Frequently Asked Questions
What should I do if I am questioned by a member of my command or CID?
As anyone who has watched an episode of “Law and Order” knows, you have the right to remain silent. I would strongly advise that you exercise it. In my experience, it is never a good idea to provide a statement to your command or CID. You may feel that you should provide a statement to CID or to your command to “clear your name.” Resist the urge to do so.
What are my rights upon questioning?
If your chain of command or CID suspects you of committing any offense, they must provide you with your Article 31 rights prior to asking you any questions. The chain of command or CID should also provide you with a copy of DA Form 3881. This form will detail what offense you are suspected of committing and lists the following rights that you have:
- You do not have to answer any questions or say anything;
- Anything that you say or do can be used as evidence against you in a criminal trial;
- You have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with you during questioning. Your lawyer can be a civilian lawyer you arrange for at no expense to the Government or a military lawyer detailed to you at no expense to you;
- If you elect to discuss the offenses under investigation with or without a lawyer present, you have the right to stop answering questions at any time, or speak privately with a lawyer before answering a specific question.
After you have been read your rights, I recommend stating to your chain of command or to CID something to the effect: “I understand my rights, and I would like to speak with an attorney before deciding to answer any questions.”
What if I have already given a statement?
It is important that you do not give additional statements. The government may use any subsequent statements by you to highlight inconsistencies with your first statement. If you have given a statement, hopefully you did not say something that hurts your case. If you have given a statement that is harmful to your defense, there is still hope. Oftentimes, there are ways that a defense attorney can minimize the harm from your statement or even prevent the government from using your statement at trial.
Who decides what should happen in my case?
Unless Congress changes who has prosecutorial discretion, the decision of what should happen in your case lies with the command. In the military, it is the commander, not the Staff Judge Advocate, who decides whether a case will be resolved administratively or referred to a court-martial. If the case is referred to a court-martial, it is the commander who decides what the charges will be and what level of court-martial a soldier should face.
What can the command elect to do?
A basic objective of any criminal law system is to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty in proportion to their crimes, and deter future crime. Military justice shares these objectives and also serves to enhance good order and discipline. Your chain of command will make a determination of the appropriate disposition of your case based upon a review of the evidence and advice from its judge advocate. Commanders have a wide variety of options available to them to deal with alleged wrongdoing. These options include administrative actions ranging from an informal counseling, extra training, withdrawal or limitation of privileges and administrative separations, to punitive options such as punishment under Article 15 or trial by court-martial.
What are the types of court-martial and what are their general differences?
There are four types of courts-martial that may try an Army soldier. The four types are a summary court-martial, a special court-martial consisting of a military-judge alone, a bad-conduct discharge special court-martial and a general court-martial.
A summary court-martial only has the power to try enlisted members. It is intended to promptly deal with relatively minor offenses. A summary court-martial is composed of one commissioned officer who decides guilt or innocence. If a soldier is found guilty, a summary court-martial can adjudge a maximum punishment of 30 days confinement; hard labor without confinement for 45 days; restriction to specified limits for 45 days; forfeiture of two-thirds pay per month for one month; and reduction to the lowest pay grade. In the case of enlisted members above the pay grade of E-4, the summary court-martial may not adjudge confinement or hard labor without confinement, and can only reduce the solider to the next lower pay grade.
A special court-martial consisting of a military-judge alone (bench trial) can try any soldier for any noncapital offense except for rape and sexual assault. If the offense could include a sentence of more than two years if the offense were tried by a general court-martial or require sex offender notification registration, the accused has a right to object to referral to a bench trial and could request a special or general court-martial. If the case remains at a bench trial, the military judge may adjudge confinement for up to six months (only enlisted soldiers), forfeiture of two-thirds pay per month for six months, and reduction to the lowest pay grade (only enlisted members). However, the military judge may not adjudge a bad-conduct discharge or a dishonorable discharge.
A special court-martial can try any soldier for any noncapital offense except for certain offenses under Article 120 and 120b. A special court-martial can be composed of either a military judge or four panel members with a military judge. A soldier is given the right to choose the composition of the court-martial. If a soldier is found guilty, a special court-martial can adjudge a maximum punishment of confinement for one year (only enlisted soldiers); 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 pay grade (only enlisted members); and a bad-conduct discharge (only enlisted members).
A general court-martial can try any soldier for any offense. Prior to convening a general court-martial, a pretrial investigation must be conducted. This investigation, known as an Article 32 hearing, is meant to ensure that there is a basis for prosecution. An investigating officer presides over the Article 32 investigation. After the Article 32, the investigating officer makes a recommendation to the command. The command then determines whether to convene a court-martial or dismiss the case. If your case is sent to a general court-martial, it will be composed of either a military judge or at eight panel members and a military judge. A solider is given the right to choose the composition of the court-martial. If a soldier is found guilty, a general court-martial can, within the limits prescribed for each offense, impose a wide range of punishments to include confinement; reprimand; forfeitures of all pay and allowances; reduction to the lowest enlisted pay grade; punitive discharge (bad-conduct discharge, dishonorable discharge, or dismissal); reduction; fines; and, for certain offenses, death.
What should I be doing now to help my defense?
You are the primary source of information for your defense counsel. You should immediately start identifying witnesses that were involved in the alleged incident. The full name, rank, and unit of any soldier or similar information for any civilian witness will enable your defense counsel to start conducting pretrial interviews as soon as possible. You should also secure any relevant emails, text messages, or other possible digital evidence. In addition to preserving available evidence, it is a good idea to start identifying a list of witnesses that you believe would testify favorably for you about either your military character or your character for truthfulness.
Can you help me even though no charges have been preferred yet?
Your military counsel will likely tell you that there is nothing that they can do for you until charges are actually preferred. During this time, however, the government is likely working on the case against you. Once the government does prefer charges, you and your military counsel may be forced to play catch up. Mr. Coombs can assist you in anticipating the likely charges against you, and in preparing your defense prior to any charges being preferred. Instead of being on the defensive, you can choose to go on the offensive. This will enable you preserve evidence that the government may not be interested in searching for, and secure favorable witnesses on your behalf. In some instances, a thorough pretrial investigation can convince the government that charges are not warranted in your case.
I am charged with an Article 120 offense (rape, sexual assault, aggravated sexual contact, abusive sexual contact), what should I expect to happen?
Over the last few years, the military has been in the spotlight for failing to adequately addressing the problem of sexual violence. In an effort to address this problem, Congress proposed several changes to the Uniform Code of Military Justice. The President signed into law many of those proposed changes. As a result of the new changes, Article 32 hearings are now modeled after preliminary hearings in the federal criminal system. The law requires that the preliminary hearing be conducted by a judge advocate and that alleged victims of sexual assault have a right not to testify at the hearing.
Additionally, the Army has created Special Victims’ Prosecutors (SVPs) for sexual assault cases. These prosecutors are given specialized training in prosecuting sexual assault cases. The Army currently has over 30 SVPs. These SVPs are charged with traveling to various installations and trying sexual assault cases as lead counsel for the government.
Congress also created a system that mandates that in any case where a convening authority decides not to refer a sexual assault offense, the chief prosecutor of the Army may request that the Secretary of the Army review it, and if such a request is made, the Secretary must review it. There is also a move to take away the authority completely from a convening authority to decide which cases should go to trial. The pressure of all this scrutiny has resulted in a system where virtually every allegation goes to trial. The fear of being second guessed by Congress or others has taken away any willingness by a convening authority to exercise discretion based upon the facts and circumstances of a specific case.
As Congress and the Army continue to seek ways to improve the investigation and prosecution of sexual assault crimes, it is important that you ensure your defense counsel is experienced in trying Article 120 cases, and is up to date on the constantly changing rules and regulations. It is particularly important that your counsel be well versed in the restrictions presented by Military Rule of Evidence (M.R.E.) 412, commonly referred to as the “rape shield law,” which seriously limits the evidence that will be admissible at trial.
Should I hire a civilian lawyer?
If you have been charged with a crime, a great deal is at stake. If convicted, you face jail time, loss of career, loss of income, loss of family, and loss of reputation. Minus jail time, the same is true of administrative and non-judicial actions. Your goal should be to resume your life with the least possible negative impact. The best way to achieve this goal is to select an attorney to represent you that you trust. Your attorney will be the person in whom you confide. You must trust their experience and counsel. When selecting an attorney, ask the attorney if they have experience with your type of case. Talk with the attorney until you can confidently state that the attorney is the type of person you would want standing at your side. In some instances, this may mean you are happy with the detailed defense counsel from the Army. However, in others, it may mean that you need to look towards hiring a civilian counsel. For more information on making a good decision selecting who should represent you, click here.
How much will it cost?
Legal costs can differ greatly depending on the facts and circumstances of each case. The answer really depends on the seriousness of the charges, and the complexity of the case. When Mr. Coombs speaks to you and reviews your case, he will make an assessment as to how much work will be involved in case preparation, and how many court or administrative board dates it will take to resolve your case.
To help you plan for this stage of your life, Mr. Coombs charges a flat fee for representation. A flat fee provides you with the ability to know exactly what your legal representation will cost. The only additional cost to you after the flat fee will be reimbursement for expenses associated with your case. These are the actual out-of-pocket expenses, such as travel and lodging expenses, associated your representation. Mr. Coombs will do whatever he can to limit the extent of these expenses. For instance, if he can reasonably drive to your location instead of flying, he will do it. Or, if he can stay at on-post lodging instead of a hotel, he will do that too.
Some lawyers may charge less, and others may charge more. Cost is just one of the factors you should consider in selecting a civilian attorney. The most important factors in your selection process should be the experience level of the civilian attorney and whether you feel comfortable with them representing you.
How does the billing process work?
Once you are quoted the fixed fee, you are responsible for paying this fee at the beginning of the case. You also will need to provide a separate amount to cover the associated travel and administrative expenses. The travel expense budget will be held in a trust fund account, and any expense will be billed as it is incurred. For instance, suppose the retainer is $15,000 to represent you at your court-martial. A typical travel expense budget would likely be an additional $3,000. You would be responsible for providing the full $18,000 at the start of Mr. Coombs’ representation. If there are any funds left over in the travel budget at the end of your representation, Mr. Coombs will promptly refund that amount to you, along with an expense ledger.
Should I be concerned that you are not located near my installation?
Not at all. Mr. Coombs provides worldwide representation to Army soldiers. You should never select a civilian attorney simply because they are physically located in close proximity to you.
What makes your firm different?
If you have done any online research, you have undoubtedly found several law firms that advertise military justice services for the Army, Navy, Air Force, Marines, and the Coast Guard in addition to having other general areas of their legal practice. The Law Offices of David E. Coombs represents only Army soldiers. We do not accept cases from other branches of service.