“You can’t handle the truth!”
Posted by Kyle Dietrich on February 5, 2018

Most of what people know about the military justice system comes from the movie “A Few Good Men” and the iconic exchange between Lieutenant Daniel Kaffee (Tom Cruise) and Colonel Nathan Jessup (Jack Nicholson). As entertaining as that exchange is, like most legal dramas, it is not a good representation of an actual court martial.

Members of the Armed Forces are subject to a unique set of laws, the Uniformed Code of Military Justice or UCMJ. The UCMJ provides the military a way to ensure the good order and discipline of its members. It is a Commander (non-lawyer) run system where commanders at all levels have the ability to administer various levels of punishment to servicemembers, the most serious being the court-martial.

A court-martial is in many ways similar to a civilian criminal trial but has many unique features. The military have designated prosecutors, defense counsel, judges and juries called panels. What is unique about the court-martial system is procedure and the high stakes for defendants.

A court-martial begins with charges being preferred (read to an accused) by their commander. This formal reading of charges starts the 120-day speedy trial clock. In other words, the prosecutor has to get the case to trial within 120 days of charging a servicemember. Following this formal reading of charges, an accused is allowed to meet with a member of the Trial Defense Service (TDS), public defenders for the military. An accused also has the right to hire a civilian lawyer to protect their rights.

The next step is an Article 32 Preliminary Hearing, run by an impartial military lawyer who makes a recommendation whether or not the charges should go to trial. This hearing is similar to a civilian grand jury but different in that the accused has more rights. The accused can be represented by counsel at this hearing and the accused’s attorney has the ability to question the prosecution’s witnesses and call their own witnesses and present evidence on behalf of the accused in an attempt to get the charges dismissed.

If the preliminary hearing officer recommends the case to go forward to trial, a military judge will set a date for trial. This is where you find Lieutenant Kaffee at the beginning of the movie.

Jury trials in the military are very different from civilian criminal trials. Normally the jury or panel is composed of commissioned officers or if the accused is enlisted, they may elect a two-thirds enlisted panel. The number of panel members can be a small as 6 in some cases. In order to return a guilty verdict only two-thirds of the jury must vote to convict.

A conviction at a court-martial is something that will follow the accused for the rest of their life and the punishment can be severe. A court-martial is considered a Federal Court, and a conviction results in a Federal conviction, meaning there is no hope for expungement and the conviction will show up on any background check. A servicemember can also receive a punitive discharge (Bad Conduct Discharge or Dishonorable Discharge). There are a number of collateral consequences associated with each that would take another few blog posts to explain in depth. But, generally, a punitive discharge will bar a servicemember from receiving any kind of veteran’s benefits. Some servicemembers also face the prospect of losing retirement pay. This can amount to hundreds of thousands of dollars of lost income. Finally, there is jail time. Most accused at a court-martial face felony level charges, meaning punishments of over a year in jail.

As you can see the stakes are high for an accused at court-martial. This is why it is important to get experienced legal counsel involved as early as possible. Once you are notified you are under investigation by the military, you should reach out to a lawyer familiar with the court-martial process, whether a TDS attorney or civilian attorney. Once you take this initial step, you can evaluate whether or not you want to hire an experienced civilian lawyer to protect your rights.

Not only do members of our team have experience in defending servicemembers accused of a range of offenses, we also add a wealth of experience in complex litigation.