FAQ

Defense Services FAQ

Q. Do I need a lawyer?

A. If you are concerned that you may need to talk to a lawyer, then you probably do. Please come into our office during normal defense walk-in hours or contact TDS to schedule an appointment to meet with an attorney for further guidance.

Q. What should I do if I cannot come during normal walk-in hours?

A. In legitimate emergency situations where a legal question must be answered immediately and there is no way to come during the normal walk-in hours, please contact our defense office. We will make every effort to provide legal services in accordance with your needs.

Q. What rights do I have regarding making statements and speaking with an attorney?

A. As a military service member, you have specific rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) and under the military’s version of “Miranda Rights,” known as “Miranda / Tempia Rights.”

PLEASE NOTE: If you are suspected of committing misconduct, then any attempt to interview you should begin with the investigator / questioner telling you that you are suspected of a specific violation of the Uniform Code of Military Justice or civilian criminal laws. They must tell you what the nature of the violation is so that you may direct your answers specifically to those allegations.

When interrogated, you should be told the following:

You have the right to remain silent;
Any statement you make may be used against you in a trial by court-martial (or any court of law);
You have the right to consult with a lawyer before any questioning. This lawyer may be a civilian lawyer retained by you at your own expense, a military lawyer appointed to act as your lawyer (for the purposes of assisting you with the questioning) without cost to you, or both;
You have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview; and
If you decide to answer questions without a lawyer present, you have the right to stop the interview at any time. You also have the right to stop answering questions at any time in order to obtain a lawyer.

Q. Should I make a statement?

A. This question cannot be answered without first speaking to an attorney. You have certain legal rights (listed above) and one of them is to remain silent. You also have the right to speak to an attorney prior to making any statements. TDS attorneys strongly encourage service members to seek legal advice prior to making any official or unofficial, written or oral statements to command representatives, law enforcement officials (military or civilian), investigators and any other person asking questions. Investigators and command members must advise you of your rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) prior to asking you any questions regarding criminal matters in which you are a suspect. Especially in situations where your rights are read or shown to you and you are told in advance of questioning that you are considered a suspect, TDS attorneys strongly encourage you to exercise those rights and speak to an attorney prior to making any statement.

Q. What rights do I have to military and civilian attorneys?

A. As listed above, you have the right to retain a civilian attorney at your own expense. The decision whether to retain a civilian attorney is completely up to you. You also have the right to speak to a military attorney at no expense to you prior to any questioning. You have the right to have either or both of those attorneys present during any questioning. Although a military attorney can provide advice and counsel during an investigatory phase of questioning, a military attorney will not be “detailed” to your case specifically unless and until you have charges preferred against you and your command decides to refer the matter to a special court-martial, an Article 32 hearing or an administrative separation board. At court-martial, you also have the right to an “Individual Military Counsel,” that is, a military counsel of your own selection, provided that person is reasonably available. If your request for Individual Military Counsel is approved, you may also request that your originally detailed counsel remain on the case as well, and it will be up to the detailed counsel’s commanding officer to approve or deny the request. This means it is possible, and in fact is quite common, to have at least two military attorneys assigned to your case, at no expense to you.

Q. What is NJP?

A. Nonjudicial Punishment (NJP), also referred to as “Article 15”, is a relatively informal and low-level forum for handling minor misconduct. Article 15 of the Uniform Code of Military Justice (UCMJ), located in the Manual for Courts-Martial (MCM), explains what constitutes “minor” misconduct and the basics of this process. It can be imposed by a commanding officer and specifically designated officers in charge. We encourage area service members to come into our offices for legal advice if they are facing possible legal action by their command. Please refer to the list of rights presented below.

Nonjudicial Punishment Rights (“Booker Rights”)

You have the right to refuse mast (unless attached to or embarked on a vessel). See Article 15, UCMJ.
You have the right to confer with an independent attorney.
You have the right to appear personally before the CO or OIC.
You have the right to be informed of your Article 31b, UCMJ rights. (See above.)
You have the right to be accompanied by a spokesperson. This is a person you want to speak on your behalf — a spokesperson is different than having a witness present.
You have the right to be informed of the evidence against you relating to the offense.
You have the right to examine all evidence upon which the CO will rely in deciding about whether and how much NJP to impose.
You have the right to present matters in defense, extenuation and/or mitigation, orally, in writing or both.
You have the right to have witnesses present. The accused is generally the one who must arrange for the witnesses to attend
You have the right to appeal a CO’s decision at mast. See Article 15(e), UCMJ for details. In general you can appeal on the grounds the punishment was unjust or disproportionate. The appeal should be “prompt” (within five days) and directed to the next superior authority via the “proper channels” (chain of command). See Part V of the MCM for “set aside” procedures where “a clear injustice” has occurred.

Q. What is an Arraignment?

A. An arraignment is a formal court hearing where the charges are read to the accused by the trial counsel, unless the reading is waived by the accused. The accused is then asked to enter pleas to the charges and plead guilty or not guilty to the charges referred against him/her, or preserve the option and reserve pleas for a later date.

Q. What is a Summary Court-Martial?

A. A summary court-martial is a disciplinary proceeding meant to adjudicate minor offenses with a simple procedure.

A summary court-martial is not considered a "criminal prosecution" within the meaning of the 6th Amendment.
An accused does not have a right to be represented by military defense counsel at the proceeding, but the accused will be given the opportunity to consult with an attorney beforehand.
The accused will generally be permitted to retain a civilian defense attorney unless military exigencies prevent it.
The summary court-martial will be composed of a single commissioned officer. The government will not be represented by a prosecutor.
A summary court-martial is not permitted if the accused objects to that forum . Maximum punishments for E-4 and below: reduction to E-1, forfeiture of 2/3 pay for one month, and either 60 days of restriction, 45 days of hard labor without confinement, or 30 days confinement.
Maximum punishments for E-5 and above: reduction of one grade, forfeiture of 2/3 pay for one month, and 60 days of restriction.
Officers cannot be tried at a summary court-martial.

Q. What is a Special Court-Martial?

A. A special court-martial is a federal criminal trial composed of a military judge and at least three jury members (although the accused can also choose to be tried by judge alone).

A conviction at a special court-martial is akin to a misdemeanor conviction in a civilian criminal court. The maximum punishment that can be adjudged is confinement for 12 months, forfeiture of two-thirds pay per month for 12 months, reduction in rank, and a bad conduct discharge.

The accused has the right to be represented by an appointed military defense counsel. The accused also has the right to retain a civilian counsel at no cost to the government.

Q. What is a General Court-Martial?

A. A military court with the power to try all offenses punishable under the UCMJ. It is composed of not less than five members or, per the request of the accused, by a military judge alone. It is reserved for more serious crimes, those substantially similar to felonies in civilian jurisdictions. Again, the accused has the right to be represented by an appointed military defense counsel. The accused also has the right to retain a civilian counsel at no cost to the government.

Q. What is a convening authority?

A. The convening authority's responsibilities are set forth in the Uniform Code of Military Justice and include referring charges to courts-martial, designating members to serve as a jury, funding the proceedings, and reviewing the outcome. The convening authority is a commissioned officer in command who has the authority to order a Court-Martial into existence and to refer charges against a service member for trial by that Court-Martial.

Q. What is/are an Administrative Separation Board and/or Board of Inquiry?

A. Administrative Separation Boards (Admin Boards) and Boards of Inquiry (BOIs) are administrative hearings at which a service member may be processed for an administrative discharge. They are similar in some ways to courts-martial, they are solely administrative and not punitive in nature. Like a court-martial, it is an adversarial proceeding, meaning the government can present its case, and the service member (“respondent”) can present his case. At an Admin Board or BOI, the respondent has several important rights, including the right to be represented by a detailed military attorney, the right to a civilian attorney at no expense to the government, the right to call witnesses, the right to present evidence, the right to challenge the evidence against him, and the right to remain silent. The Military Rules of Evidence generally do not apply to boards and a board’s decisions about whether misconduct occurred are based upon a preponderance of the evidence standard.

If a service member was found guilty at a prior proceeding, then the board is NOT bound by that finding. If a service person was convicted at a court-martial or by a civilian court, and is being processed for separation on the basis of the same underlying misconduct, the board IS bound by the misconduct determination. However, the board is still free to decide whether separation is warranted and, if so, what characterization of discharge should be awarded. Though the proceeding is considered non-punitive, there is no question that the consequences of administrative separation with certain characterizations of service can have significant negative consequences regarding loss of virtually all veteran’s benefits, retirement pay (if retirement eligible), civilian employment and inability to reenlist or hold some government jobs or security clearances. Types of discharge possible at an Admin Board or BOI range from Honorable to General (Under Honorable Conditions), to Other Than Honorable (OTH).

Q. Can I be administratively involuntarily separated without a Separation Board?

A. Yes, in certain circumstances. For example, if you have less than six years in the Army, you can be involuntarily administratively separated without a board so long as the characterization of discharge is General (Under Honorable Conditions) or Honorable. If you have more than six years in the Army, you cannot be involuntarily separated without a board, regardless of the discharge type. In either circumstance, you cannot be separated with an Other Than Honorable discharge without an Administrative Separation Board (or unless you waive your right to a board).

Q. Can a service member be administratively involuntarily separated without a Separation Board?

Q. Should I waive my administrative separation board?

A. Most defense attorneys will tell you this is not a good idea. If you waive the board, the likely outcome will be an Other Than Honorable discharge, which is the worst you can receive if you go before the borard and lose. However, there are certain limited circumstances where waiving a board might be in your best interest. Defense attorneys strongly advise service members to consult with an attorney prior to waiving any of your rights as they relate to administrative separation, especially the right to a board.

Q. What are Article 31b Rights?

A. Article 31 of the Uniform Code of Military Justice states: No person subject to this chapter [that means everyone in uniform plus CID agents and 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 that person of the nature of the accusation;
Advising the person that they do not have to make any statement regarding the offense of which they are accused or suspected; and,
Informing the person that any statement made may be used as evidence against him in a trial by court-martial.

Q. What is an Article 32 Investigation?

A. 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.

At an Article 32 hearing an appointed "investigating officer" hears evidence presented by the government and defense, and recommends to the Convening Authority whether the accused should be tried at court-martial, what forum (general, special, or summary) is appropriate, and what charges should be referred against the accused.

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. The investigation also serves as a means of pretrial discovery for the accused and defense counsel in that the government's evidence is provided and witnesses who testify may be cross-examined.

Q. What are the conditions under which a military member can be held in pretrial confinement?

A. There must be probable cause to believe an individual has committed an offense under the UCMJ, it is foreseeable the individual would flee or commit serious criminal misconduct, and that lesser forms of restraint (restriction, e.g.) are inadequate.

Q. What is the difference between restriction and confinement?

A. 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 confinement facility.

Q. What is the appeal process?

A. If an accused is convicted at a court-martial, the record 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) before the verdict and sentence may be approved by the CA. The CA retains the option in each case of disapproving or reducing the severity of the findings or sentence.

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 (ACCA) (for all Army accused). The accused is represented by appellate military counsel free of charge. While all appellate courts have the power to review matters of law, ACCA has 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 ACCA to the Court of Appeals for the Armed Forces (CAAF). 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.

Alternatively, if the accused has been convicted at a general court-martial and was not sentenced to a punitive discharge or more than one year of confinement, the case will be reviewed by the Office of the Judge Advocate General. The JAG has the discretion to modify or set aside the findings and sentence. The JAG also has the authority to order rehearings.

Q. What is the clemency process?

Clemency is an action that results 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's 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. Typically, 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.

Q. What is the parole process?

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.

In general, theParole 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.