EI INCUMBIT
PROBATIO QUI DICIT.

Q&A on the UCMJ by a Military Criminal Defense Attorney

Question 1: What are the consequences when I refuse to be injected with the COVID vaccine? Court martial? Article 92?

1.Currently there is no order to take the vaccine until mid-September
2.You don’t have to take it until its FDA approved.
3.FDA approval is estimated to occur in line with Secretary Austin’s order that all DOD personnel must get the shot starting in mid Sept.
4.IF FDA approval does not coincide with the Secretaries order, then Austin will seek Presidential support in the form of an executive order granting an exception to the requirement that a drug be FDA approved prior to ordering Service members to take it. It is unclear as to whether or not such an executive order will survive litigation.
a.If there is an executive order on an exception to policy, and you refuse to take the shot, than in the short term you will be in violation of article 92, but the issue is something that could be litigated because the drug is not FDA approved.
5.Once FDA approval is in place there is no getting out of the shot unless you have a medical exception. See your provider to see if one applies.
6.Once FDA approval occurs, you are required to take the shot as it is a lawful order and you will be in violation of Article 92 of the UCM if violate it by not taking the shot.
7.Consequences for failure to follow a lawful order range from a reprimand to Courts Martial. I doubt a Courts Martial will occur in any of these types of cases. The most drastic measure will likely be adverse administrative separation from the service

In sum: if your contract is up, separate from the Service if you don’t want to take the shot. If you have a medical exception you don’t have to take it. Once its FDA approved or the President grants an exception for the Military, then you will be in violation of Article 92 of the UCMJ if you refuse to take the shot.

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Question 2: I am active military and I had a consensual encounter, but I am being told I am supposed to go see a special agent to tell my side. Should I give a statement?

The general consensus is no. However, each situation is different and there are times that making a statement is beneficial. With that being said, you should ALWAYS consult a military defense counsel before agreeing to make a statement to any law enforcement agent including CID, OSI, NCIS, and CGIS.

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Question 3: Can I really be charged with an article 120 sexual assault in the Army with no forensic evidence?

Yes. There are many cases that are charged and go to trial based on what the alleged victim ONLY said with no additional forensic evidence to support the claim. These types of cases turn into credibility contests. They also turn into a basic logic question. A good military defense investigation gets gives an accused their best chance to succeed in scenarios such as these.

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Question 4: What is the Difference Between NJP and Court-Martial?

NJP stands for Non Judicial Punishment.  Trial by court martial is judicial.  NJP is an administrative action that is meant to correct minor violations of the UCMJ.   Courts Martial are reserved for serious allegations, in violation of the UCMJ, synonymous with misdemeanor or felony level crimes in civilian society.  The consequences of a conviction in a trial by court martial are potentially a federal felony placed on the service members record.

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