Topics and Areas of Representation
A Court Martial (CM) is a criminal trial in the military. A “Defendant” is called the “Accused.” In general, the Accused has many Constitutional and customary protections afforded to those accused of a crime. These include the right to counsel, right to present evidence, right to confront witnesses, right to remain silent, right to plead not guilty or guilty, right to a jury (called a “panel”), and due process considerations.
There are three types of Courts Martial.
Summary Court Martial
Rules for Court Martial 1301 governs a Summary Court Martial (SCM). A SCM is a unique criminal trial with no permanent conviction record nor punitive discharge option. It is a punishment tool for E6 enlisted and below. Officers are not eligible to face a SCM. An individual can object to a SCM and would then generally face a trial by a higher level of Court Martial (generally speaking this would be a significant mistake because of the significantly worse potential penalties involved with a higher level of Court Martial).
Although the Accused is not entitled to a lawyer, his civilian defense attorney can represent the Accused at a SCM, consistent with Rules of Court Martial 502(d)(3). It is a hearing with a non-lawyer impartial officer acting as the Judge, called the Summary Court Martial Officer. He will review the evidence and listen to witnesses. If the Accused brings an attorney, then the Government can present an attorney. The Accused loses some due process considerations, the rules of evidence are relaxed, and there is no right to a panel to review the evidence.
A SCM can be thought of as a small step more severe than a Field Grade Article 15. The punishments are mildly worse and include the possibility of up to 30 days incarceration (E5 and above cannot be confined) or 45 days hard labor, forfeiture of 2/3rds pay for 30 days and reduction to E1. There is no permanent Federal conviction if an Accused is convicted, and an Accused does not face a Punitive Discharge. If an Accused is convicted, the Summary Court Martial Officer will file a recommendation to senior leaders where it will be approved or made less severe. The Accused can appeal the decision to the General and to the Office of the Staff Judge Advocate.
The reality is that following any conviction, however, an Accused will likely be considered for Administrative Discharge pursuant to regulations (Army Regulation 635-200).
Special Court Martial
A Special Court Martial (SPCM) is the generally considered equivalent to a misdemeanor court, where the maximum penalties are 1 year in jail, loss of 2/3rds pay and benefits while in jail, a Bad Conduct Discharge, and reduction to E1. The reality is that following any conviction, however, an Accused will likely be considered for Administrative Discharge pursuant to regulations (Army Regulation 635-200).
An Accused benefits from maximum due process rights, including the right to a defense lawyer, remain silent, present evidence and witnesses and cross examine same, right to a panel, etc. If an Accused is convicted he will receive at least 5 days of credit in jail per month for good behavior, and may be eligible to earn more credit through various programs in confinement. Any sentence is reviewed by the Staff Judge Advocate and the Commanding General within 120 days. An Accused can file for immediately clemency through the Commanding General (asking for any form of leniency), and any sentence over 6 months confinement or a Punitive Discharge will get an automatic appeal with the Army Court of Criminal Appeals (ACCA). An Accused might also get the opportunity to have his case heard by the Court Appeals for the Armed Forces (CAAF) or even the Supreme Court of the United States (SCOTUS).
General Court Martial
A General Court Martial (GCM) is the most serious level of criminal trial for military members, and is generally equivalent to felony type crimes (as defined by a maximum penalty of greater than 1 year in prison). A GCM conviction is a Federal conviction, and may be considered one or more felonies under state law. Maximum penalties also include up to life in prison or death (subject to the combined maximum penalties under the UCMJ), a Dishonorable Discharge, reduction to E1, loss of all pay and benefits during confinement, or hard labor. The reality is that following any conviction, however, an Accused will likely be considered for Administrative Discharge pursuant to regulations (Army Regulation 635-200).
An Article 32 pre-trial hearing investigation is unique to a GCM. The purpose of this, in theory, is similar to a Grand Jury hearing in which the Government will present evidence to a 3 member panel who will make non-binding recommendations to senior leadership as to the appropriate disposition of the case (for instance, to dismiss, to adjudicate this at a lower level such as Article 15 or Special Court Martial, or to adjudicate this at a General Court Martial). In general, the Accused gets his first look at the strength of the case against him/her, and will have the opportunity to cross examine witnesses and attempt to use some defense strategy to get the case dismissed or adjudicated at a lower level, and at least lock the witnesses in to their a testimony. Recent changes in the law have allowed rape and sex assault victims to skip the hearing, which is a grave injustice because this is where their inconsistencies are often exposed. Regarding the disposition of the case, in reality, these recommendations are almost always ignored by the leadership who will typically err on the side of being safe and protect their own careers and go forward with the charges.
Just like with a SPCM, at a GCM the Accused benefits from maximum due process rights, including the right to a defense lawyer, remain silent, present evidence and witnesses and cross examine same, right to a panel to hear the evidence, etc. If an Accused is convicted he will receive at least 5 days of credit in jail per month for good behavior, and may be eligible to earn more credit through various programs in confinement. Any sentence is reviewed by the Staff Judge Advocate and the Commanding General within 120 days. An Accused can file for immediately clemency through the Commanding General (asking for any form of leniency), and any sentence over 6 months confinement or a Punitive Discharge will get an automatic appeal with the Army Court of Criminal Appeals (ACCA). An Accused might also get the opportunity to have his case heard by the Court Appeals for the Armed Forces (CAAF) or even the Supreme Court of the United States (SCOTUS).
Finder of Fact
A finder of fact will make the decision of Not Guilty or Guilty, and if Guilty will decide the punishment. The finder of fact can either be a Military Judge alone, or a Panel of senior Officers and Enlisted Soldiers. The choice rests with the Accused. If the Accused elects a Panel, then the process of Voir Dire occurs, which is a fancy way of electing impartial Panel Members to hear the case. Panel members who are biased will be removed during a lengthy process. Between 5 and 10 Panel members will be seated to hear the case. During the trial, the Accused has the right to a lawyer, can present witnesses, testify, and cross examine witnesses, present evidence, etc.
After hearing the case, they vote in secret and it requires a 66% or greater vote to convict in order to convict the Accused. If the Accused is convicted, the case goes to the Sentencing phase to determine the punishment. The Accused again has the opportunity to present evidence, testify, and present witnesses and cross examine witnesses. After hearing move evidence, the Panel secretly votes on a sentence using specific guidance. In a Judge alone case, the Judge determines guilt or not guilty, and determines the sentence if convicted. If guilty and sentenced, the sentence begins immediately. If the Accused is acquitted, the case is over.
Adverse Administrative Actions
These are ‘career killers’ which either directly end your career (Separation) or have such a negative impact on your career that your career will naturally become more difficult and come to an early end (GOMOR, loss of rank, loss of security clearance, relief for cause, etc.).
Involuntary Separations for Enlisted and Officers
Army Enlisted Soldiers are subject to separation under Army Regulation 635-200 and Officers under AR 600-8-24. The fact is, the military is a career, not an entitlement. Like it or not, the military can and does ‘fire’ members who are not meeting the standard. In times of rapid downsizing, like now (2011-2016 and beyond), patriotic and hard working Service Members may find themselves facing unfair Involuntary Separation, and need the help of an experience legal team.
A General Officer Memorandum of Reprimand (GOMOR)
This is a ‘career killer,’ which means that it will have serious negative impact on your career and often end your career. These are given out regularly for allegations of misconduct where there is only a hint of evidence against the Service Member (for example, a DUI where the Service Member gets the case dismissed on a technicality). You have the right to fight this.
Special Forces or other Service School Tab Revocation
Various service schools which award the wear of a Tab or Badge can revoke the same for allegations of misconduct. For instance, an Airborne recipient who later is a jump refusal, may lose his tab. A Special Forces individual, who is alleged to have been involved in misconduct, may lose this Tab. You have the right to fight this.
Security Clearance Revocation or Suspension
Allegations of misconduct will nearly always result in the suspension or revocation of a Service Member’s security clearance. Of course, this means that you can’t do you job or access your computer or files. If this is permanent, it will also likely mean you will be separated from the military. You can fight this.
Relief for Cause, Referred Report
Allegations of misconduct may often result in being fired from a position and/or having a very negative Evaluation Report, or even a Referred Report. All of these actions are career killers, and will likely result in involuntary separation. You can fight this.
Administrative Reduction in Rank
A Commander may elect to administratively reduce a Service Member in rank for inefficiency or other reasons. You can fight this.
Loss of Driving Privileges
Driving on a Military base is viewed as a privilege which can be revoked. The Military revokes driving privileges frequently for a variety of reasons including DUI and driving on a suspended license or tags. You have the right to appeal this.
If you are being separated, you have the right to know the reason why you are being separated, and to meet with a lawyer to explain your options. If you have more than 6 years in the service, or if you are being recommended for an Under Other Than Honorable Conditions Discharge (OTH), then you have the right to an administrative hearing to attempt to either be retained in service, or improve your discharge. Sometimes that right to a hearing can be leveraged for a better result, so never waive it until you are satisfied you are getting what you want. If you are not entitled to a hearing, then you can attempt to advocate to your command to stay in or get a better discharge. You generally have 7 days from notification to meet with a lawyer and make a decision.
If you are being administratively reduced in rank, you have the right to a hearing. If you are facing a GOMOR, Tab Revocation, Loss of Security Clearance, Relief for Cause or Referred Report, you have administrative rights to submit matters to advocate your position. I recommend you always do this.
Administrative Separation Board Hearing or Reduction in Rank Hearing
This Separation hearing is important, and similar to a mini-trial. There are 3 board members and you will have the opportunity to present evidence, make a statement, cross examine witnesses, and other due process considerations. Of course, the Prosecutor (called the Recorder) will present evidence against you. The outcome of this hearing will determine your career path. The board members will hear and review the evidence and then vote in secret to either recommend to retain you, or separate you (with the same or better recommendation as you were given from your command). A Reduction in Rank hearing is similar except the recommendation will be to keep rank or reduce rank. That recommendation then goes to the Commander who appointed the Board, and he will ultimately decide (however his options are limited to approving the recommendations or taking action more beneficial for the Service Member).
To win this hearing, you need expert legal representation, advice, and preparation. I have had tremendous success at saving the careers of many Soldiers, and getting most of my clients either retained in service, or an Honorable Discharge.
Types of Discharges
There are three types of discharges – Honorable, General Under Honorable Conditions (General), and Under Other Than Honorable Conditions (OTH). Honorable is the best, and what every Veteran who completes his or her service naturally receives. It entitles a veteran to maximum benefits. A General Discharge is generally represents some level of misconduct, but overall an Honorable service record. And an OTH represents poor performance during the period in consideration. These are not to be confused with Bad Conduct and Dishonorable Discharges and Dismissals, which are strictly punitive discharges, given only at a Court Martial.
Impact on Benefits
There is no cookie cutter explanation but in general, the better the discharge, the more benefits a person will be entitled to receive. There are many benefits at play, perhaps 50 categories. A comprehensive overview is outside the scope of this review. There are documents that are hundreds of pages in length which explain the complex relationship between the variables of discharge type, discharge reason, different benefits, and other variables at play. A Service Member with at least once completed Honorable Discharge will have vested in some benefits. It will be important for the Service Member to learn how his or her individual discharge will impact the benefits important to him or her (for instance, the GI Bill, separation pay, relocation pay, medical or disability pay, etc.). If a person is in the process of a Medical Discharge, that may be halted until the completion of the Involuntary Separation process.
How can The Law Firm of Ryan Sweet help?
As a very experienced administrative law and criminal defense lawyer, with a track record and reputation for outstanding advocacy and results, I believe you need my representation. You will be detailed a military Trial Defense lawyer. I was a TDS lawyer and know they are extremely overworked and spread thin, and carry a significant case load. Often this has a negative impact on individual cases. However, I hand pick the cases I want to take and carry a lighter case load. This means that you will get my full attention. And you will also be able to keep your TDS lawyer, so you will get two lawyers on your case.
I offer free, no obligation consultations. Review my website and online profiles to read about my victories, recommendations and testimonials at www.rsweetlaw.com. Whether you hire me or not, I wish you the best of luck.
An explanation of Non Judicial Punishment, otherwise known as an Article 15. Here you will learn about the legal authority and the pros and cons of accepting the Article 15 or declining it and demanding a Court Martial.
What is an Article 15- Non Judicial Punishment?
Article 15 is found in the Uniform Code of Military Justice under Part IV Section 815 – Non Judicial Punishment. It is a Commanders disciplinary tool used for swift and relatively light punishment for allegations of misconduct, as explained in the Articles of the Uniform Code of Military Justice. Generally speaking, Article 15s are appropriate for low level offenses and used to punish Company Grade officers and Junior Non Commissioned Officers and lower enlisted Service Members. The burden of guilt and the standard of proof to find guilt is the same as with a Court Martial – it rests with the prosecution and is “proof beyond a reasonable doubt” to convict an individual.
What are Article 15 penalties? Depending on an individual’s rank, the type of Article 15 and the rank of the individual administering the Article 15 (company or field grade, or General Officer), the an Enlisted Service member is generally looking at loss of some or all rank, up to 45 days of pay, and loss of 45 days of liberties, and a reprimand, whereas an Officer faces loss of half pay for two months and loss of liberties for a month (arrest in quarters).
Should I demand Trial by Court Martial?
Almost never! Consider that those facing Court Martial would love to only be receiving an Article 15 as evidence of their vast differences. In my view, you should almost never turn down Non Judicial Punishment. You may get different advice from different lawyers. But I am very experienced at this, and I can think of very few circumstances to turn down an Article 15. Rare, case-by-case, situations where it may be appropriate to turn down an Article 15:
Evidence suppression or other motions that might determine the outcome of a trial which might be considered at an Article 15 but not admissible at Court Martial. However, there are no guarantees with motions to suppress, so this rarely is the deciding factor.
Unable to get fair and impartial hearing. Perhaps the Commander will not give a fair hearing, in spite of the evidence being overwhelming in favor of the accused individual and an acquittal. However, here I would simply request a different Commander administer the Article 15.
Generally speaking an Article 15 would always be better than a Court Martial. In fact, most people facing Court Martial would love to only be facing an Article 15! Consider this - The important protections and rights are effectively the same whether you receive an Article 15 or a Court Martial:
Same 'beyond a reasonable doubt' standard to prove guilt.
Same basic finder of fact and punishing authority - a company or field grade officer.
Same right to remain silent, present evidence, present witnesses and make a statement in writing or in person.
Same right to have someone speak on your behalf.
Same right to appeal the decision to the next highest authority within 5 days.
The Commanding General ultimately oversees and approves or disapproves Courts Martial, and has strong influence over all personnel on base including the Judge, Staff Judge Advocate, and Panel Members and even the Trial Defense lawyers! A Court Martial is referred by the Brigade Commander or Commanding General. The Military Judge is a Field Grade officer, the Panel Members are senior enlisted and officers. I fear high level of unlawful command influence upon ALL military members at a trial. And it only takes 2/3rds of the Panel members to convict. So, that means that if you have 6 panel members, only 4 have to believe you are guilty. Not very good odds, given that the panel members are vested in Good Order and Discipline, appointed by the Commanding General, and look down on misconduct.
Even the Trial Defense Counsel is an officer in the military, subject to the same UCMJ that the accused is, and ultimately is only in Trial Defense briefly in his or her career. A career minded Defense Judge Advocate will ultimately hold other jobs in the JAG Corps and is often hamstrung in his advocacy as a result of concerns about rocking the JAG boat and maintaining good relationships with other JAGs and Judges. A civilian attorney does not have the same chain of command.
What if I am found guilty?
There are significant differences in sentencing maximums and automatics between an Article 15 and a Court Martial.
Article 15 is completed within days, and any sentence is over relatively quickly, taking away the stress of the anticipation. This results in less uncertainty, less stress, and less complications over the long term. A service member can lose rank and pay and privileges, which are certainly painful in the short term. And that service member may also face involuntary separation from the service. But common sense says that any severe punishment in an Article 15 by an officer would have similar or worse results at a Court Martial. And this makes sense if you think about it. If there was evidence of crime (theft, adultery, drug use, etc.) sufficient to convict at an Article 15, it would also result in a Court Martial conviction.
Outside of the military, under nearly all circumstances, an Article 15 conviction will be meaningless in the civilian world. Frankly, nobody will care because it was administrative in nature.
And locally filed Article 15s may have some impact on a career in the short term, but probably not much in the long term. Permanently filed Article 15s aren’t ideal, and can be petitioned to be sealed.
Involuntary Separation may result from an Article 15 conviction. Under some circumstances (an Other Than Honorable Discharge recommendation, or if he or she has more than 6 years in service) a Service Member can fight to stay in the military. But again, if a person were administratively kicked out, there is a good chance that a Court Martial would have resulted in a conviction and a punitive discharge – both of which are worse than an Article 15 and an administrative involuntary separation. And this also makes sense. If the Service Member were convicted of offense(s) (for instance drugs, theft, assault, AWOL, assault, etc.), then he or she would likely face punitive discharge at a Court Martial, and will likely face administrative discharge after an Article 15. If it’s a relatively light Article 15, the odds of actually being separated are not very high, and a person could beat a Separation hearing if they are entitled to one.
A Summary Court Martial is a low level Court Martial, and effectively the same or slightly more harsh than an Article 15, with up to 30 days in jail as part of the sentence. The main advantage is having a non-commander as the Judge (called a Summary Court Martial Officer). Understand that he is appointed by the unit Battalion or Brigade Commander so there is the risk of Unlawful Command Influence.
Conversely, a General or Special Court Martial conviction is a lifetime Federal conviction that will absolutely interfere with future job, credit checks, school applications, and life in general. In may be equivalent to a felony conviction, prohibiting gun ownership and voting rights. If convicted, you could easily spend a month or a few months or even a few years in jail, lose rank and pay, etc. A conviction can put Veterans Benefits in jeopardy, and place a permanent smear on your veteran’s status. But the big practical risk is the automatic lifetime conviction. There is also significant stress involved in anticipation of a Court Martial.
Trials are unpredictable. Courts Martial are trials, and every lawyer will tell you they are completely unpredictable. No lawyer will ever give a guarantee about any trial result, because of their compete unpredictability.
I’m a fighter, but generally wish to shield my clients for unnecessary risk exposure. You can still fight at an Article 15. But at a Court Martial, in a best case scenario, even a full acquittal at a Court Martial, there are months of sleepless nights and if you hire a private lawyer the expense of fighting the Court Martial, which will be many thousands of dollars. Also consider that the odds are stacked greatly against a full acquittal. I believe that the conviction rate at Court Martial is in the high 90%. Not a good idea to roll those dice when those are the overall odds, with so much at stake. Odds are a conviction, and a sentence what will likely make a person regret their turning down the Article 15.
I want my day in court!
No, you really don’t. You aren’t going to prove any points, embarrass your chain of command, or hold the floor to protest your unit. You aren’t going to get any apology from the unit or Army for wronging you. The Military Judge isn’t going to have any sympathy for you, or scold your commander. The media doesn’t care about the fact that you feel that your leadership are mean or wrong. Your case won’t end up on the news nor will there be cameras following you into the courtroom. This isn’t like in the movies, where you call your Commanders bluff by demanding trial. In reality, you will quietly demand your trial, and get a trial, and probably get convicted. The Army won’t notice or care, your unit won’t care, and you’ll become a bitter individual and in a decade regret your actions, and bad decisions in demanding a trial. You’ll disappear into obscurity as that Soldier that got convicted for his misconduct and kicked out, and become a statistic.
Let’s be honest. You probably made some bad decisions, which led to the Article 15. Now it’s time to start making good decisions by consulting with a lawyer, and following sound legal advice. That advice is probably to accept the Article 15, and fight it on those terms.
What should I do?
You need a strong, experienced defense legal team. As one of my former clients once said, “…your life story is that important.” Don’t settle for a detailed attorney. While most are good, they are also overworked and spread thin. With a hired lawyer, you can keep your detailed lawyer, and two lawyers are always better than one. The difference in results can be significant. Hire a lawyer that will make you his number one priority and focus on the needs of your defense. I worked as a Judge Advocate Trial Defense lawyer and as a Judge Advocate for several years. The hours and work load make it nearly impossible to give the individual attention you should give to individual cases. As the owner of Law Firm of Ryan Sweet, PLLC, I hand pick my clients and take less cases so I can give my clients the personal attention they need. I have successfully gotten Article 15s dismissed and also had clients who I helped defeat Article 15s. I have also earned great results at Court Martial by getting cases and charges dismissed before trial and otherwise excellent trial results. That is the type of dedication and determination I give to my clients.
Bottom line, if it's a weak Article 15, then simply beat it while the stakes are low. I'd personally rather fight a weak Article 15 with low stakes gamble with the potential for loss than fight a weak Court Martial with high stakes gamble with the potential for loss. If it's a strong Article 15, then it generally would be a strong Court Martial. Clearly the potential and automatic penalties are much, much worse at a Court Martial if you lose, without exception.
What can Law Firm of Ryan Sweet, PLLC, do for you?
First, you will get a free no-obligation consultation. I will review your case and facts with fine detail and listen to your side with an open mind. I will give you my advice and give you an honest, no bull, appraisal of the situation. If you hire my firm, I will interview key witnesses and review evidence. I will attempt to get the Article 15 dismissed by negotiating with the prosecutor and/or Commander. If you decide to accept the Article 15, I will help you prepare the best defense available and/or mitigation of the sentence if necessary. It is ultimately your decision whether to turn down the Article 15, and if you do, I will represent you with total zealous representation at your Court Martial.