Service members facing court-martial charges in a General or Special Court-Martial forum are facing very serious and often life-long consequences. A court-martial presents far more than a threat to a service member’s military career. Court-martial charges may result in an adverse military service characterization, the loss of one’s liberty and freedom in the form of confinement, the stigma associated with a federal conviction and other lasting consequences. Mr. Berens has significant experience investigating and prosecuting and defending service members at courts-martial, including courts-martial for some of the most serious charges, including but not limited to, rape, sexual assault, abusive sexual contact with a child, other serious sex offenses, drug abuse, voyeurism, attempted premeditated murder, manslaughter, and more. Mr. Berens has secured dismissals and full acquittals in a number of cases as a Military Defense Attorney.
More about military investigations and courts-martial
A violation of the UCMJ is alleged to have occurred…
The court-martial process typically begins when military authorities become aware of an alleged violation of the Uniform Code of Military Justice (UCMJ). Not every alleged violation of the UCMJ warrants an investigation.
A law enforcement component from the responsible commander’s service branch becomes involved when serious allegations arise and commanders need additional information before deciding to take corrective or other action. The law enforcement component may be the Army Criminal Investigation Command (CID), the Naval Criminal Investigative Service (NCIS), the Air Force Office of Special Investigations (AFOSI), or the Coast Guard Investigative Service (CGIS). The UCMJ does not distinguish between felony and misdemeanor level offenses. Offenses that would be considered felony-level offenses in other jurisdictions are usually investigated by CID, NCIS, AFOSI, or CGIS.
The investigation may be spearheaded by one investigative agency or it may be a joint investigation with another civilian or military investigative entity. There is no strict time limit on the duration of the investigation unless the alleged offense occurred a number of years prior and an applicable statute of limitations demands a more rapid response by the investigative agency. Some investigations may last more than one year. Many investigations take a number of months.
Serious allegations where a service member is perceived to be a flight risk or a threat to the safety of others may trigger some form of pretrial restraint under Rule for Court-Martial 304 or pretrial confinement under Rule for Court-Martial 305.
The investigation will likely include collection of any physical evidence, digital evidence and statements from witnesses. Investigators will likely call the subject (suspect) in to ask the subject to make a statement. The statement may be verbal, in writing, or both. The verbal statement will most likely be audio and video recorded. A military subject suspected of violating the UCMJ should be advised of his/her rights under Article 31, UCMJ, and his/her 6th Amendment right to consult a lawyer. A statement elicited prior to a rights advisement may be suppressed at a subsequent trial by court-martial.
Article 31, UCMJ, rights include the right to remain silent and elect to say nothing at all in response to questions from investigators. It is often in a service member’s best interest to exercise this right. If a statement will be in the service members best interest at some point in the future, there will be ample opportunity to provide a statement once the service member has had the opportunity to speak with a lawyer and better understand the allegations being made.
Article 31, UCMJ, rights also include the right to be informed of the nature of the accusation being made. For example, a service member suspected of committing a sexual assault should be made aware of the fact that an allegation of sexual assault has been made.
CID, NCIS, AFOSI, and CGIS often require subjects to accomplish some administrative processing regardless of whether or not the member elects to make a statement concerning the alleged offense. The administrative processing typically involves photos of the service member, fingerprinting, and simple paperwork. The processing may be documented in a shared law enforcement database and be reflected on a background check years later.
A tactic occasionally employed by investigators is to delay the administrative processing of the service member after the service member elects to exercise his/her right to remain silent and/or speak with a lawyer in an attempt to get the service member to change his/her mind and make a statement.
The investigation is complete…
The commander responsible for the service member suspected of criminal misconduct and the servicing Staff Judge Advocate (JAG) will receive a report summarizing the investigation. The report will include summaries from investigators, documentation of the investigative steps taken and evidence obtained, and other information for the commander to consider.
The commander and superior commanders will have a number of administrative, non-judicial, and judicial avenues to pursue. Action will depend in part on the advice of the Staff Judge Advocate. If the facts warrant no further action, the commander may choose to take no further action. If the facts suggest a court-martial may be in order, the commander will consult with the Staff Judge Advocate to determine the proper forum.
There are three types of court-martial. Summary, special, and general courts-martial. Summary courts-martial are convened for minor offenses and carry no right to a panel (jury) or a defense counsel. A commander or an officer from another unit is usually selected to preside over a summary court-martial as opposed to a military judge. A service member’s rights are significantly diminished in a summary court-martial, but a conviction in a summary court-martial is not comparable to a conviction in a special or a general court-martial and the maximum punishment is limited to 30 days confinement, two-thirds forfeiture of pay for one month and reduction to E-1 for service members in the grade of E-4 and below.
Special courts-martial are generally convened for misdemeanor-level offenses. Special courts-martial carry the right to elect to be tried by a panel of at least three officers (one-third of the panel may be enlisted at the request of an enlisted accused) or by military judge. One important distinction in a special court-martial is the maximum punishment authorized is a bad-conduct discharge, confinement for one year, forfeiture of two-thirds pay per month (not allowances) for up to 12 months, and reduction to E-1.
General courts-martial are generally convened for felony-level offenses, cases involving alleged officer misconduct, or a combination of offenses warranting punishment that exceeds the maximum punishment allowed in a trial by special court-martial. General courts-martial carry the right to elect to be tried by a panel of at least five officers (one-third of the panel may be enlisted at the request of an enlisted accused) or by military judge. The maximum punishment authorized is the jurisdictional maximum authorized by the UCMJ for the offenses which an accused may be convicted. Authorized punishments include reprimand, forfeiture of pay and allowances, fine, reduction in pay grade, restriction to specified limits, hard labor without confinement, confinement, punitive separation (dismissal (officers only), dishonorable discharge, bad conduct discharge), and death.
A federal conviction adjudged by special or general court-martial also carries a negative stigma and other collateral consequences that limit future opportunities, such as the rights to vote and own firearms.
Attorney Mike Berens: Court-Martial Lawyer
Mr. Berens represents service members from any branch of service in any court-martial forum. Mr. Berens primarily tries cases at the trial court level. He is qualified to handle cases on appeal before the Air Force Court of Criminal Appeals, Army Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Coast Guard Court of Criminal Appeals and the Court of Appeals for the Armed Forces. Mr. Berens is admitted to practice before the Court of Appeals for the Armed Forces. The Court of Appeals for the Armed Forces is the appellate court exercising jurisdiction over members of the armed forces on active duty and other persons subject to the Uniform Code of Military Justice.