, what should you do? You basically have three choices, 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).

Non-judicial Punishment (Article 15)

TDS attorneys can assist and advice you in preparing your defense during an Article 15/non-judicial proceeding.  An Article 15 is a disciplinary measure more serious than administrative corrective measures, but less serious than trial by court-martial.  It 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.  With this proceeding, a commander can affect your pay, rank and liberty.  In some cases, it can even affect your military career.

Non-judicial punishment 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 non-judicial 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 non-judicial 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 non-judicial punishment is appropriate and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate authority impose non-judicial 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 non-judicial 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 non-judicial punishment.

Administrative Enlisted Separation / Officer Elimination from the Army

Soldiers are entitled to a TDS counsel when being considered for involuntary separation or elimination from the Army.

A Soldier’s obligation to the Army 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/elimination based upon misconduct on the part of the Soldier.

There are two types of separations given by the armed forces of the United States to Soldiers: punitive discharges and administrative discharges. Punitive discharges – Bad Conduct or Dishonorable (Dismissal for officers) - can only be awarded as punishment by courts-martial. However, there are many reasons a Soldier may be administratively separated prior to expiration of the enlistment contract.  For example, a Soldier may be administratively separated based on commission of an offense, drug use, or convenience of the government.

There are four ways an administrative discharge 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 an administrative separation may affect veteran’s benefits (including GI Bill eligibility), future re-enlistment in the military or subsequent civilian employment. Therefore, it is very important that Soldiers facing involuntary separation seek the assistance of a TDS attorney immediately after being notified that they are being considered for involuntarily separation or elimination from the Army.

Courts-Martial

As a matter of law, Soldiers are entitled to competent and effective TDS representation during special or general courts-martial.  They are also entitled to representation by a civilian defense attorney of their own selection, but the Soldier will have to bear the cost of the civilian counsel.

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

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.  As opposed to a special or general court-martial, there is no legal requirement for the accused to be represented by a TDS counsel during a summary court-martial proceeding.  The TDS counsel, however, can expertly assist the accused prepare his defense.  In addition, a finding of guilty at a summary court-martial is NOT considered a federal conviction.

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 may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than 12 months confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of two-thirds basic pay per month for 12 months, a bad-conduct discharge (for enlisted personnel) and certain lesser punishments.  A finding of guilty at a special court-martial carries the stigma of a federal conviction.

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.  A finding of guilty at a general court-martial carries the stigma of a federal conviction.

TDS cannot represent Soldiers facing charges in civilian jurisdiction.  Our defense legal service is restricted to proceedings under military jurisdiction only.

Other Adverse Administrative Actions

 TDS counsel also provide defense legal services to Soldiers facing reduction boards, reprimands for misconduct, IG investigations, and appeals.  The bottom line is – TDS will zealously assist you and defend you, at no cost to you, against any action initiated against you on the basis of an alleged violation of the UCMJ or regulation.