We are often asked, what does it mean to get charged in the military?
There definitely seems to be some confusion about what constitutes charging, even people who contact the firm, when they’re filling out the documentation or the kind of consult that they’re trying to get, they will often answer yes.
That they have been charged when really what’s happened is they’ve been advised of their rights by military law enforcement or by their command pursuant to Article 31 Bravo. When that person has only been brought in for potential questioning and advised of their rights, even when it’s done so on the form that advises them with particularity as to the charge or charges of which they are suspected, this is not an actual formal charging.
What this means is that they are under suspicion of these potential crimes under the UCMJ. And they’re being appropriately advised of their rights and appropriately demonstrated what it is with particularity that they’re suspected of an actual formal military charging only comes from the issuance and the swearing of a DD form 458.
This is an official charge sheet. And this means that what has been initiated against this person is formal court, martial charges. CID, OSI, NCIS they do not charge anyone. The only way that a formal charging occurs is if the command has independently decided that they believe one or more offenses under the UCMJ have occurred, and that it rises to the level of a formal court martial charging. The other aspect of military UCMJ and charging that seems to sometimes confuse people is if they have received non-judicial punishment, Article 15, captain’s mast. They sometimes believe that that constitutes a charging.
We want to be very specific and very careful when we’re using the language that we’re using, because it really does have a different legal effect.
A formal charging can only come from a commander, swearing on a formal chart sheet, which is the DD form 458, and then advising this person about it because that’s required. They’re required to advise the person that they have been formally charged. Part of that formal issuance of that charges also mean that they will receive a copy of that DD form 458.
Jocelyn Stewart is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide. Contact the Law Office of Jocelyn C. Stewart at 1-888-252-0927
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