No. The “120-day” rule applies to the processing of a case after it has already been formally charged. The formal charging under the U.C.M.J. is known as preferral and occurs when an Officer formally swears either a commander or another person in the JAG office to the allegations and those charges appear on DD Form 458 with or without a continuation sheet. On the day of preferral, the 120-day clock starts and signifies that arraignment must occur (the first formal appearance with a military judge) within 120 days of the day of preferral; keep in mind that any requests for delay from the defense do not count against that 120 days. This requirement is the mechanism to ensure the service member’s right to a speedy trial. The “120-day” rule does not start from the date of the alleged incident. There is no recognized right to speedy preferral, though in rare circumstances, a due process violation is lodged if failing to bring charges in a timely manner and evidence is lost as a result of that delay. Also, lengthy delay in bringing some charges can mean that the offenses can no longer be brought to trial at all because of the statute of limitations. A statute of limitations is the deadline within which an offense must be charged or else it can never be brought. For most offenses, the statute of limitations is 5 years; there is no statute of limitations for murder. In changes to the U.C.M.J., the statue of limitations for sexual assault allegations, even if they arise off a military installation, has been extended and for some sexual offenses, there is no time limit when they can be brought.
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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