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FAQs About Special Court Martial

September 7, 2020

Have you been arrested for committing a crime while serving in the military? If so, you are subject to military law, also known as the Uniform Code of Military Justice, or UCMJ. Depending on the severity of the allegations, you may now be facing a court martial. Don’t go it alone! With representation from an experienced, qualified military lawyer, you’ll have the best chance of proving your innocence or negotiating a more lenient sentence. Find the answers to your questions about special courts martial here.

How does a special court martial differ from the other types?

A court martial is a criminal hearing designed to determine guilt and dole out punishments. There are three types, each of which has slightly different procedures and maximum sentences allowed.

  • A general court martial is the most serious of the three. A conviction here is almost always considered a felony.
  • A summary court martial is the lowest court in the military system. It hears the cases of service members who have been accused of committing minor offenses.
  • A special court martial lands somewhere in between. This court tries mid-level, noncapital offenses and is roughly equivalent to civilian misdemeanor court.

Who is the convening authority in a special court martial?

Under the UCMJ, the “convening authority” is the person who has the power and duty to convene a court martial if a service member is suspected of committing a crime. With this authority also comes the right to prosecute, select panel members, and approve the verdict once the court martial is complete. The convening authority is usually an admiral, multi-star general, or first FLAG officer at the top of the accused person’s chain of command.

How long does a special court martial last?

The time between receiving your notification of charges and completing the special court martial is usually about three to six months. The process may take longer than this if your lawyer recommends using a military panel (the equivalent of a jury) in place of a military judge alone.

What happens if you are court martialed?

If you have been accused of a crime in the military, you should begin planning your court martial strategy right away. Here’s what happens leading up to the trial:

  • Receive notification of your charges: If you are an active duty member, you will be notified by your immediate commanding officer. Otherwise, you will receive a letter in the mail detailing the charges against you.
  • Obtain legal representation: In a special court martial, you have the right to free legal counsel. However, hiring a military lawyer is the best choice for crafting a solid defense. To ensure the best possible outcome in your case, always be completely honest and cooperative with your attorney, even if it implicates a senior or commanding officer.
  • Decide how you will plea: You have the right to plead guilty or not guilty. Your attorney may offer their opinion based on the evidence, but this decision is ultimately up to you. Only in rare cases are you better off pleading guilty in the military, though some plea bargains may prove advantageous, as discussed below.
  • Consider an Administrative Discharge: Known as a Chapter 10 Discharge in the Army and a Chapter 4 Discharge in the Air Force, this is a plea bargain in which you are discharged in lieu of facing a court martial. Discuss this possibility with your military lawyer.
  • Discuss a possible pre-trial agreement: This is a plea bargain in which your attorney negotiates with the prosecution to dismiss some or all of the charges in exchange for accepting an agreed-upon punishment. Discuss this possibility with your military lawyer.
  • Select a forum: If you decide to move forward with the court martial, you may be tried by a military judge or a panel consisting of no less than four members—it’s your choice. Most of the time, you should elect to have a panel hear your case so more people can vote on the verdict and sentence. If the accused is an active service member, they may request that the panel consist of at least one enlisted member, though this member cannot come from the accused’s unit or be junior to the accused.
  • Decide if you will testify: You have the right not to testify and cannot be compelled to do so, even by a superior officer. If you do testify, you will be subject to cross-examination. Discuss with your military lawyer which strategy you should pursue.

How do I increase the chance of an agreeable outcome in a special court martial?

With all the preparations complete, the day of your special court martial will soon arrive. In all, the trial may last two to six days. Here’s how to present yourself in the best possible light as you undergo a special court martial:

  • Dress professionally: Are you an active-duty service member? If so, wear your Class A uniform. Otherwise, simply dress neatly and conservatively.
  • Arrive early: If your case is called, and you are not present, the court could issue a warrant for your arrest. Plan to arrive early to avoid this possibility.
  • Behave appropriately: Expect a highly formal courtroom setting where no food, drinks, tobacco, or chewing gum is allowed. Turn off your mobile devices, avoid reacting inappropriately to testimony during the trial, and refer to the judge as “Your Honor.”
  • Be involved in your defense: Communicate with your legal representative regularly and provide anything your attorney asks for, including documentation, evidence, and anything else pertinent to your case.
  • Arrange good character witnesses: If you have any fellow service members who can vouch for your honesty and integrity, ask them to testify on your behalf. When pleading not guilty, a character witness can be your single biggest advantage, especially if the evidence is stacked against you.
  • Consider appealing: The accused has the right to appeal a conviction and sentence if it’s believed that the military judge made an error of the law. Appealing cases decided under the UCMJ is precise and complicated, so you shouldn’t begin the process without the assistance of an experienced military attorney.

What punishments can be doled out in a special court martial?

At the intermediate level, sentences from a special court martial land somewhere between those of a summary court martial and general court martial. Punishments may include:

  • Hard labor without confinement for up to three months
  • Forfeiture of two-thirds pay per month for up to one year*
  • Reduction to the lowest enlisted pay grade (for enlisted members only)
  • Forced Bad Conduct Discharge (for enlisted members only, doesn’t apply to officers)*
  • Confinement for up to one year (for enlisted members only)*

*Be aware that there is a new type of special court martial colloquially referred to as a “six-month special.” This limits confinement time and forfeiture of pay to six months and doesn’t allow punitive discharge.

In addition to these explicit punishments, being found guilty of a crime in a special court martial could set your military career back years. Plus, anything other than an honorable discharge could deprive you of VA benefits, including healthcare, disability compensation, educational assistance, and more.

Build Your Defense with Help from a Court Martial Attorney

If you have received notification of the charges against you, it’s time to begin building your defense. Contact Joseph L. Jordan, Attorney at Law for help defending your rights in a special court martial. We have years of experience representing service members from all branches of the armed forces deployed around the world. Let us give your case the attention it deserves! Call us toll free at 800-580-8034 or 254-221-6411 today to get started.

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