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A: While every servicemember has a constitutional right to remain silent and rights under Article 31, UCMJ, it is a lawful order of your command to require you to report to the military law enforcement office conducting your investigation. In addition to normal booking procedures, such as fingerprinting and photographing, there are procedures that must be followed to read you your rights, even if your intent is to invoke them. There is a difference between being required to report to a location and being required to make statements to law enforcement.

A: Support can mean many things to different people. So can the term “command.” Realize that often the level of command who may be assuring you of their support is not the level of command that has the power to make decisions. For senior leader misconduct and any behavior covered as sexual assault or sexual harassment, these decisions are ultimately left to the special or even the general court-martial convening authority.

A: Yes. In all likelihood, even if both servicemembers live on a base, private party sales and transfers will be governed by military regulation. Military regulation routinely outlines that any sale between members must follow the surrounding state law. In many if not most states, state laws (like Washington) require that the sale go through a licensed dealer.

A: Probably not. The Inspector General is tasked with ensuring that the command follow procedures and policies outlined by regulation. With a substantial amount of discretion, the command has authority to take action against you. Often filing an IG complaint can anger the command and make your situation worse than had you not filed the complaint.

A: Probably not. In a system such as the UCMJ where decisions are largely within the command’s discretion, rarely is filing an Article 138 Complaint against the command going to give you the desired result. Article 138 is designed to give redress to Soldiers when there is a verifiable wrong by the command. That is not the same thing as the command deciding with which you disagree. Often, filing Article 138 complaints has the opposite result than the one intended, and in a world where humans are the decision-makers, can tend to cement the command’s mind to an action that is adverse to you. All cases are unique. For questions about your specific situation, please consider scheduling a consultation with an experienced defense counsel.

A: Perhaps. If a civilian heads military prosecutions for non-military specific offenses, we tend to believe that the number of courts-martial moving forward will decrease. However, we do not believe that allegations will decrease, and we highly suspect that those allegations will continue to be handled by military commanders in non-criminal, administrative actions. Those actions include administrative reprimands and elimination from the service through administrative separation packets and if required, by administrative separation boards / boards of inquiry. What is also troubling is that when sexual assault and domestic violence allegations are handled administratively, although the risks are lessened because there is no potential for jail time or sexual assault offender registration, the rights afforded to service members in administrative processes are substantially lessened. For instance, in cases we have handled that went an administrative route, even though we knew the Army CID file contained favorable evidence, the government is not required to hand over the entire file; they are only required to give what the commander based his decision to move forward with separation. And Army CID’s own regulation states that they may not release their file unless there has been a valid discovery request. Discovery requests are narrowly construed to mean a document that a defense counsel files in a criminal prosecution. Until these kinds of loopholes are resolved, members facing allegations of sexual assault and domestic violence will remain subject to the influence of their commanders, and the system remains deeply flawed.

A: Secretary of Defense, Lloyd Austin, announced on June 22, 2021, that he supports what is being called a seismic shift in the UCMJ that takes away commander’s control from both sexual assault cases and domestic violence cases in the military. He is the first Secretary of Defense to take this stance, despite a growing movement to create a civilian led prosecution office in the last decade. On May 6, 2021, the Army announced that their main military investigations body, Army Criminal Investigative Command (CID) will no longer be headed by a military General Officer. Instead, Army CID will be led by a civilian director. We predict that military prosecutions will soon be headed by a civilian figurehead as well.

Unfortunately, the short answer is that there may not be anything that anyone can do to
“correct” the issue or to remove the record. For more information, please read this
informative blog post.

If the command is aware of the DUI arrest, that is what’s known in most branches of service as a CCIR – commanders critical information requirement. In addition to reporting the event up the chain they would be required to report the arrest to the military law enforcement (NCIS, Army CID, Air Force OSI etc) who then runs a parallel investigation. The command must report back to the LE agency what action they took, if any. If you plead guilty (even a diversion or a deferred adjudication) the military rules recognize it as a conviction. Even the discussion to the military rule of evidence regarding impeachment by prior convictions lists deferred adjudications and diversions as qualifying convictions. The same language is in each of the service regulations and is used for an administrative separation for civilian conviction. If you have served for fewer than 6 years in service you would not be entitled to the basic due process of an administrative separation board and could be processed out of the service with a general under conditions discharge (and lose GI Bill, all veterans assistance with education benefits, and if ever later employed by a federal agency none of your time would translate as civil service retirement points) just on paperwork alone. Your only recourse facing administrative separation for the DUI would be to write a written rebuttal asking not to be separated, and those are rarely successful. With a general under honorable conditions discharge the VA will also deny care for PTSD or other service connected medical conditions. You can appeal it if he has prior honorable conditions discharges (if you served long enough to re-enlist) but those appeals require a great deal of time and money to attempt to overcome the denial.

It had been the case probably 10 or more years ago to avoid a military impact with a civilian DUI conviction, but the changes in policy and procedure since then have made that not the case.

The textbook answer is that a military accused does not have a right to a speedy investigation, meaning there is no official right to require the investigators to complete their investigation or for the command to make a decision about what to do, if anything, based off an investigation.  The other side of this issue is that investigations tend to drag on when there is not someone actively advocating for resolution. All cases are unique.

Our Practice Areas

Being a former service member herself and working exclusively on military cases, Ms. Stewart has amassed experience to help in the following areas of the UCMJ:

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