COVID 19 and Military Justice

Korody Law continues to handle administrative separation boards, boards of inquiry, Article 32 Preliminary Hearings, pretrial confinement initial review officer hearings (IRO hearings), courts-martial (Special Courts-Martial and General Courts-Martial), and security clearances, even after the military has implemented its restrictions on travel and social distancing measures.  We have had some courts-martial charges dismissed without prejudice that were early on in the process – the clear intent in these cases is that the charges will be brought again once the threat of the virus has been eliminated or substantially mitigated.  Interestingly, the decision to dismiss these charges was made at a time when we believe most in the military thought the impact of COVID 19 on the military justice system would be short-lived.

Administrative hearings such as administrative separation boards and boards of inquiry have continued at a local level.  This has led to somewhat unequal treatment – those facing boards at geographically isolated, smaller bases without military defense counsel have not proceeded to hearings because military defense counsel are not allowed to travel.  Thus, those members continue to serve on active duty.  In some cases, these members of the military have received more favorable discharges because the command would rather not wait an indeterminate amount of time to hold the hearing.

At the same time, commanders  have not delayed hearings for military members facing separation on larger installations that have military defense service offices despite issues producing in-person witnesses.  Hearings have been held in larger rooms where both the members and the parties can social distance.

Courts-martial proceedings have generally stalled unless the accused is in pretrial confinement.  Even then, trials have been delayed because military witnesses have not been allowed to travel under the DoD travel restrictions and civilian witnesses have been reluctant to comply with subpoenas.  There is also the issue as to where to put a members panel (jury) in the courtroom while maintaining social distancing.

So how can any of this be to the benefit of the Sailor, Marine, Airman, or Soldier?  It depends how the member wants to play it and the specific circumstances of the case.  It may be in the military member’s interest to ride out the COVID 19 train… staying on active duty as long as possible, keeping that paycheck and benefits.  This strategy may wear down the commander into a more favorable disposition.  Or, with no indication as to when exactly business as usual will resume, it may be a good time to negotiate a more favorable separation from the service before plans are made to resume UCMJ and administrative proceedings.

This is a new environment, and military members facing UCMJ charges or involuntary administrative separation need to discuss with an experienced military attorney how they can use the current COVID 19 environment to his or her advantage.

Attorney Patrick Korody has practiced military and UCMJ defense for more than 15 years and has been referred to as one of the best military defense attorneys in the nation.  He handles all UCMJ cases and administrative separation cases across all services, worldwide.

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