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FREQUENTLY
ASKED QUESTIONS
1.
Why should I hire a civilian
attorney?
When
you are accused of a crime in the
military, you will be assigned a
military attorney free of charge. In a very serious case, you may actually be assigned 2
attorneys.
While they are generally
enthusiastic, most military defense
attorneys are relatively
inexperienced.
When your career is at stake,
you should put yourself in a position
to give yourself the best chance to
succeed.
After all, this outcome could
affect you for the rest of your life.
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2.
I was arrested downtown.
Why am I being tried by the
military?
Because
you
are in the military, you are subjected
to being tried in the military system. If the local authorities also have jurisdiction, the military
legal staff and the local prosecutors
will discuss who will actually try
your case.
Even if the local prosecutor
tries your case, you can be
administratively discharged from the
military and it would not be
considered double jeopardy.
3.
I have seen military TV shows and movies.
It looks to me like I am guilty
until proven innocent.
Do I have any chance in being
found not guilty by the system?
While
the military justice system is often
portrayed as being a “kangaroo
court,” you are entitled to the same
Constitutional rights as individuals
who are tried in the local court
system.
There are certain restrictions
on your rights to speak out or your
rights to “quit” your job in the
military as opposed to the civilian
world, but you do get the same
protections once you are in the
military justice system that every
other citizen has.
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4.
I have heard of Miranda rights
in the civilian criminal system.
Are military
members entitled to the same
protections?
The military member is
protected by Article 31 of the Uniform
Code of Military Justice. (UCMJ)
If an investigator or superior
suspects you of committing an offense,
they must inform you of your rights to
remain silent and your rights to an
attorney.
5.
I have been told that I have been scheduled for an Article 32
investigation.
What is that and can I attend?
In
the military justice system, before
the military can prosecute you in a
general court-martial, it must hold an
Article 32 investigation into the
charges.
The hearing is supposed to be
conducted by a neutral and impartial
investigating officer.
Depending on the military
service, it may be conducted by an
attorney or another officer.
You have the right to waive the
hearing, but you also have the right
to be present and to submit matters on
your behalf.
You also have the right to have
your military or civilian counsel
present to cross-examine witnesses and
present evidence.
If you are going to hire a
civilian counsel, you should seriously
consider doing so before the Article
32 hearing.
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6.
My
daughter is AWOL from the Army.
What should I do?
Because
the potential penalties for being away
from the military increase the longer
she is gone, it is important for her
to return as soon as possible. It
is also important that she turn
herself in as opposed to being
arrested by military or civilian
authorities.
7. My son has confessed to
using drugs.
Is there any possibility of a
“plea bargain?
Yes.
In the military system, plea
bargains are known as “pre-trial
agreements.”
A pre-trial agreement is a
negotiated cap on the punishment which
limits the sentence that your son can
receive.
If the sentence is less than
the pre-trial agreement, your son gets
the benefit of that sentence.
If the sentence of the court
exceeds the pre-trial agreement cap,
then the military is limited to
approving the sentence negotiated.
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8.
I have been offered an Article
15/Nonjudicial punishment and I
don’t believe that I am guilty.
Can I refuse the Article 15?
You
can refuse the Article 15/nonjudicial
punishment.
The military may drop the case,
take some administrative action
against you, or take you to a
court-martial.
Be aware that the military is
not limited to only the charges that
they put on the nonjudicial
punishment.
In other words, they can add
additional charges and do not have to
re-offer the Article 15/nonjudicial
punishment to you prior to going to
court-martial.
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