Family & Client Briefing*

Thursday, April 20, 2023 www.court-martial.com 1

Family & Client Family & Client Briefing*Briefing*

The information that follows is intended to The information that follows is intended to be an overview of the military justice be an overview of the military justice “process,” and to show some of the “process,” and to show some of the decisions that command and a client have decisions that command and a client have to make.to make.* This briefing is copy-righted and contains trademarks.


Commander’s Options

No ActionAdministrative

ActionFormal Command

InvestigationLaw Enforcement

Investigation

CounselingFormal/Informal

GOMOR

Article 15, UCMJ

Separation

No further action

Counseling

Article 15, UCMJ

Separation

Court-Martial

No further action

Counseling

Article 15, UCMJ

Summary Court-Martial

Special Court-Martial

Article 32, UCMJ

Go back to top of list

General Court-Martial

Separation

BOI/OTH (Board)General

Art. 15 Refusal

No further action

Court-Martial

Separation

Civilian Authorities


Administrative ActionsAdministrative Actions

Formal / Informal Counseling.Formal / Informal Counseling. Performance Evaluations.Performance Evaluations. (Detachment) (Relief) for Cause.(Detachment) (Relief) for Cause. Punitive or Non-Punitive LOR.Punitive or Non-Punitive LOR. Denial of School/Duty Assignment.Denial of School/Duty Assignment. Loss of Security Clearance.Loss of Security Clearance. Administrative Separation.Administrative Separation. Article 15, UCMJ.Article 15, UCMJ.


Article 15, UCMJArticle 15, UCMJ

PunishmentsPunishments.. Loss of pay.Loss of pay. Reduction in rank Reduction in rank

(enlisted).(enlisted). Restriction.Restriction. Extra Duty (2 hours).Extra Duty (2 hours). Letter of Reprimand.Letter of Reprimand. Punishment may be Punishment may be

suspended (6 suspended (6 months).months).

RightsRights.. Right to refuse.Right to refuse.

Legal Consult.Legal Consult. Right to see evidence.Right to see evidence. Right to witnesses.Right to witnesses. Right to give Right to give

evidence.evidence. Right to spokesperson.Right to spokesperson. Right to appeal.Right to appeal.

THIS IS AN ADMINISTRATIVE PUNISHMENT

-- IT IS NOT A CONVICTION!


Rights to CounselRights to Counsel

Prior to official action, you have the right to have Prior to official action, you have the right to have civilian counsel at no expense to the government.civilian counsel at no expense to the government.

During an Article 32, UCMJ, investigation, a During an Article 32, UCMJ, investigation, a Special Court-Martial, or a General Court-Martial Special Court-Martial, or a General Court-Martial you have the right to:you have the right to: Detailed Military counsel (free).Detailed Military counsel (free). Civilian Counsel (at your expense).Civilian Counsel (at your expense). Individual Military Counsel (free).Individual Military Counsel (free).


General Court-MartialGeneral Court-MartialPunishmentsPunishments.. Dishonorable Discharge or Dishonorable Discharge or

BCD (enlisted); Dismissal BCD (enlisted); Dismissal (officer).(officer).

Death; LWOP; Life; term of Death; LWOP; Life; term of yrs.yrs.

Total Forfeitures.Total Forfeitures. Reduction to pay-grade E-1.Reduction to pay-grade E-1. Fine. A fine makes you Fine. A fine makes you

immediately liable to the immediately liable to the United States for the entire United States for the entire amount amount when it is ordered when it is ordered executedexecuted. R.C.M. 1003(b)(3) . R.C.M. 1003(b)(3) discussion. The has no legal discussion. The has no legal effect prior to the convening effect prior to the convening authority taking initial action authority taking initial action under R.C.M. 1107. under R.C.M. 1107. See See R.C.M. 1113(b)).R.C.M. 1113(b)).

RightsRights.. Conviction “beyond Conviction “beyond

reasonable doubt.”reasonable doubt.” Counsel.Counsel. Silence, or to testify.Silence, or to testify. Panel of members (5) Panel of members (5)

(“Jury”), or judge alone.(“Jury”), or judge alone. Cross-examination.Cross-examination. Present witnesses and Present witnesses and

evidence.evidence.


Pretrial AgreementsPretrial Agreements(Plea bargain)(Plea bargain)

Agreement to plead guilty, in exchange for a forum and/or sentence limit.Agreement to plead guilty, in exchange for a forum and/or sentence limit. Usually requires judge alone trial.Usually requires judge alone trial. Usually requires plea to most of the charges.Usually requires plea to most of the charges. Can limit any part of the sentence.Can limit any part of the sentence. Judge conducts a guilty plea (providence) inquiry of accused under oath.Judge conducts a guilty plea (providence) inquiry of accused under oath. Accused must waive right to silence, right to trial, right to confront the Accused must waive right to silence, right to trial, right to confront the

evidence.evidence. At sentencing hearing the judge knows that there is an agreement. At sentencing hearing the judge knows that there is an agreement.

HOWEVERHOWEVER, the judge , the judge does not knowdoes not know the sentence limits. the sentence limits. After judge announces the sentence, the judge looks at the sentence limits After judge announces the sentence, the judge looks at the sentence limits

and compares the two; the accused gets the lesser of either.and compares the two; the accused gets the lesser of either. Example A:Example A:

PTA limits confinement to no more than six months.PTA limits confinement to no more than six months. Judge gives nine months confinement; the sentence is six months Judge gives nine months confinement; the sentence is six months

confinement.confinement. Example B:Example B:

PTA limits confinement to no more than six months.PTA limits confinement to no more than six months. Judge gives three months confinement; the sentence is three months Judge gives three months confinement; the sentence is three months

confinement.confinement.


Testify Plea

Forum

ThreeChoices

At trial, you have three choices to make, and only you can make them. Of course your lawyers give advice.


TESTIFYTESTIFY

YOUYOU

STATEMENTSTATEMENT OFFENSEOFFENSE

OFFICEROFFICERENLISTEDENLISTED

OFFICEROFFICER

JUDGEJUDGEALONEALONE

FORUMFORUM

Who will decide my Who will decide my fate? Who decides if fate? Who decides if I’m not guilty or I’m not guilty or guilty, and who gives guilty, and who gives a sentence if a sentence if convicted?convicted?

There are a number of factors that go into forum selection – these are some of There are a number of factors that go into forum selection – these are some of the main factors. Other factors will be discussed that affect your specific case, the main factors. Other factors will be discussed that affect your specific case, at the proper time.at the proper time.

You have the You have the right to right to choose.choose.


NakedPlea

PretrialAgreement

MixedPlea

LitigateTo

Mitigate

Plea

What should I plead,

----and why?


STATEMENTSSTATEMENTS

FORUMFORUM

OFFENSESOFFENSES

BADBADCHARACTERCHARACTER

PHYSICALPHYSICALEVIDENCEEVIDENCE

WITNESSESWITNESSES

TRUTHFULNESSTRUTHFULNESS

GOOD MILITARYGOOD MILITARYCHARACTERCHARACTER

DO YOU T

ESTIFY?

DO YOU T

ESTIFY?

DO YOU TESTIFY?DO YOU TESTIFY?

DO YOU TESTIFY?DO YOU TESTIFY?


My Rules of EngagementMy Rules of EngagementGeneralGeneral You are ALWAYS on parade.You are ALWAYS on parade. Give proper military courtesy.Give proper military courtesy. Stay away from witnesses.Stay away from witnesses. Keep that uniform sharp.Keep that uniform sharp. Shave and get a haircut.Shave and get a haircut. Eye contact.Eye contact. Don’t have an attitude.Don’t have an attitude.

At Counsel TableAt Counsel Table You Are ALWAYS on Parade.You Are ALWAYS on Parade. Members/judge will be Members/judge will be

watching. They are watching watching. They are watching you – your bearing, you – your bearing, demeanor, reaction.demeanor, reaction.

Remain calm.Remain calm. Take notes.Take notes. Have eye contact with the Have eye contact with the

judge and with the members.judge and with the members.

Witness standWitness stand.. Turn chair toward members.Turn chair toward members. Say “SIR/MA’AM” to everyone!!!Say “SIR/MA’AM” to everyone!!! DON’T have an attitude.DON’T have an attitude. Give eye contact to the members.Give eye contact to the members. You will know the answers to give.You will know the answers to give. The only correct answers is THE The only correct answers is THE

TRUTH and -- TRUTH and -- Yes Sir/Ma’am.Yes Sir/Ma’am. No Sir/Ma’am.No Sir/Ma’am. I don’t know Sir/Ma’am.I don’t know Sir/Ma’am. I don’t remember Sir/Ma’am.I don’t remember Sir/Ma’am. Please repeat the question Please repeat the question

Sir/Ma’am.Sir/Ma’am. I didn’t understand the I didn’t understand the

question Sir/Ma’am.question Sir/Ma’am. DO NOT embellish are add to your DO NOT embellish are add to your

answer.answer. DO NOT/NEVER argue with the DO NOT/NEVER argue with the

prosecutor – You will never win prosecutor – You will never win that battle – You will look stupid that battle – You will look stupid — DON’T DO IT.— DON’T DO IT.


Article 32, UCMJArticle 32, UCMJPurposePurpose..

Investigating Officer makes Investigating Officer makes recommendation:recommendation: Reasonable cause to Reasonable cause to

believe crime believe crime committed; and committed; and Accused committed.Accused committed.

Investigating Officer Investigating Officer recommends disposition.recommends disposition.

IO recommendations are IO recommendations are not binding.not binding.

Defense seeks discovery of Defense seeks discovery of case against accused.case against accused.

RightsRights..

Counsel.Counsel. Right to silence.Right to silence. Right to make statement.Right to make statement. Cross-examine available Cross-examine available

witnesses.witnesses. Call available witnesses.Call available witnesses. Discovery.Discovery.

This is not a trial, and the Rules of Evidence do not apply – R.C.M. 405 has its own Rules of Evidence built in.

This is not equivalent to a civilian Grand Jury – if done right, it is substantially better for an accused.


Immediate Post-Trial IssuesImmediate Post-Trial Issues Confinement (Confinement (starts the day you are sentencedstarts the day you are sentenced))..

Deferment request (usually NOT granted).Deferment request (usually NOT granted). Go to local confinement facility, while they find bed-space.Go to local confinement facility, while they find bed-space. Usually, sex offenses - Miramar; alcohol/drugs – Usually, sex offenses - Miramar; alcohol/drugs –

Charleston.Charleston. Credit for pre-trial confinement.Credit for pre-trial confinement. Article 13, UCMJ, credit if any.Article 13, UCMJ, credit if any. Automatic good-time credit of five days per month.Automatic good-time credit of five days per month. Work abatement, or extra good-time credit.Work abatement, or extra good-time credit. MRD, FTD, clemency/parole.MRD, FTD, clemency/parole. ““Acceptance of responsibility for confining offenses.”Acceptance of responsibility for confining offenses.”

ForfeituresForfeitures.. 14 days (deferral and waiver).14 days (deferral and waiver).

BCD/DD/DismissalBCD/DD/Dismissal.. Unpaid appellate leave.Unpaid appellate leave.


Questions?

Family & Client Briefing*

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