Officer Court-Martial Defense
Officers are treated differently by the military justice system. An officer court-martial is fundamentally different than a court-martial for an enlisted person. The Manual for Courts-Martial (the MCM) has dozens of provisions that separate officers from enlisted. The treatment stems from the historical difference in rank – basically the military’s “class” system.
Naïve enlisted persons often think officers are treated much better when it comes to misconduct, which for low level infractions like tardiness and dereliction of duty is probably an accurate assessment.
However, an officer facing charges at a court-martial is much more serious than an enlisted person facing court-martial. Officers should only be sent to a General Court-Martial via an Article 32 Preliminary Hearing. At a Special Court-Martial, an officer cannot be discharged or be punished by confinement to a brig or stockade. At a General Court-Martial, an officer can be “dismissed.” A Dismissal is the equivalent to, or perhaps worse than, a Dishonorable Discharge. A Dismissal will deprive an officer of virtually all veterans’ benefits and bar him or her from federal (and most state) employment. At a General Court-Martial, an officer can face confinement up to the statutory maximum, which for most offenses under the Uniform Code of Military Justice (UCMJ) is more than 5 years confinement. And, officers who received educational assistance (ROTC, military academies), if dismissed before completing his or her service obligation, will be required to repay the balance to the U.S. Treasury. I have seen bills over $100,000!
The composition of a military officer court-martial. Since the jury members have to be senior to the accused officer, you often end up with senior officers on the panel who have decades of military service.
Practically, officer misconduct is treated more seriously. A “zero defect” mentality applies to officer conduct. A single NJP for an officer is almost always career ending. And, officers who are sent to court-martial normally receive lots of attention by both the media and leadership.
On at least two occasions (probably more if I think hard), I have watched military defense counsel flounder in an officer court-martial. I have seen a defense counsel inform his officer client, in open court, that he could receive a Dishonorable Discharge (not true!). I have watched military counsel (both prosecutors and defense) agree to confinement at a Special Court-Martial (not a possible punishment at that type of court)! If the lawyers can’t even get the basics down, how can an officer have faith, under life-changing circumstances, that he or she is going to get a fair trial and a zealous defense?
Any officer facing a court-martial or Article 32 Preliminary Hearing needs to hire an experienced civilian military lawyer – whether the charges are sexual assault, theft, assault, or conduct unbecoming an officer.
Patrick Korody is a former active-duty Navy JAG who was certified by the Judge Advocate General of the Navy as a Military Justice Specialist. He has prosecuted and defended military officers facing court-martial or other disciplinary action around the world. He offers a free consultation and can be reached at 904.383.7261. His offices are conveniently located in Jacksonville, FL. He offers world-wide representation to members of the Army, Navy, Air Force, Marine Corps, and Coast Guard.