I answered a post on Avvo.com recently where a military member stated that he was investigated but not charged with an assault under Article 128, the victim being his spouse.
Domestic violence, in its simplest terms, is a threat or act of violence against a family member or someone similarly situated, like a live-in girlfriend.
If the person was a civilian and the case was being investigated by the local PD, I would have advised him to sit tight and keep his mouth shut until the state attorney officially declines to prosecute. And, hopefully no children witnessed the alleged event, so DCF would probably not be involved.
The same advice may not result in a positive outcome for a military member investigated for an allegation of domestic violence. The military member could be subject to a military protective order, regardless of whether or not the alleged victim wants one. A military protective order impacts the freedom to move and associate as well as to carry weapons and perform military duties. And, under a new DoD policy, MPOs are supposed to be entered into a national database that can be accessed by civilian law enforcement. On the other hand, a civilian court will not issue a protective order absent an application by the alleged victim and a hearing to determine if the protective order is warranted.
Additionally, a military commander can use the allegation of domestic violence against the military member to hold non-judicial punishment (NJP), give an adverse counseling, and even as a factor in fitness evaluations. In short, the allegation can negatively impact a military career even if the case is never sent to a court-martial or other court of law.
The military will also review the case at the Incident Determination Committee, or equivalent, to determine if the abuse (emotional or physical) is substantiated. This is a closed hearing that is run by the installation/base family advocacy teams – social workers. The member really has no way to defend himself or herself against the allegation at the IDC. If substantiated, the IDC finding can impact the member’s career, including being used as a basis for administrative separation or refusal to reenlist.
In sum, no allegation of domestic violence against a member of the military should be taken lightly. Even if the case is not prosecuted, there are still a variety of ways that it can negatively impact a military career.
If you are accused of domestic violence, you should consult an experienced military defense lawyer immediately to discuss the best strategy to handle the impending legal issues.