Breaking Down the Myths about Military Justice
Military justice is often surrounded by myths and misconceptions. Understanding the facts is crucial to correct misconceptions and grasp how the military justice system operates.
Military justice is the same as civilian justice.
Fact: One of the biggest misconceptions about military justice is that it operates in the same way as civilian justice. While both systems are designed to uphold the law and ensure justice, there are significant differences between the two.
The military has its own set of laws known as the Uniform Code of Military Justice (UCMJ), which is specific to the military and applies to all branches. The UCMJ outlines the rules that govern military personnel and provides a unique framework for handling legal matters within the military community. There are also a vast number of regulations and instructions that impact all aspects of the military justice system.
I can’t fight my case because my command told me there’s a lot of evidence against me.
Fact: Without actually seeing the evidence and consulting with an attorney, you can’t be certain about the best way to approach your case. There are a lot of laws, rules, and evidentiary standards that govern all the different types of actions you may be facing, from court-martial, to administrative separation, to an Article 15/NJP, to other adverse actions.
The people that may be telling you these things do not have the level of experience in the military justice system that a trained attorney does. At KMD, we have gotten cases where our clients were told the odds were insurmountable, only to have the privilege of standing next to them while a military jury reads the words “not guilty.” Don’t believe everything your command tells you.
If I’m a good enough Soldier, Sailor, Airman, Marine, Guardian, or Coastguardsman, my command will sweep it under the rug.
Fact: No matter how upstanding an individual servicemember is, it is not likely that allegations of misconduct will be swept under the rug. This is particularly true in circumstances where the chain of command no longer has decision-making authority as of 27 December 2023. In other circumstances, such as substantiated drug use, the command must take certain actions regardless of how good a record the servicemember has.
However, the quality of a person’s record can have a big effect in fighting the allegations in whatever forum they’re being litigated. It can also have a big impact on leniency in the event the person is found to have committed misconduct. Importantly, while you are under investigation and facing allegations, you must continue to perform at the highest levels. Lowering your standards or committing more offenses will only hurt your case.
Military justice only punishes minor offenses.
Fact: Some believe that military justice only deals with minor offenses, such as insubordination or unauthorized absence, and is not capable of handling serious crimes. This is a misconception. The military justice system has the capacity to handle a wide range of offenses, from minor infractions to serious crimes, including murder, sexual assault, and espionage. In fact, military courts-martial can impose severe penalties, including lengthy imprisonment and a dishonorable discharge, for serious offenses.
Military court is not “real court.”
Fact: The military justice system is a federal court system. The UCMJ is a set of federal laws. That means that someone convicted in the military justice system has a federal conviction. This is why it is extremely important to find an attorney who is very familiar with the military justice system. You likely want to find someone who practices exclusively military law.
Getting an attorney will make them think I am guilty.
Fact: A lot of people think when someone “lawyers up” it must show that they are guilty. This is not true. Generally, the people who are charged with making decisions in your case are higher-ranking with a lot of military experience, or they are trained lawyers. They know why someone may need an attorney to help them navigate difficult and complex situations.
Military law enforcement must be truthful when they are speaking to me.
Fact: Absolutely not. Many people are shocked to learn that military investigators, such as those in AFOSI, NCIS, and CID are authorized and often encouraged to flat out lie when they are interrogating you. We have seen interviews where agents will drop 100 pages of blank paper onto a table and claim that it is “proof” someone was sexually assaulted. We have cross-examined special agents who made up lies about their own relationships to convince a client to admit to domestic violence. There are too many stories to continue to list them here.
The bottom line is that military law enforcement can and does lie during an interrogation to get you to admit to doing what you were accused of. If you are read your Article 31(b) rights, invoke your right to remain silent and contact us immediately.
If I cooperate with investigators, they can recommend that the command and prosecutors go easy on me.
Fact: This is a LIE that AFOSI, NCIS, CID, and other investigating agencies tell you to get you to waive your constitutional right to remain silent. None of those agencies make any form of recommendation to your command or to prosecutors about how your case should be handled. They are trying to get you to say anything that will incriminate you, which may cause you to be in a worse position than if you had chosen to remain silent.
I can’t be taken to court-martial based on someone’s statement because that is just “hearsay.”
Fact: Many people believe that they can’t be convicted on the basis of “he said, she said” evidence. It’s important to remember: TESTIMONY IS EVIDENCE.
That means a person can be convicted based solely on the testimony of a single accuser that the person committed a crime. Such testimony is not considered “hearsay.” This is why it is so important to contact someone who has experience developing a case strategy, digging for evidence, litigating trial motions, and cross-examining an accuser.
Someone who has been drinking cannot consent.
Fact: Sexual assault is a complex area of the law. Article 120, UCMJ has many different types of offenses that someone can be charged with. Many of these accusations involve drinking alcohol. The bottom line is that people who have been drinking can consent. The facts of each case vary widely. In a court-martial, the Defense often needs a forensic psychologist to provide testimony about alcohol, memory, and blackouts, which is essential to educating the jury panel.
If I delete my internet history and messages on my phone, use an encrypted app, or do a search in incognito mode, investigators can’t find it.
Fact: When your phone is seized by law enforcement , they usually immediately take a forensic copy of your phone through a machine called a Cellebrite. These machines can pull deleted data to a certain extent. If they want more information than what the Cellebrite can pull, then your phone can be sent to the U.S. Army Criminal Investigation Laboratory (USACIL) to be forensically extracted. A full forensic extraction can reveal information that has been deleted. USACIL can also do a forensic extraction of your computer, which can also recover deleted information.
Frequently, law enforcement pulls the records from another person’s phone during an investigation, such as the person accusing you of a crime. Those records can then be used against you, even if you have deleted the information from your own phone.
If someone is using an allegedly “secure” method of engaging in an internet crime , it is likely that there is an investigator on the other side of the chat recording everything that is typed. In those instances, investigators do not need the person’s cell phone or computer.
My commander initiating an administrative discharge proceeding means I am getting kicked out no matter what.
Fact: Clients are often told before they have even been served any paperwork that they are going to be separated. These types of statements usually come from a senior enlisted member or a legal officer, neither of whom make the ultimate decision in your case.
Whether you are facing a notification administrative separation, administrative separation board or discharge board, or a Board of Inquiry, there is a process that must be followed before you can be separated. The amount of due process varies at each of these proceedings, but there are always legal standards and higher-level review.
A positive urinalysis results in an automatic discharge because of the “zero tolerance” policy.
Fact: Zero tolerance applies to knowing, wrongful ingestion of a controlled substance. In every case, the Government must prove that drug use was both knowing and wrongful. There are many ways to fight a positive urinalysis .
I can apply for an automatic discharge upgrade in six months.
Fact: This is one of the most common myths we hear. There is no window of time for someone to wait to file a discharge upgrade, though there are times that it might be better to wait due to a specific reason. There is also no such thing as an automatic upgrade. The application process can be intense, complex, and lengthy.