If you are concerned that you may need to talk to a lawyer, then you probably do. Please come into our office during normal defense walk-in hours or contact the DSO to schedule an appointment to meet with an attorney for further guidance.

In legitimate emergency situations where a legal question must be answered immediately and there is no way to come to the DSO during the normal walk-in hours, please contact our defense office. We will make every effort to provide legal services in accordance with your needs.

As a military service member, you have specific rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) and under the military’s version of “Miranda Rights,” known as “Miranda / Tempia Rights.”

PLEASE NOTE: If you are suspected of committing misconduct, then any attempt to interview you should begin with the investigator / questioner telling you that you are suspected of a specific violation of the Uniform Code of Military Justice or civilian criminal laws. They must tell you what the nature of the violation is so that you may direct your answers specifically to those allegations.

When interrogated, you should be told the following:

• You have the right to remain silent;
• Any statement you make may be used against you in a trial by court-martial (or any court of law);
• You have the right to consult with a lawyer before any questioning. This lawyer may be a civilian lawyer retained by you at your own expense, a military lawyer appointed to act as your lawyer (for the purposes of assisting you with the questioning) without cost to you, or both;
• You have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview; and
• If you decide to answer questions without a lawyer present, you have the right to stop the interview at any time. You also have the right to stop answering questions at any time in order to obtain a lawyer.

This question cannot be answered without first speaking to an attorney. You have certain legal rights (listed above) and one of them is to remain silent. You also have the right to speak to an attorney prior to making any statements. DSO attorneys strongly encourage service members to seek legal advice prior to making any official or unofficial, written or oral statements to command representatives, law enforcement officials (military or civilian), investigators and any other person asking questions. Investigators and command members must advise you of your rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) prior to asking you any questions regarding criminal matters in which you are a suspect. Especially in situations where your rights are read or shown to you and you are told in advance of questioning that you are considered a suspect, DSO attorneys strongly encourage you to exercise those rights and speak to an attorney prior to making any statement.

As listed above, you have the right to retain a civilian attorney at your own expense. The decision whether to retain a civilian attorney is completely up to you. You also have the right to speak to a military attorney at no expense to you prior to any questioning. You have the right to have either or both of those attorneys present during any questioning. Although a military attorney can provide advice and counsel during an investigatory phase of questioning, a military attorney will not be “detailed” to your case specifically unless and until you have charges preferred against you and your command decides to refer the matter to a special court-martial, an Article 32 hearing or an administrative separation board. At court-martial, you also have the right to an “Individual Military Counsel,” that is, a military counsel of your own selection, provided that person is reasonably available. If your request for Individual Military Counsel is approved, you may also request that your originally detailed counsel remain on the case as well, and it will be up to the detailed counsel’s commanding officer (CO) to approve or deny the request. This means it is possible, and in fact is quite common, to have at least two military attorneys assigned to your case, at no expense to you.

Nonjudicial Punishment (NJP), also referred to as “Captain’s Mast” (Navy & Coast Guard), “Office Hours” (USMC) and “Article 15” (Army and Air Force), is a relatively informal and low-level forum for handling minor misconduct. Article 15 of the Uniform Code of Military Justice (UCMJ), located in the Manual for Courts-Martial (MCM), explains what constitutes “minor” misconduct and the basics of this process. It can be imposed by a commanding officer (CO) and specifically designated officers in charge. We encourage area service members to come into our offices for legal advice if they are facing possible legal action by their command. Please refer to the list of rights presented below.

Nonjudicial Punishment Rights (“Booker Rights”)

• You have the right to refuse mast (unless attached to or embarked on a vessel). See Article 15, UCMJ.
• You have the right to confer with an independent attorney.
• You have the right to appear personally before the CO or OIC.
• You have the right to be informed of your Article 31b, UCMJ rights. (See above.)
• You have the right to be accompanied by a spokesperson. This is a person you want to speak on your behalf — a spokesperson is different than having a witness present.
• You have the right to be informed of the evidence against you relating to the offense.
• You have the right to examine all evidence upon which the CO will rely in deciding about whether and how much NJP to impose.
• You have the right to present matters in defense, extenuation and/or mitigation, orally, in writing or both.
• You have the right to have witnesses present. The accused is generally the one who must arrange for the witnesses to attend
• You have the right to appeal a CO’s decision at mast. See Article 15(e), UCMJ for details. In general you can appeal on the grounds the punishment was unjust or disproportionate. The appeal should be “prompt” (within five days) and directed to the next superior authority via the “proper channels” (chain of command). See Part V of the MCM for “set aside” procedures where “a clear injustice” has occurred.

An arraignment is a formal court hearing where the charges are read to the accused by the trial counsel, unless the reading is waived by the accused. The accused is then asked to enter pleas to the charges and plead guilty or not guilty to the charges referred against him/her, or preserve the option and reserve pleas for a later date.

A summary court-martial is a disciplinary proceeding meant to adjudicate minor offenses with a simple procedure.

• A summary court-martial is not considered a "criminal prosecution" within the meaning of the 6th Amendment.
• An accused does not have a right to be represented by military defense counsel at the proceeding, but the accused will be given the opportunity to consult with an attorney beforehand.
• The accused will generally be permitted to retain a civilian defense attorney unless military exigencies prevent it.
• The summary court-martial will be composed of a single commissioned officer. The government will not be represented by a prosecutor.
• A summary court-martial is not permitted if the accused objects to that forum . Maximum punishments for E-4 and below: reduction to E-1, forfeiture of 2/3 pay for one month, and either 60 days of restriction, 45 days of hard labor without confinement, or 30 days confinement.
• Maximum punishments for E-5 and above: reduction of one grade, forfeiture of 2/3 pay for one month, and 60 days of restriction.
• Officers cannot be tried at a summary court-martial.

A special court-martial is a federal criminal trial convened by the military. Depending on the offense, the accused may be tried by a military judge alone, or may be entitled to a panel consisting of four members.

The maximum punishment that can be adjudged is confinement for 12 months, forfeiture of two-thirds pay per month for 12 months, reduction in rank, and a bad conduct discharge.

The accused has the right to be represented by an appointed military defense counsel. The accused also has the right to retain a civilian counsel at no cost to the government.

A general court-martial is a federal criminal trial convened by the military with the power to try all offenses punishable under the UCMJ. It is composed of eight panel members or, if requested by the accused, by a military judge alone.

There is no jurisdictional maximum punishment at a general court-martial, so it can impose up to the maximum punishment permitted for an offense.

The accused has the right to be represented by an appointed military defense counsel. The accused also has the right to retain a civilian counsel at no cost to the government.

The convening authority's responsibilities are set forth in the Uniform Code of Military Justice and include referring charges to courts-martial, designating members to serve as a jury, funding the proceedings, and reviewing the outcome. The convening authority is a commissioned officer in command who has the authority to order a Court-Martial into existence and to refer charges against a service member for trial by that Court-Martial.

Administrative Separation Boards (Admin Boards) and Boards of Inquiry (BOIs) are administrative hearings at which a service member may be processed for an administrative discharge.  They are similar in some ways to courts-martial, they are solely administrative and not punitive in nature. Like a court-martial, it is an adversarial proceeding, meaning the government can present its case, and the service member (“respondent”) can present his case. At an Admin Board or BOI, the respondent has several important rights, including the right to be represented by a detailed military attorney, the right to a civilian attorney at no expense to the government, the right to call witnesses, the right to present evidence, the right to challenge the evidence against him, and the right to remain silent. The Military Rules of Evidence generally do not apply to boards and a board’s decisions about whether misconduct occurred are based upon a preponderance of the evidence standard. Admin Boards are for enlisted personnel and are governed by Chapter 19 of the Naval Military Personnel Manual (MILPERSMAN) for the Navy, Chapter 12 of the Coast Guard Personnel Manual or the Marine Corps Enlisted Separations Manual (MARCORSEPMAN) for the Marine Corps. BOIs are governed by SECNAVINST 1920.6D.

If a service member was found guilty at a prior mast proceeding, then the board is NOT bound by that finding. If a service person was convicted at a court-martial or by a civilian court, and is being processed for separation on the basis of the same underlying misconduct, the board IS bound by the misconduct determination. However, the board is still free to decide whether separation is warranted and, if so, what characterization of discharge should be awarded. Though the proceeding is considered non-punitive, there is no question that the consequences of administrative separation with certain characterizations of service can have significant negative consequences regarding loss of virtually all veteran’s benefits, retirement pay (if retirement eligible), civilian employment and inability to reenlist or hold some government jobs or security clearances. Types of discharge possible at an Admin Board or BOI range from Honorable to General (Under Honorable Conditions), to Other Than Honorable (OTH).

Yes, in certain circumstances. For example, if you have less than six years in the Navy (five years for Coast Guard), you can be involuntarily administratively separated without a board so long as the characterization of discharge is General (Under Honorable Conditions) or Honorable. If you have more than six years in the Navy, you cannot be involuntarily separated without a board, regardless of the discharge type. In either circumstance, you cannot be separated with an Other Than Honorable discharge without an Administrative Separation Board (unless you waive your right to a board).

Most defense attorneys will tell you this is not a good idea. If you waive the board, the likely outcome will be an Other Than Honorable discharge, which is the worst you can receive if you go before the board and lose. However, there are certain limited circumstances where waiving a board might be in your best interest. Defense attorneys strongly advise service members to consult with an attorney prior to waiving any of your rights as they relate to administrative separation, especially the right to a board.

Article 31 of the Uniform Code of Military Justice states: No person subject to this chapter [that means everyone in uniform plus NCIS special agents and civilian police officers in military police departments] may interrogate or request any statement from an accused or person suspected of an offense without first:

• Informing that person of the nature of the accusation;
• Advising the person that they do not have to make any statement regarding the offense of which they are accused or suspected; and,
• Informing the person that any statement made may be used as evidence against him in a trial by court-martial.

The Office of the Judge Advocate General Criminal Law Division (Code 20) processes Freedom of Information Act (FOIA) requests concerning the military justice system and individual courts-martial and responds to requests for records of trial. Once the record of trial is complete, a request can be made to the Office of the Judge Advocate General Code 20 at:

There must be probable cause to believe an individual has committed an offense under the UCMJ, it is foreseeable the individual would flee or commit serious criminal misconduct, and that lesser forms of restraint (restriction, e.g.) are inadequate.

Restriction is a lesser form of restraint than confinement, and may be awarded at Non-Judicial Punishment or court-martial. An accused may also be placed on restriction while awaiting trial by court-martial. Restriction is imposed upon a person by oral or written orders and limits him to specified areas of a military command. Restriction is normally defined for the person by a Restriction Order that states the length, limits and terms of the restriction.

Confinement is the most severe form of restraint, and may be imposed only as pre-trial confinement or as part of a sentence awarded by a court-martial. Confinement is normally served in a military confinement facility.

If an accused is convicted at a court-martial, the record of trial is reviewed in different ways, depending on the severity of the sentence imposed. At a minimum, the record is reviewed by a Staff Judge Advocate (SJA) before the verdict and the sentence may be approved by the CA. The CA retains the option in each case of disapproving or reducing the severity of the findings or sentence.

In cases in which a punitive discharge or a sentence to confinement of two years or more is approved, the case is automatically appealed to the Navy-Marine Corps Court of Criminal Appeals (NMCCA) (for all Navy and USMC accused). If court-martial results in a lesser punishment, the accused will have to make a timely request for the NMCCA to review their case. In either circumstance, the accused is represented by appellate military counsel free of charge. While all appellate courts have the power to review matters of law, the NMCCA has fact-finding power and, if the court is not convinced beyond a reasonable doubt of the guilt of the accused, it has the power to overturn the finding of guilty and any sentence imposed.

If the accused desires, he may appeal decisions of the NMCCA to the Court of Appeals for the Armed Forces (CAAF). This court is composed of five civilian judges appointed by the President and confirmed by the Senate for 15-year terms. An accused can challenge decisions of the Court of Appeals for the Armed Forces by asking the U.S. Supreme Court for a grant of certiorari.

Alternatively, if an accused's case is not reviewed by the NMCCA, it will be reviewed by the Office of the Judge Advocate General. The JAG has the discretion to modify or set aside the findings and sentence. The JAG also has the authority to order rehearings.

Refer to SECNAVINST 5815.3J and/or the Naval Clemency and Parole Board for more information.

Clemency is an action that results in the mitigation, remission or suspension of the whole or any part of an individual's court-martial sentence. To receive clemency from the CA, the accused may submit a request for clemency within 10-days of the sentence being announced (or within an additional 20-days if requested and approved). The accused's detailed defense counsel is responsible for assisting the accused in the submission of matters in clemency.

Pursuant to the UCMJ, Service Secretaries may also grant clemency on unexecuted portions of a court-martial sentence. Typically, the service's Clemency and Parole Boards exercise these clemency powers. The Navy Clemency and Parole Board acts for the Secretary of the Navy on Navy and Marine Corps cases. Each board consists of five senior officers and provides recommendations and advice to the respective Service Secretary. Automatic clemency review is available to an accused depending on the length of confinement awarded and the branch of service. Clemency review can be waived.

Refer to SECNAVINST 5815_3J and/or the Naval Clemency and Parole Board for more information.

Parole is the conditional release of an accused from confinement. The service member's service regulations should be reviewed to determine eligibility criteria. The eligible applicant must submit a parole plan to the appropriate service's Clemency and Parole Board.

In general, the Navy Clemency and Parole Board looks at the following factors: the nature and circumstances of the crime; the military and civilian background of the offender; a substantial post-conviction educational or rehabilitative effort; post-trial progress reports; recommendations of the military judge and legal officer; psychiatric evaluations; any statement by the victim; and, any restitution made to the victim.

Accused
A person who is charged with an offense under the UCMJ (civilian equivalent: defendant).

Accuser
Any person who signs and swears to charges; any person who directs that charges be signed and sworn to by another.

Admission

A self-incriminatory statement falling short of a complete acknowledgment of guilt.

Appellate Review

After review of the record of trial by a judge advocate and action by the Convening Authority (to approve or reduce the findings and sentence of a court-martial), military accused are afforded automatic appellate review of their case by the Navy-Marine Corps Court of Criminal Appeals (NMCCA) if the sentence approved by the Convening Authority includes a punitive discharge or confinement for a year or more. Decisions of the NMCCA can be challenged before the Court of Appeals for the Armed Forces (CAAF), if that court grants review. Likewise, decisions of the CAAF may be reviewed by the US Supreme Court upon grant of a writ of certiorari.

Apprehension

The taking of a person into custody.

Arraignment

The formal, in-court reading of charge(s) and specification(s) to the accused (unless the accused waives the reading), coupled with the request that the accused enter pleas (guilty or not guilty). The accused may reserve pleas.

Arrest

Moral restraint imposed on a person by oral or written orders of competent authority limiting the person's personal liberty pending disposition of charges.

Arrest In Quarters

Moral restraint limiting an officer's liberty, imposed as a nonjudicial punishment by a flag or general officer in command.

Article 15

The UCMJ article providing a procedure for investigating and punishing minor misconduct by military members. The commander hears evidence from both sides and decides whether and how much punishment to impose. That decision can be appealed to the next level of command. The member is allowed access to military counsel to assist in responding to the charge.

Article 39a Session

A session of a court-martial without the members (jurors) of the court present. Article 39a sessions are called by the military judge: (1) in cases in which the accused has elected to be tried by military judge alone; (2) before the members are seated; or (3) during trial with members to dispose of matters appropriately addressed outside the hearing of the members.

Bad Conduct Discharge

One of two types of punitive discharges that may be imposed on an enlisted person. Less severe than a Dishonorable Discharge. May be imposed on an enlisted member in a Special or General Court-Martial.

Military Judge Alone Trial

A trial in which the military judge alone hears the evidence, determines guilt and imposes a sentence. An accused may elect trial by military judge alone rather than by a court composed of members.

Capital Offense

An offense for which the maximum punishment includes the death penalty. In the military, these offenses include: desertion in time of war; assaulting, willfully disobeying superior commissioned officer in time of war; mutiny and sedition; misbehavior before the enemy; subordinate compelling surrender; improper use of a countersign; forcing safeguard; aiding the enemy; spying; espionage (for certain listed subsections); willfully or wrongfully hazarding a vessel; misbehavior as a sentinel (in wartime); murder (premeditated or while committing other serious offense); and rape.

Challenge

Formal objection to a member of the court or the military judge being allowed to continue to sit on a court-martial. There are two types, for cause and peremptory. Challenges for cause are based on a fact or circumstance (such as conflict of interest) which has the effect of disqualifying the person challenged. A peremptory challenge is where each side is allowed to challenge one member (but not the military judge) and is not required to give any reason at all.

Charge

A formal statement identifying the Article of the UCMJ which an accused is alleged to have violated.

Specification

A description in writing of the offense which an accused is alleged to have committed. Each specification, together with the charge under which it is alleged, constitutes a separate accusation.

Clemency

Discretionary action by person authorized to reduce the severity of sentence. The CA, for example, may grant clemency by reducing the amount of confinement imposed by a court-martial.

Command

The authority that a commander in military service lawfully exercises over his subordinates by virtue of being placed in command by a superior officer. This status is distinct from rank or position. It is the legal basis for imposition of nonjudicial punishment.

Convening Authority

An officer who has authority to convene a court-martial. A Convening Authority (CA) is the commanding officer empowered by the UCMJ to review evidence and refer charges to a court he or she (or a predecessor in command) has convened if the CA believes trial by court-martial is warranted. Upon receipt of preferred charges, the CA may refer the charges for trial by Summary, Special or General Court-Martial (if a GCMCA) or make other appropriate recommendations. The CA also assigns court members (jurors) based on their age, education, training, experience, length of service and judicial temperament. If an enlisted service member requests enlisted members on the panel, at least one-third of the members will be enlisted personnel.

Convening Order

The document by which a court-martial is created. It specifies the type of court, the names of the members, the authority by which the court-martial is created, and may designate where the court will meet.

Court-Martial

A military proceeding composed of one or more members of the armed forces (the number depending on the type of court), the functions of which are to decide whether a person subject to military law has committed a violation of the Uniform Code of Military Justice and, if it finds him guilty, to adjudge punishment for the offense.

Court of Appeals for the Armed Forces (CAAF)

A civilian appellate court composed of five judges appointed by the President and confirmed by the Senate, each holding a 15-year term. This court hears appeals from cases decided by the Service courts of criminal appeal. CAAF's decisions can be appealed to the Supreme Court of the United States.

Court of Criminal Appeals

A military appellate court (established by the Judge Advocate General) composed of not less than three officers (civilians may also be appointed) which reviews records of certain courts-martial. Each service has its own court. For the sea services, this is the Navy-Marine Corps Court of Criminal Appeals.

Dereliction of Duty

Willfully or negligently failing to perform assigned duties or performing them in a culpably inefficient manner.

Dishonorable Discharge

The most severe punitive discharge that may be awarded to an enlisted member. It is reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses requiring severe punishment.

Dismissal

The punitive discharge imposed on officers and warrant officers. Like the dishonorable discharge, it is reserved for individuals who should be separated under conditions of dishonor.

Disrespect

Acts or language that detracts from the respect due the authority and person of a superior commissioned officer.

Defense Counsel

An attorney who represents a military member in a court-martial.

Elements

The essential ingredients of an offense which are to be proven at the trial; the acts or omissions which form the basis of any particular offense.

Judge Advocate

A commissioned officer and military attorney who is admitted to the bar of the highest court of any State or federal court and has been designated as a judge advocate by the Judge Advocate General.

Legal Officer

Any commissioned officer of the U.S. Navy, Marine Corps or Coast Guard designated to perform legal duties of a command. Not an officer certified by the Judge Advocate General as a Judge Advocate. Not a military attorney.

Manual for Courts-Martial

Often referred to as the "MCM," this compilation includes the Rules for Courts-Martial, the Military Rules of Evidence, the punitive articles as well as the Uniform Code of Military Justice.

Matter in Aggravation

Evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which an accused has been found guilty.

Matter in Extenuation

Any circumstance serving to explain the commission of the offense; including the reasons for committing the offense that do not constitute a legal justification or excuse.

Matter in Mitigation

Any circumstance which is introduced for the purpose of lessening punishment awarded by a court-martial or at NJP.

Military Judge

The commissioned officer certified by the JAG who acts as the judge in courts-martial.

Minor Offense

Whether an offense is minor depends on its nature and circumstances, the offenders rank, age, record, duty, assignment and experience, and the maximum punishment imposable for the offense.

Negligence

The failure to exercise due care, i.e. that care that a reasonable person would demonstrate under the same or similar circumstances.

Nonjudicial Punishment

Punishment imposed under Article 15, UCMJ, for minor offenses. Often referred to as "NJP" or "Article 15." Authorized punishments for enlisted personnel include restriction, reduction in rank, forfeiture of pay and extra duties.

Preferral of Charges

The formal procedure for making an accusation against an accused. The accuser signs and swears to the charges and specifications.

Pretrial Agreement

An agreement between the accused and the CA, usually to limit the amount of punishment that can be imposed in a court-martial in return for a plea of guilty to some or all of the charges. Other conditions are sometimes agreed to by the accused and the CA. The agreement is often called a "PTA."

Pretrial Investigation

A formal investigation under Article 32, UCMJ, that is required before convening a General Court-Martial, unless it is waived by an accused. At an Article 32 hearing or investigation, the accused is present and represented by counsel and can offer evidence.

Punitive Articles

Articles 77 through 134 of the UCMJ (codified at 10 U.S.C. §877-934). These articles describe various crimes and state the maximum punishment for each.

Referral of Charges

The action of the CA in directing that a particular case be tried by a particular type of court-martial.

Restriction in Lieu of Arrest

Moral restraint, less severe than arrest, imposed upon a person by oral or written orders, limiting him to specified areas of a military command, with the further provision that he will participate in all military duties and activities of his organization while on restriction.

Senior Member

The senior-ranking member of a court-martial panel. This officer announces the findings and sentence of the members in a fashion similar to that of the foreman on a civilian jury. The President has no judicial authority in the court-martial and no member of a court-martial panel, including the President of the court, may use rank or position to influence deliberations.

Set Aside

Action by proper authority voiding all or part of the proceedings of a court-martial.

Suspension

Action by proper authority to withhold the execution of a punishment for a probationary period.

Trial Counsel

The judge advocate (military attorney) who serves as the prosecutor in a court-martial.

Uniform Code of Military Justice

Often referred to as the "UCMJ," this comprehensive statute (10 U.S.C.A.§801-946) forms the basis for military criminal law. It contains the requirements for jurisdiction, trial procedure, sentencing and NJP. It also contains punitive articles, which set forth acts that are crimes under military law. This statute is implemented by Executive Order, in the form of the Manual for Courts-Martial.