Frequently Asked Questions - Military

THE MILITARY IS PROVIDING ME WITH AN ATTORNEY FOR FREE. WHY SHOULD I HIRE A CIVILIAN ATTORNEY?

You have the right to one military attorney, who will be provided at no cost to you. Often, your appointed military attorney is fresh out of law school and has very little, if any, litigation experience. It is important that you are comfortable and confident in the attorney that represents you. We encourage you to question your appointed attorney about their level of experience. How long have they been a JAG? How long have they been a defense counsel? How many jury trials have they done? How many cases like yours have they litigated? There are a lot of very good, very competent military attorneys out there – we know, because we used to be military attorneys ourselves. On the other hand, there are also a lot of inexperienced and overworked military attorneys. Talk to your military attorney. If you’re not comfortable and confident with the representation he/she will provide, give us a call and we will talk to you about what the attorneys of JAG Defense can bring to your defense team.

WHAT FACTORS SHOULD I LOOK FOR WHEN HIRING A CIVILIAN ATTORNEY FOR MY MILITARY CASE?

First and foremost, any lawyer who you are considering for your military case should have prior active duty JAG experience. The military justice system is entirely different from the civilian justice system, including different offenses, different rules of evidence, and different rules of trial procedure. It will be very difficult for a lawyer who has never served as an active duty Judge Advocate to be sufficiently familiar with these distinctions. At JAG Defense, our military attorneys have a combined 40 years of specialized military law experience, and have represented literally thousands of military members in all services.

Further, there are a lot of former JAGs out there that include military law as just one of their many different practice areas simply because they used to be a JAG. Many former JAGs who now practice civilian law are willing to dabble in military law as a collateral practice area to supplement their primary practice areas. Our military lawyers at JAG Defense, on the other hand, focus exclusively on military and security clearance legal issues, clients, and cases. These are not just our primary practice areas, they are our ONLY practice areas. We do not accept cases in any other practice area. Instead, we have dedicated our professional lives to the worldwide representation of military members and anyone having a security clearance issue. Such focus allows us to keep up with the changes and trends in military and security clearance law, while continuing to hone our already extensive experience.

Finally, there are a number of civilian lawyers practicing military law who highlight their extensive paralegal staff. Paralegal support can be a very important and valuable part of a defense team. With that said, when you hire an attorney, you should be sure that your case will be personally handled by that attorney, rather than by a non-lawyer member of his support staff. While employing 4 or 5 paralegals may make a single attorney’s life easier, from a client perspective, who do you think will be performing the actual work on your case? Further, consider the large caseload that would be necessary to justify and financially support such a large support staff for a single attorney.

At JAG Defense, our military attorneys take a hands-on approach to all of their cases. When you call JAG Defense, you will speak to the actual lawyer handling your case, not a paralegal. All work done on your case will be done by a licensed attorney, rather than a non-lawyer. Further, we intentionally limit the number of cases that we accept so that we can devote our full, personal attention to each client. Our clients have entrusted us with their livelihood, reputation, and freedom. We honor that trust by personally handling each case aggressively and attentively.

WHAT KIND OF CASES DO THE ATTORNEYS AT JAG DEFENSE HANDLE?

Answer: JAG Defense is a law firm specializing in military defense and security clearance law. Our military defense practice consists primarily of the representation of military members in courts-martial, discharge proceedings, non-judicial punishment (Article 15), and other adverse administrative actions. Our security clearance practice focuses on assisting military members and civilians who have been denied a security clearance, or had one revoked. For a complete listing of the types of cases that we handle, please visit our Practice Areas page.

Please be advised that JAG Defense does not handle cases related to divorce, custody, alimony, child support, or any other aspect of domestic relations law.

CAN YOU GUARANTEE THAT WE'LL WIN?

Absolutely not. Any attorney that guarantees you a victory should be viewed with skepticism. No attorney can ever guarantee victory because there are too many variables in any given case. With that said, we do guarantee that we will approach your case with the same aggressiveness, dedication, and preparation that have made us top military attorneys and earned countless victories for our clients.

I HAVE BEEN READ MY RIGHTS. WHAT SHOULD I DO?

Military members enjoy the same rights against self-incrimination as any United States citizen. As a military member, you do not have to say or do anything that might tend to incriminate you. Too often, military members think that they can simply talk their way out of a difficult situation. Unfortunately, even for those members who have done nothing wrong, making a statement or cooperating with those people that are questioning you can make that difficult situation even worse. In such situations, remember the following:

• You do not have to make a statement to anyone, even someone in a position of command over you.
• You do not have to consent to a search of your home, computer, vehicle, bodily fluids, or anything else.You do not have to submit to a polygraph examination.
• You have the absolute right to consult with an attorney before deciding whether to do any of the things listed above

If you ever find yourself accused or suspected of a crime, the safest and smartest way to proceed is to consult with an attorney qualified in military law, even if you do not think you have done anything wrong.

WHAT IS THE DIFFERENCE BETWEEN AN ADMINISTRATIVE DISCHARGE AND A PUNITIVE DISCHARGE/DISMISSAL?

Commanders can initiate administrative separation actions against military members for a variety of reasons, ranging from criminal misconduct (military or civilian) to failed fitness tests to homosexuality. If a member is administratively separated from the military, that member’s service will be characterized as Honorable, General (Under Honorable Conditions), or Under Other Than Honorable Conditions. The characterization that a member receives will largely be based upon the reason for administrative discharge balanced against the quality of the member’s service during that enlistment period. Honorable characterizations are appropriate when the quality of the member’s service generally has met standards of acceptable conduct and performance of duty, or a member's service is otherwise so meritorious that any other characterization would be inappropriate. General characterizations are typically appropriate if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of his/her military record. Under Other Than Honorable Conditions characterizations (typically referred to as “UOTHC” or “OTH”) are deemed appropriate if based upon a pattern of behavior or acts that demonstrate a significant departure from the conduct expected of military members.

Punitive discharges can only be adjudged at a court-martial. For enlisted members, there are two types of punitive discharges – Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD). While BCDs can be adjudged at either a Special Court-Martial or a General Court-Martial, DDs can only be adjudged at a General Court-Martial. Officers cannot receive BCDs or DDs. Instead, the equivalent form of discharge is called a “Dismissal,” and can only be adjudged at a General Court-Martial. For that reason, officer cases are rarely referred to Special Courts-Martial.

The basis for discharge and the characterization of a member’s service will greatly impact the benefits to which the member is entitled, such as veteran’s benefits and the Montgomery G.I. Bill.

WHAT IS AN ADMINISTRATIVE DISCHARGE BOARD?

An administrative discharge board is made up of three (3) members convened to consider evidence for and against the administrative separation of a military member. In many ways, a discharge board is a “mini court-martial,” albeit without the formal rules of evidence one would find at an actual court-martial. After reviewing the documentary evidence and hearing witness testimony, the members vote in secret deliberations on three (3) main issues. First, the members vote on findings of fact as to whether each allegation is supported by a preponderance (more likely than not) of the evidence and make a separate finding with regard to each allegation. Second, if the findings of the members support a basis for discharge, the members next vote on a recommendation to discharge or retain the member. Third, if the members vote to recommend discharge for the member, they must next vote on a recommendation concerning the characterization of service (Honorable, General, or UOTHC/OTH) for the member. In limited cases, the members will also vote concerning a recommendation concerning Probation and Rehabilitation.

I HAVE BEEN INFORMED THAT MY COMMAND IS CONSIDERING ME FOR AN ADMINISTRATIVE SEPARATION. AM I ELIGIBLE FOR AN ADMINISTRATIVE DISCHARGE BOARD?

Each branch of service has slightly different requirements that trigger one’s eligibility for an administrative discharge board. These requirements range from a minimum amount of time in service, to one’s rank at the time of discharge processing notification, or to the basis for discharge itself. In all services, however, you are automatically entitled to present your case to a discharge board if your command is seeking an Under Other Than Honorable Conditions characterization of service. If you are unsure about whether you are entitled to an administrative discharge board, please call JAG Defense for a free consultation regarding your case.

WHAT IS AN ARTICLE 32 HEARING?

An Article 32 hearing is often referred to as the military’s equivalent of a grand jury. Before a charge can be referred to a General Court-Martial, the government must present all available evidence to an impartial Investigating Officer. This Investigating Officer examines the available evidence and makes a recommendation to the convening authority regarding an appropriate disposition of the case. Unlike civilian grand jury hearings, however, the military permits the accused to be present and take part in the Article 32 hearing. Thus, an accused may be present with an attorney to review the government’s evidence, may present evidence in his/her defense, and may testify if desired. As a result, an Article 32 hearing is an excellent source of information for an accused to learn about the strengths and weaknesses of the government’s case.

WHAT IS "PRETRIAL CONFINEMENT"?

Pretrial confinement is physical restraint that deprives a member of their freedom pending the disposition of criminal charges against them. Only a member who is subject to trial by court-martial may be confined. A member may be ordered into pretrial confinement only when there is reasonable belief that (1) an offense triable by court-martial has been committed; (2) the member to be confined committed it; and (3) confinement is required by the circumstances. Confinement is “required by the circumstances” if it is foreseeable that the member will not appear at trial or will engage in further serious criminal conduct. During the period of pretrial confinement, military members continue to receive pay and benefits. Further, in the event a member is convicted and sentenced to confinement at their subsequent court-martial, all time spent in pretrial confinement is credited against any period of confinement received as part of their court-martial sentence.

DO YOU REPRESENT MILITARY MEMBERS AT MY BASE?

JAG Defense has no limitations on where we are willing to travel to represent military members. Our attorneys have represented military members at military installations all over the world. While some civilian attorneys will not travel into active war zones, we feel it is important to defend those who are defending America, regardless of where they might be geographically located. If you can get to a phone to call us about your case, we will get to you to provide aggressive, dedicated representation. For a list of locations where JAG Defense attorneys have already assisted military members with legal problems, please visit the Worldwide Representation page of our website.

WHAT RIGHTS DO I HAVE AT A COURT MARTIAL?

Contrary to popular belief, you have many rights at a court-martial. While the military’s justice system (like any justice system) does have its problems, overall it is a very fair process. The following is a non-exhaustive list of some of the rights military members enjoy at a court-martial:

• If tried before a Special Court-Martial, you may be tried by a court consisting of at least three (3) members. If tried before a General Court-Martial, you may be tried by a court consisting of at least five (5) members.
• If you are enlisted, you have the right to be tried by a court of at least one-third enlisted members.
• You have the right to be tried by military judge alone.
• You have the right to challenge for cause the military judge and any court member. You also have the right to challenge one court member peremptorily, that is, for no specified reason.
• You have the right to assert any defense or objection.
• You have the moral and legal right to plead not guilty to the charges made against you. The government must prove its case against you beyond a reasonable doubt if you plead not guilty.
• You have the right, in findings, to testify as a witness or remain silent.
• You have the right to introduce evidence through counsel.
• You have the right to confront the witnesses against you and cross-examine them.
• If you are found guilty of any offense, you have the right to introduce evidence in extenuation and mitigation and to testify under oath or make an un-sworn statement personally and/or through counsel, or remain silent.