SAN DIEGO MILITARY COURT-MARTIAL LAWYER
Handling Matters in All Military Courts
The Military Court Martial is a judicial system that determines how military members accused of a crime should be handled. Not every court-martial is the same. The three general kinds of Court Martial are:
A San Diego court-martial lawyer is often the only support that a military member has when facing serious criminal allegations from the government. The court-martial deals only with violations of military law under the UCMJ. A military member can be tried in both a military court and also a State Court if the crime violated the UCMJ and State law.
Article 32 Hearing
An article 32 hearing is an early part of the court-martial process that requires an investigating officer to present certain evidence to the military court. The Article 32 hearing is like a preliminary hearing in the civilian courts in that it’s a necessary step in the process of deciding the outcome of a case. The investigating officer can be a trained lawyer however that is not always the case.
The Investigator will consult with the Judge Advocate assigned to the case and look at all available evidence, witnesses, and the defendant’s service record. The officer will be assigned to represent the US government while the accused is allowed his own counsel at the hearing. The officer will present non-testimonial evidence relevant to the case and examine witnesses. Defense counsel is also permitted to examine witnesses and present evidence that may be relevant to the charges alleged.
Military rules of evidence are not strictly adhered to in an article 32 hearing because the setting is less formal than that of a general court-martial. The commanding officer will still follow certain rules of privilege when getting testimony however both the commanding officer and defense counsel will be allowed to ask questions that may otherwise be barred at general court-martial.
The commanding officer that is assigned to investigate the case and put forth the hearing will look at elements of the crime and the strength of evidence to support allegations. Another strong consideration is the accused’s service record. Evidence showing a long and exemplary career can be strong factors against recommending a case go to general court-martial.
The accused can waive their right to an Article 32 hearing. Waiving the hearing is not often recommended but can be done as a strategic consideration. If defense counsel has established communication with the investigating officer and feels there is a benefit to the outcome of the case to waive the hearing it is something the accused should consider. Most proceedings in military court including the article 32 hearing are open to the public. Disclosing harmful and embarrassing facts about a case may not be in the best interest of a defendant if there are other options. If a military lawyer thinks that there is alternative punishment or diversion available that doesn’t involve court-martial then waiving the investigative hearing could make sense.
The summary court-martial is the most simple military court procedure that involves judicial punishment separate from command. The service member is entitled to refuse a summary court-martial if they want a more formal procedure involved with a special court-martial.
One advantage of a summary court-martial is that typically only one judge advocate will preside over the case. The punishment imposed in summary court-martial is far less than the other court-martial proceedings. In a summary court-martial, the accused does not have the right to counsel. This does not mean however that preparing for a summary court-martial should be done alone. Rules of evidence will still apply which means that preparing a defense, witnesses and cross-examination questions are very important.
Punishment from a summary court-martial generally will not be more than 30 days hard labor or confinement of 45 days. The loss of pay with a guilty finding can be one or two months pay with a two-thirds reduction. Most significant to a summary court-martial is that even if the accused is guilty they cannot receive a dishonorable or bad conduct discharge. The military can also NOT dismiss the service member solely for guilt at a summary court-martial.
The service member must consent to a summary court-martial because it does not have the rigorous formality of a special or general court-martial. The potential benefit is that any punishment is significantly reduced. In contrast, there are fewer officers and judges involved to try the case and decide on the facts presented against the accused.
A San Diego military lawyer is most often needed for the general court-martial due to the serious nature of offenses involved. The general court-martial is reserved for the most serious criminal offenses. Before a case will go to general court-martial there will first be an investigative hearing called an article 32 hearing. If at the article 32 hearing it is determined there is sufficient evidence of a serious offense, then a general court-martial can be convened.
Accusations of violent offenses like assault and battery as well as sexual crimes by a military member are reserved for general court-martial. This level of court-martial requires a five-member court that must contain a minimum number of enlisted personnel. The defendant can also request a trial by judge only in the case of a general court-martial. The general court-martial can impose a punishment under the UCMJ if an accused is found guilty. Punishment can be wide-ranging and includes years in jail for more serious offenses. Other than jail in military prison, defendant’s found guilty in a general court-martial can be dishonorably discharged or placed in other confinement. Officer’s found guilty can be dismissed from military service.
Avoiding The General Court-Martial
Every case in military court is different and requires an experienced court-martial lawyer to give a true and accurate assessment. Investigations and time spent with evidence can often reveal inconsistencies in the prosecutor’s evidence. A skilled criminal lawyer knows how to get the most out of poor evidence and how to build a defense for his client. Getting a case out of court-martial proceedings can be done with an understanding of how military law works. NJP falls under Article 15, which is a non-judicial punishment for minor offenses. An article 15 under the UCMJ is an alternative sentencing for minor offenses that avoids the military court entirely. The consequences of an Article 15 are far less than anything that can be imposed by court-martial.
The special court-martial is sometimes convened only after a service member has refused several alternatives in his case. Often the military member has been offered an Article 15 NJP or summary court-martial, which he has the right to refuse. Refusal will usually lead to a special court-martial proceeding. Like other court-martial trials, the court will have a military judge, prosecutor, and the defense counsel. This can be considered the middle range of court martials. As in a general court-martial, the enlisted service member can request the court-martial be conducted by a judge only without the three-member panel allowed under the UCMJ.
A special court-martial is used for cases where the possible punishment is not more than 12 months confinement. Although this court-martial is not for the most serious offenses being found guilty can still lead to a significant loss of pay. A guilty finding from a special court-martial often results in a bad conduct discharge. As later discussed such a discharge can mean the complete loss of retirement and veterans benefits. The stigma and damage to a military members record can be felt years after a special court-martial.
Following a criminal trial through court-martial the next step is often a discharge board for the service member. The respondent must face the board and present a defense on his behalf. It is not the military’s burden to prove facts. The board is there to review past conduct that can go back years. Any service member who is facing a discharge from the military should know that the type of discharge received can determine future benefits and career after leaving the military. Before a discharge can take place there will be a notice sent to the individual who is facing discharge.
Administrative Separation Board
If the military is seeking to separate an individual from military service this is sometimes done through a separation board. Service members who have a long career or have been in service at least six years have a right to be before a separation board.
An individual is always given notice that they are being considered for separation. The reasons for separation can come from many factors including criminal conviction, court-martial under the UCMJ, drug and alcohol issues or insubordination. The administrative separation board, however, is NOT a court of law. The rules of evidence and criminal procedure do not apply in these hearings. The other factor going against a service member facing the separation board is that the standard of proof for the board is not “beyond a reasonable doubt.” The board can reach their conclusion for a discharge based on any evidence and events in a service record. The board needs to only find by a preponderance of evidence that a certain type of discharge is appropriate. The burden in these hearings is on the service member to show that they should remain in the service or have an honorable discharge.
Separation from the military can come by voluntary discharge such as a general discharge or through several other military discharge classifications.
Bad Conduct Discharge
This type of discharge is only given following a court-martial. Those facing a court-martial and found guilty are usually in violation of a serious or felony offense. Since a bad conduct discharge has serious negative impact on a service member leaving the military it is reserved for those who have served time in a military prison. Anyone given notice that they are facing a bad conduct discharge should consider how damaging this would be after they are separated from the military. This discharge will mean that most or all veteran’s benefits will be lost if the discharge is upheld. The loss of future pay and other benefits is a good reason to insist on a separation board to fight for those benefits earned with years of service.
The dishonorable discharge is the most damaging designation any military personnel can have when leaving the service. Criminal conduct that is found in a general court-martial such as a violent or sex crime can lead to dishonorable discharge. This kind of discharge not only destroys a career but also the prospect for work outside of the military. Pensions and other benefits will be forfeited with a dishonorable discharge. The individual is forbidden from owning or possessing firearms and this record will also stay with a person seeking employment in the private sector.
Other Discharge Types
Another category of discharge includes Other Than Honorable Conditions. This type of discharge typically involves more minor offenses than those heard in a court-martial. However violent offenses or conviction in civilian criminal court can be used as reasoning to find other than honorable conditions. An Office Discharge is exclusively used for commissioned officers. Commissioned officers can be found guilty in a general court-martial however their discharge comes in the form of a Dismissal notice.
Military Discharge Review
Often the type of discharge a person was given simply was not appropriate. Seeking to change the discharge can be necessary when seeking veterans assistance or treatment for ongoing medical conditions. Private sector work limitations because of a bad discharge can prolong the time before a real career can get started. A discharge can be upgraded with proper application and preparation for the review.
If you have any further questions on court-martial hearings or military discharge, contact our San Diego military criminal defense lawyers today to set up a free consultation at our office.
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