Military Law Q&A

Military Criminal Defense Q&A

As a service member or family member, it is crucial to have a clear understanding of the military criminal defense process and address any questions or concerns you might have. Below, we aim to shed light on some of the most common questions about military criminal defense, providing valuable insights into the essential steps involved in defending against criminal charges, the role of an experienced military defense attorney, and more.

Please be advised: The below questions and answers are based upon general hypothetical situations. Service regulations can vary between services and exceptions can exist in certain circumstances. Every situation can have factual nuances based upon the specific case and/or circumstances. The answers below do not serve as legal advice for any particular situation. Specific legal advice is given on a case-by-case basis based upon the unique factual circumstances at issue.  

If you have been charged with an offense under the Uniform Code of Military Justice (UCMJ), please contact us for a free consultation to discuss your unique circumstances and needs. Call (888) 490-0876.  

Do I Have to Talk to Military Investigators (NCIS, OSI, CGIS, CID)?

For a variety of reasons, it is almost always in your best interest to invoke your Article 31 rights and not speak to the investigator, even if you believe you are completely innocent. Your statements can and will be used against you and even truthful statements by you will not prevent you from being prosecuted.  

Should I Speak with My Supervisor About the Charges If Under Investigation or Have a Court Martial?  

Many clients, who are under investigation or have a court-martial or administrative proceedings, often ask if they should discuss their charges or case with their supervisor, division officer, chain of command, etc. While your chain of command may be supportive of your situation, there are no protections that would allow them to keep anything you tell them confidential. There is certain information that you do have to tell your chain of command throughout these processes, and your attorney will provide you guidance on what that is, and when/how to satisfy your requirements.  

Should I Give Consent to a Military Investigator to Search My Property?  

You have the right to deny an investigator’s request to search your property. Like making statements to an investigator, it is almost never in your best interest to voluntarily provide your property to one.  

What Should I Do If I’ve Given My Property to Investigators?  

If you have already voluntarily given your electronics or other personal property to investigators, you should immediately seek the advice of an attorney to determine the best course of action.  

Can Military Investigators Lie to You?  

Unfortunately, yes. Investigators are given wide latitude in the tactics that they can employ to get you to make statements and admissions. Those tactics can, and often do, involve false ploys and false statements by the investigators which are designed to get you to make a confession. Thus, it is in your best interest to invoke your right to remain silent and retain counsel.  

Can My Significant Other Testify Against Me?  

Clients often worry about whether their significant other (boyfriend, girlfriend, spouse) can choose to or be required to testify against them. These are generally complicated situations that require an in-depth analysis of the potential legal privileges at issue. In general, non-spouse significant others do not have any applicable legal privilege.  

Legally married individuals do have an applicable legal privilege that can provide protection in some instances, but its application is riddled with many exceptions and nuances. The existence or non-existence of such a privilege will be something that requires detailed analysis and consideration by your attorney.  

When Will I Know What Will Happen with My Case If I Am Under Investigation?  

The progress and timeline of an investigation getting to an ultimate disposition decision varies based upon the complexity of the case, the depth of the investigation, and other factors. In general, the simplest and most basic investigations will take at least two months to reach a disposition, with some of the more involved investigations taking up to a year or more.  

Am I Required to Testify in a Military Criminal Case? 

No. In the same way as in civilian criminal trials, an accused person in a military case can testify but cannot be required to testify.  

Will I Face Disciplinary Actions in the Military Because of Civilian Law Charges?  

Generally, yes, you can face disciplinary action if you are convicted or charged with a civilian crime. All services can use any allegations against you as a potential basis for adverse actions in the military. Representation during a civilian investigation can be critical to preserving your military career.  

Do I Need to Report Being Arrested by Civilian Law Enforcement to My Military Chain of Command?  

Most services have a reporting or notification requirement of some sort within their service regulations. The nature, substance, and specific requirements of what you can and/or should disclose, however, is the most critical part. You will need specific advice from your attorney relating to your reporting requirements.  

Will a Criminal Investigation Impact My Security Clearance?  

In many cases yes. A criminal investigation can significantly impact an individual's eligibility for a security clearance, as it directly relates to the adjudicative guidelines outlined in the National Security Adjudicative Guidelines (SEAD 4). The severity of the crime, level of clearance sought, and any mitigating circumstances are critical factors considered during the clearance process.  

More serious offenses may result in denial or revocation of a security clearance, particularly if they involve dishonesty, breach of trust, or national security concerns. The level of clearance in question also plays a crucial role; higher levels of clearance require a more stringent assessment of the applicant's trustworthiness and reliability.  

Mitigating circumstances, such as the passage of time since the offense, rehabilitation efforts, or lack of intent, may positively influence the outcome of the clearance decision. It is imperative that applicants demonstrate honesty and transparency when disclosing their involvement in any criminal investigation, as failure to do so may be perceived as a lack of candor, further jeopardizing their eligibility for a security clearance. The specifics of your situation will vary, and you should seek the advice of counsel on these matters.  

Does Being Under Investigation Affect Paygrade Advancement or Promotions?  

Yes. In many instances, your chain of command can prohibit you from making a PCS transfer and from being promoted, even if your name appears on the selection list for the next paygrade.  

If I Am Under Investigation by the Military, Will I Be Placed into Pretrial Confinement?

Simply being under investigation, even for a serious offense, is not enough to support placing someone into pretrial confinement. Certain additional factors and evidence must be present to support holding a person in pretrial confinement. If you have suspicion that you may be placed in pretrial confinement, it is important to seek legal counsel immediately.  

Does Being Under Military Investigation Mean I Will Be Charged or Face Court-Martial?

In all instances, if you are under investigation that means that allegations have been made against you, or that some evidence exists that seemingly implicates you. Not all military investigations result in court-martials, but it would not be wise to assume that you will not be charged, even if you know you are innocent.  

Will Disciplinary Action Affect My Academy or Educational Program Credits or Degree?  

The effect depends upon your degree status and the timing that you come under investigation. Generally, the service academies and other institutions cannot strip you of course credits that you have already completed and earned.  

If you have not yet graduated, however, you are in a different situation. Additionally, service academies have recoupment regulations in place where you may be required to pay back large sums of money if you are unable to complete your degree and/or the required mandatory service payback period.  

Does a Court-Martial Conviction Count as a Felony or Misdemeanor?  

The Uniform Code of Military Justice does not use the categories or terminology of felony and misdemeanor to define its offenses. Therefore, categorizing a particular offense under the UCMJ requires a certain analysis to determine how it may be viewed by civilian authorities in the future.  

Does a Conviction in Military Court Require Me to Register as a Sex Offender?  

Depending on the offense(s) of which you are convicted, many times yes. This determination requires a careful analysis by your attorney surrounding the offenses you are facing and the laws of the state(s) you intend to reside in the future.  

Does a Military Protective Order Affect My Ability to Purchase Firearms?  

A military protective order (MPO) is a legal directive issued by a military commander to safeguard a service member or their dependents from abuse or harassment by another service member. It is typically obtained when there are allegations of domestic violence, stalking, or sexual assault within the military community.  

The purpose of an MPO is to prevent contact between the alleged offender and the victim, creating a safe environment for the victim. While similar to civilian protective orders in their intent to protect victims, MPOs differ in that they are enforceable only within military jurisdiction and do not carry the same legal weight as civilian orders in a civilian court. Also, MPOs do not provide the same level of protection or resources, such as temporary support or custody arrangements, available through civilian protective orders.  

When you purchase a firearm from a licensed firearms dealer, you must fill out Form 4473 which has questions about your eligibility to purchase one. One of those questions asks whether you are currently the subject of a military protective order.  

Do You Have to Move Out of or Into Military Housing If You Are Under Investigation?

Military housing, also known as base or on-post housing, is provided to eligible service members and their families as a benefit of military service. Whether a service member under investigation for a crime must move out of or into military housing depends on the specific circumstances and the severity of the alleged offense.  

During the investigation process, the service member and their family may be allowed to remain in their current housing, unless the military authorities deem it necessary to relocate them for safety or legal reasons. In some cases, if the alleged crime occurred within military housing or poses a risk to the community, the service member and their family may be required to vacate the premises temporarily or permanently, depending on the outcome of the investigation.  

However, exceptions can be made on a case-by-case basis, considering factors such as the nature of the crime, the service member's history, and the impact on the military community. The decision to move a service member and their family during an investigation will be determined by the commanding officer and the relevant military legal authorities.

Does Being Under Investigation by the Military Affect Child Custody?  

In many instances, depending on the specific circumstances, it can. The impact of such an investigation on a parent's credibility and character in the eyes of the court could vary depending on several factors. These factors include the nature and severity of the alleged misconduct, the duration of the investigation, and any charges or convictions that may result from the investigation.  

In determining child custody, civilian courts prioritize the best interests of the child, which may encompass factors such as the parent's moral character, ability to provide a stable home environment, and history of responsible parenting. If a military investigation uncovers serious misconduct or leads to formal charges or convictions, this information could negatively influence the court's perception of the parent's character and fitness to maintain custody.  

However, if the investigation yields no evidence of wrongdoing or results in minor reprimands, the court may be less likely to view the parent unfavorably. Legal precedents and regulations relevant to custody disputes, such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), can help guide the court's decision-making process by establishing jurisdictional rules and promoting cooperation between state courts.  

The specific circumstances surrounding the military investigation and the individual case will play a significant role in determining the extent to which the investigation affects child custody proceedings. You should discuss any concerns with a family law attorney who has experience working with military families.  

Can You Improve Your Situation If You Are Under Military Investigation?  

Absolutely. When you retain our firm, one of the many things that we will do for you is to walk you through all the things that you can do to put yourself in the best position possible.  

Can an Attorney Help If I Am Facing Article 15, Non-Judicial punishment, or Captain’s Mast?  

Yes. Representation by counsel can be critical to achieving the best outcomes possible throughout those processes. This is especially true given the reality that most Article 15 procedures are followed by an administrative separation process.  

Will an Investigation Affect My Military Retirement?

Unfortunately, in many cases there is a very real possibility that alleged misconduct will affect your ability to retire and receive a military pension. If you are close to retirement eligibility, preserving your ability to retire is an understood goal in reaching an outcome in your case.  

Why Should I Hire a Civilian Attorney?

If you are criminally charged under the UCMJ, you will eventually be entitled to representation by a military attorney. There are several major downsides to this.  

First, in most circumstances, you are not entitled to representation by a military attorney until after you are criminally charged. This is extremely late and at that point you will have missed the opportunity for representation during a critical stage of your case.  

Once you are criminally charged, it means that a military prosecutor has thoroughly reviewed your investigation and believes that they have enough to convict you of the offenses. Naturally, at that point you cannot undo what occurred during the investigation while you were unrepresented.  

Also, when you hire civilian counsel, you are hiring experience, expertise, and passion for this work. Your assigned military attorney was ordered to serve as a defense counsel by their military service. That job may or may not be something that they enjoy doing or feel passionately about.  

More importantly, many detailed military defense counsel are relatively new attorneys, many in their first few years of practice. Many military defense counsel will be in their first assignment as a defense attorney, and many will have litigated very few, if any, criminal cases. The worst feeling that a person can have is wondering if the outcome of their case could have been different if they had hired a civilian attorney.  

How Much Does Representation by a Civilian Attorney Cost?  

Fees for any particular case vary depending upon the nature of the case, the complexity, the number of charges, and other factors. Fees quoted are based on an assessment of the amount of time involved, the issues involved, and the case's overall size. Naturally, more serious, more complex, and more involved cases may result in higher fees based upon the amount of time the attorney anticipates dedicating to the case.  

Why Might Different Attorneys Charge Different Fees?  

Like many things in life, the adage “you get what you pay for” holds true. The fee quoted to you by an attorney represents the approximate amount of time that the attorney anticipates dedicating to your case. You should be extremely skeptical of case fees which are lower than the market value. Often, these quotes may include significant additional hidden fees, or they may indicate to you that a particular attorney does not anticipate investing enough time into your case.

For client-focused, trial-tested, and experienced counsel, contact the military criminal defense attorneys at McCormack & McCormack today by calling (888) 490-0876.