This page gives a general overview of these practice areas. For detailed explanations and practical guidance, see the related subpages.
A court-martial is the military’s version of a criminal trial. It decides whether you violated the UCMJ and what your punishment should be if you did. A conviction can bring confinement, a punitive discharge, loss of retirement, repayment of bonuses or education, and long-term consequences for work, housing, and reputation.
This page gives you an overview of the court-martial process. We also have two related subpages that give a plain-English guide to this process and some examples of how the Article 32 process can be a massive benefit to the defense.
When a Court-Martial Begins
The military justice system uses the word charged in a very specific way. Being questioned by OSI, NCIS, CGIS or CID is not “charging.” Losing a clearance or being pulled from duty is not charging. You are charged when someone signs a charge sheet and gives you a copy. It’s a formal process and you’ll know when it happens because you’ll be given the charge sheet.
Charges move in two stages:
• Preferral: the initial accusation
• Referral: the decision to send the charges to trial
Charges can be dropped, added, or rewritten at referral. The referred charges are the ones you will face in court. A lot can happen between an allegation and a referral. Most attorneys prefer to stay out of sight during an investigation but a good attorney can create numerous advantages by getting involved early in the case.
Three Levels of Court-Martial
Summary Court-Martial
• Uncommon, but still serious
• One officer acts as judge and punisher
• Potential punishment includes reduction, forfeiture, and up to 30 days confinement
Special Court-Martial
• Heard by a judge alone or a panel
• Exposure includes up to one year confinement and a Bad-Conduct Discharge
• A conviction almost always ends a career
General Court-Martial
• Handles the most serious UCMJ offenses
• Punishment can include years of confinement, a punitive discharge or dismissal, total forfeitures, and reduction to the lowest grade
• Used for cases like sexual assault, child abuse, serious assaults, and homicide
There is no such thing as a small court-martial. Any conviction will likely end your career and follow you into civilian life.
The OSTC Era
The biggest structural change in military justice is who decides whether your case goes to trial. That authority used to rest with commanders. In serious cases, it now belongs to the Office of Special Trial Counsel (OSTC).
OSTC handles:
• sexual assault and child sexual abuse
• domestic violence
• serious assaults and Article 119b cases
• homicide
• CSAM and digital exploitation cases
What this means for you:
• OSTC, not your commander, decides whether your case is prosecuted
• OSTC is a staff of highly trained court-martial lawyers
• OSTC is judged on how often it wins, not how many cases it files
OSTC does not want to take a weak case into court and lose it. If they believe the evidence will not support a conviction in front of a fair factfinder, they will reduce charges, work out a defense-friendly deal, or defer the case back to the command for a lower form of disposition. That’s not likely to happen if the defense stays in hiding throughout the investigation and Article 32 process.
From Allegation through Trial
- Investigation
Law enforcement interviews witnesses, collects evidence, and builds its report. You might be pulled from your usual duties, have your clearance suspended, or placed under orders limiting your movement. - Preferral of Charges
The formal accusation is signed. You now have a charge sheet. In branches of service that don’t provide an attorney during an investigation, you will not have access to a defense JAG. A civilian attorney can be involved at any time, even before an investigation begins. - Article 32 Preliminary Hearing (for GCMs)
A preliminary hearing officer reviews the evidence and prepares a written assessment for OSTC. - Referral of Charges
OSTC decides whether to prosecute, modify charges, or redirect the matter to a lower disposition. - Pre-trial Motions and Preparation
The judge resolves legal disputes about evidence and procedure. - Trial
The case proceeds to findings (guilty or not guilty) and, if needed, sentencing.
The Article 32 Hearing: Opportunities
The Article 32 hearing is ostensibly for determining probable cause and the legal sufficiency of the charges. But that’s a shortsighted view. The preliminary hearing officer is encouraged to comment on:
• the strength and reliability of the government’s evidence
• credibility concerns
• whether the case will survive the higher standard of proof that would apply at trial
• whether justice and discipline would be better served by another type of resolution
Done right, the inquiry is into whether the case should go to trial.
When used properly, the Article 32 hearing allows the defense to:
• expose weaknesses in the government’s legal theory
• expose contradictions in witness accounts
• obtain a written assessment from the PHO expressing doubts about the prosecution’s likelihood of winning at trial
• open a genuine discussion with OSTC about alternatives to a General Court-Martial
Some attorneys advise their clients to waive this hearing. If the hearing is waived, these opportunities disappear. Waiver only makes sense in rare situations where something meaningful is gained in return.
What Happens at Trial
Arraignment and Motions
You appear in court, enter pleas, and litigate what evidence will be allowed. This usually occurs well in advance of the trial date.
Judge or Panel
You choose trial by military judge alone or by a panel. This decision is made on paper before trial, but can be made right up to the eve of the trial.
Findings Portion
The prosecution presents its evidence. The defense cross-examines witnesses and presents its own case. The judge or panel deliberates privately.
Sentencing Portion
If convicted, the judge sentences you immediately after the findings. The defense presents service history, mitigation evidence, and information about your circumstances.
After the Court-Martial
• Limited post-trial review
• Appeals to the service-level Courts of Criminal Appeals
• Possible review by the Court of Appeals for the Armed Forces
• Requests for clemency or parole
Appeals focus on legal error, not on second-guessing factual disputes. A solid trial record is the best safeguard on appeal. We get a lot of calls from people regretting that they didn’t hire us before trial and asking us to take their case on appeal.
Why It’s Best to Get an Attorney Involved Immediately
Most service members do not receive an appointed defense attorney at the start of an investigation. They are often told to stay quiet and wait while the investigation unfolds. Meanwhile, investigators and prosecutors are building the case. If you can’t get an attorney through JAG, or if you simply want the best defense available, you can hire one on your own dime.
Early involvement allows your attorney to:
• make sure the command isn’t abusing you
• gather favorable evidence before it “disappears”
• communicate with OSTC and base legal early for updates and persuasion
• prevent avoidable mistakes during interviews or command interactions
• give you clear guidance, answers to legal and procedural questions, and provide psychological comfort
Waiting for charges is a white-flag strategy.
UCMJ Lawyers’ Attorneys
We have spent more than twenty years defending courts-martial across every branch of service. Our work runs parallel to federal criminal litigation, and we are used to complex evidence, high-exposure cases, and how OSTC thinks. We have extensive experience with Article 32 hearings, sentencing work, communication with prosecutors, and panel members from all ranks and branches of service. We know the techniques and tricks used by OSI, CID, NCIS, CGIS, the FBI, and state agencies. There’s nothing we haven’t seen.
If You Need Help, Contact Us
If you believe charges are coming or you have already been notified, call 800-319-3134 for a confidential review. We can explain what is happening, what to expect, and how to protect yourself before the case overtakes you.