Nowakowski & McManus, LLP: FAQ

Nowakowski & McManus, LLP, frequently receives requests for basic information about military law and legal procedure. In order to provide this information in a ready-access format, we have assembled a list of many of the questions we regularly field. Please note that this question and answer session is not intended to be legal advice.

What law governs military members?
The Uniform Code of Military Justice, 10 U.S.C. 831, governs what military members can and cannot do. The Code, often referred to as the UCMJ, applies to military members 24/7/365. Thus, it does not matter whether the offense you committed occurred while you doing your job, whether it occurred on a military installation, or even whether you were on leave at the time.

What types of offenses are included in the UCMJ?
The Code includes most of the normal crimes that you find in the civilian world, such as murder, rape, robbery, assault, and treason. There are also many offenses that you may only find in the military setting; these include adultery, sodomy, failure to go to work, failure to obey orders, and dereliction of duty. In the civilian world, if you are late to work, you may be fired; in the military it may be a crime.

Do I have any rights under the UCMJ?
Absolutely. In fact, your rights under Article 31, UCMJ, were in place even before your civilian counterparts had their Miranda warnings and are more protective in some aspects. For example, in the civilian world, one must be advised of his/her rights only during a custodial interrogation (meaning you are suspect and you are in custody). The rights of a military member, however, are somewhat broader in that a rights warning must be given before any military suspect is interrogated - regardless of whether the interrogation is custodial in nature. If the questioner did suspect the member being questioned, and did not give him/her a rights warning, any admissions would likely not be admissible against him/her.

What is a court-martial?
Military trials are called court-martials and the juries are composed of military personnel (and referred to as members).

What types of courts-martial are there?
There are three types of courts-martial: Summary court-martial, where one officer (not necessarily a lawyer) serves as Judge and Jury with the maximum confinement time being 30 days; Special court-martial, the military equivalent of a civilian misdemeanor with the maximum confinement time being 12 months; and General court-martial, the military equivalent of a civilian felony court with unlimited punishment.

What does it take to be convicted in a courts-martial?
In most cases, only two-thirds of the members need to find you guilty of an offense in order to be convicted. This is very different than in a civilian world where an unanimous jury verdict is necessary.

Are there appeals of convictions in the military?
Yes. Each branch of service has its own court, i.e., the Air Force Court of Criminal Appeals. The judges on these courts are made up of military attorneys. There is a possibility of a second appeal to the U.S. Court of Appeals for the Armed Forces. The judges on this court are civilians.

Besides a courts-martial, how else can the military discipline its members?
There are a host of options available. The most serious is a non-judicial punishments (NJP) under Article 15, UCMJ; this procedure is referred to as a Captain's Mast in the Navy, an NJP in the Marine Corps, and an Article 15 in the Army and Air Force. If you accept the NJP, then you are accepting the forum for your possible discipline. Your commander will then act as the judge and jury. Remember that you have a right to turn down a non-judicial punishment and request a trial by court-martial (except sailors on a ship). Doing this may or may not result in court-martial charges, depending upon the strength of the evidence against you and your prior disciplinary record. Think carefully before rejecting an NJP, and never do it without personally talking to an attorney.

Other non-judicial procedures include administrative separations for misconduct, overweight, medical issues and sexual orientation; demotions; medical evaluation boards; flying evaluation boards; letters of reprimand/admonishment/counseling; and adverse evaluations or fitness reports.

What can happen at an administrative separation/discharge board?
The government will present its case either through a legal advisor or a government representative (sometimes referred to as a recorder). The recorder may be a prosecutor or paralegal/legalman. The government will present its case to a board consisting of military members. There usually is no judge present at these boards and the rules of evidence normally do not apply. If the board agrees with the government, then you will be separated from the military and your military service will be classified as honorable, general or other than honorable. If you are discharged, you are not entitled to your military retirement. Additionally, if you receive anything other than an honorable discharge, you probably will not receive any separation pay and your VA benefits and GI bill may be adversely affected.

I don't trust the military. Do I have a right to hire a civilian attorney to represent me?
Absolutely! Your Article 31 rights specifically allow you to hire any attorney that you wish. This is especially important since the military attorney who may be appointed to assist you may have never tried a case or may have less than 1 or 2 years experience. Ask your attorney about his/her experience: How long has your attorney been an attorney? Been in the military? How many jury trials has your attorney had? What results were obtained? Is your attorney willing to listen to you and fight the charges against you? If you are not satisfied with any of the answers to those questions, you should seriously consider hiring a civilian attorney. The decision to hire an attorney should be made as early as possible, so that you can be represented throughout the criminal or administrative action. In hiring a civilian attorney, note that a regular civilian attorney who has not handled court-martial proceedings may be clueless as to the military.

Can a person convicted and punished in a state civilian court later be punished for the same conduct in the military system?
As a matter of law, yes, because constitutionally there is no double jeopardy or double punishment. Both the Federal government and a State may prosecute someone for the same conduct. As a matter of policy, however, the military usually does not court-martial someone for an offense for which they have already been tried by a State court. The military will enter a civilian conviction in the member's personnel record and take administrative actions that it deems necessary, such as letters of reprimand, demotions, withholding of promotion, suspend various privileges, require alcohol or drug screening, etc. The military deems these actions as administrative matters rather than punitive; the reality is they may also affect your military career.

Can the military order a drug test?
Yes. The military can lawfully order a member to provide urine samples for random drug testing and other purposes. The military was among the first to use urinalysis on a large scale to deter drug use.

What are Article 31 Rights?
Article 31 of the UCMJ applies to any questioning of a service member suspected of an offense, even if you are not in custody. In short, you have the right:

Remember that SFs, OSI, MPs, CID, etc. are ALL trained interrogators and are not always honest with you regarding the evidence they may or may not have. They will record every detail of your response or lack of response - to include where you were looking, hand movements, etc. These gestures may be indicative of your guilt.

Remember also the military has many available resources; so if you lie, you will probably be found out. Do not try to outwit your interrogators! Be smart - talk to an attorney before you talk to your interrogator. Whether you are guilty or not, your investigator is NOT your best friend.

Frequently Asked Questions (FAQ)