Am I Being Charged? How To Know When You Are Facing Charges In The Military Justice System
We get a lot of questions at KMD from people who believe they’re being charged with a UCMJ offense in the military justice system. Here’s a guide to figuring out whether you’re being charged with a crime under the UCMJ. If you have any questions, you can always call us at 855-707-UCMJ to get all your questions answered.
What happens when military police talk to you?
When you get called into PMO, CID, NCIS, AFOSI, or any other military law enforcement and get read your rights, a lot of people think that means you have been “charged” with a crime. This is not true.
In the military system, a law enforcement agency is limited to investigating you. That means they can’t recommend any sort of charges, in any situation. They don’t “charge” you with a crime. They simply read your rights to you, do an investigation, compile a report, and provide it to your command.
What are Article 31(b) rights?
Article 31(b), UCMJ, applies to all servicemembers who are suspected of having committed a violation of the UCMJ. It requires investigators to inform you generally what you are accused of, that you have a right to remain silent, and that anything you say can be used against you.
Having your rights read to you does not mean you have been charged with a crime. However, it does mean you are suspected of a crime. If your rights are read to you, you should invoke your right to remain silent and call us immediately.
Have I been arrested?
In the military, taking a person into custody is called “apprehension.” This is the equivalent of “arrest” under civilian law. It is usually done by military law enforcement officials when they believe there is probable cause to apprehend, defined as “reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed or is committing it.”
When someone’s commanding officer places them into pretrial confinement, they are entitled to a pretrial confinement review hearing. The reviewing officer decides whether there are legal grounds to keep the person in pretrial confinement pending preferral of court-martial charges. If there are not, the person is released. We frequently represent servicemembers in pretrial confinement review hearings.
A commanding officer can also order lesser forms of pretrial restraint. They can impose conditions on liberty, restriction to specified limits, or arrest. “Arrest” is when the person is restricted to relatively narrow limits and they no longer perform full military duties.
When am I actually charged with a crime under the UCMJ?
You are charged with a crime in a court-martial when charges are “preferred.” You will receive a charge sheet, which is a DD Form 458. The top will have your name, jurisdictional information, and any pretrial restraint that may have been imposed. Underneath that will be the Charges and specifications, which will list the Articles of the UCMJ that are alleged to have been violated.
The bottom of the first page will have the preferral information, which is information about the “accuser” and the person who placed them under oath prior to preferral.
In the Army, Air Force, and Space Force, it is customary for the commander of the person accused to serve as the “accuser,” and notification happens in a formal process with the commander’s involvement. In the Navy and Marine Corps, it is customary for a legalman or clerk in the prosecutor’s office to sign as the “accuser,” then the Sailor or Marine is called into the legal office to sign the notification.
Once the servicemember has been notified of preferral, they have been “charged” with a crime. This is the first step in a court-martial.
What about nonjudicial punishment charges?
Sometimes people refer to the notification of nonjudicial punishment or Article 15 proceedings as “charges.” The notification does list the Charges and specifications of the UCMJ that are alleged to have been violated, but the nonjudicial punishment process is vastly different than the court-martial process. Nonjudicial punishment cannot result in a conviction, so in the civilian world, they wouldn’t be considered “charges.”
Will charges appear on my background check?
During the investigation process, military law enforcement agencies are required by DoDI 5505.11 to obtain fingerprints from anyone they investigate and send those fingerprints to NCIC. The list of offenses required to be reported is extensive and contains nearly all possible Articles of the Uniform Code of Military Justice that a servicemember could be charged with. The requirement to take fingerprints applies to every person who is investigated, for any offense whatsoever, regardless whether they are actually arrested or charged.
A command investigation will not appear on your background check unless it results in the preferral of charges.
AFOSI, CID, or NCIS may take your fingerprints and DNA when you are first called in for an interrogation, or they may call you back afterward to take them. Getting your fingerprints and DNA taken is not something you can object to or refuse to do. Your fingerprints are sent to the FBI. Your DNA is sent to the U.S. Army Criminal Investigation Laboratory (USACIL) for inclusion in the Combined DNA Index System (CODIS).
If you pull your background check through the FBI, you may find that it is not accurate. You may also get questions from a potential employer who does not understand that you were never actually arrested even though the background check uses the words “arrest date” as the date they were notified of the investigation by law enforcement. We can help with both of these situations.
Law enforcement took my DNA. I was not convicted. What can I do?
There is a process for expungement outlined in DoDI 5505.14. The servicemember must go through their chain of command. To qualify for expungement, charges must have been dismissed, withdrawn, or disposed of in a manner not resulting in preferral of charges, or otherwise not resulting in a conviction.
If you have questions about whether you have been charged with an offense in the military justice system, call KMD.