A civilian arrest of a member of the military will, at minimum, trigger a command investigation into the nature and circumstances of the arrest. Most often, the investigation will simply consist of a copy of the police report. Military commanders then make a decision on whether or not to proceed with administrative or disciplinary action against the military member. Commanders could determine that court-martial charges are warranted based on the matters in the police report. The commander could do nothing or decide to monitor the civilian criminal process before making a decision. In the majority of cases, the commander will move to administratively separate the member who was arrested under the philosophy that it is best to part ways with the military member before he or she becomes more of a problem for the unit. Commanders achieve this goal by initiating administrative separation (ADSEP) for misconduct, namely commission of a serious offense.
There are a few circumstances where it is in the best interest of the member to part ways with the military quickly. The most common scenario is where there is a very serious charge against the member and the civilian prosecutors are not doing their job. The last thing the member wants is the U.S. military taking over the case, with its teams of investigators and prosecutors. Make no mistake, the military out-investigates and out-prosecutes its civilian counterparts 9 out of 10 times.
In most cases, however, the military member is getting the short-end of the stick. First, his or her civilian defense attorney has no understanding of military processes and procedures, and the advice often harms the member’s career, placing them in a worse position to continue to serve. Second, police reports, by their very nature, are aggravating for the suspect/arrestee. Police officers are paid to write reports that make the suspect look guilty – to be more clear, to look as guilty as possible without fabricating facts. In the civilian world, these reports are used for charging purposes and to, perhaps, leverage a guilty plea. Military commanders, who are untrained outsiders to the civilian legal world, read these reports as gospel and rush to judgment, ending a military career based on the unchallenged typed report of a police officer. Third, most members are turned on by their chain of command at the first sign of trouble – the proverbial Charlie Foxtrot – because the arrest paints the unit and chain of command in a bad light. By getting rid of the problem, the chain of command has taken appropriate action and preserved itself.
How do you prevent being flanked by the military when you are facing a civilian charge?
Nothing is worse than fighting on two fronts at the same time – just ask the Germans how World War II ended. In most, if not all, large military concentration areas there are lawyers that are former judge advocates (JAG) who handle both civilian criminal matters and military justice and military law matters. THIS IS THE TYPE OF LAWYER YOU WANT TO HIRE. You want a local military law lawyer, licensed in the state, with state criminal law experience. Hiring the flashy criminal defense attorney with commercials is not the right guy for your case. Hire a lawyer who will not only represent you with the state charges but will also represent you with the military. I have had great success calling commanders and explaining to them exactly what is happening with their Soldier, Marine, or Sailor and why they should not take action against the member.
Attorney Patrick Korody has represented hundreds of active duty and reserve military members facing military and state criminal charges. His office is located in Jacksonville, Florida. He is licensed to practice law in Florida and Maryland and various federal and military courts.