Gagne, Scherer & Associates defends service members at courts-martial in every branch of the United States Military. A court-martial resolves allegations that a service member violated the Uniform Code of Military Justice (UCMJ) and determines the punishment if there’s a conviction. A general or special court-martial conviction qualifies as a federal criminal conviction. States will almost always treat them as convictions for most purposes (sentencing enhancements, firearms, licensing). A conviction’s punishment can include confinement, a punitive discharge, loss of rank, and forfeiture of pay. Consequences of the conviction include loss of retirement and benefits, repayment of enlistment bonuses or education benefits, and sex offender registration.
What “Charged” Means in a Court-Martial
In the military justice system, being “charged” means you are served with court-martial charges. Being questioned by OSI, NCIS, CID, or CGIS isn’t being charged in the sense the UCMJ means, even if an agent uses the word when arresting someone. It’s a formal process and doesn’t occur at the law enforcement detachment. You’ll be notified in advance and likely told to show up for the meeting in your dress uniform. Charges occur in two stages. “Preferral” is a formal accusation that initiates the court-martial process: someone swears to the charges on a DD Form 458, the document is signed, and you get a copy. “Referral” is the decision to send those charges to a court-martial, and the process of serving you with those charges is similar to preferral. Not every case that gets preferred ends up being referred to court-martial. Charges can be dropped, added, revised, or rewritten, according to the relevant rules.
How OSTC Decides Which Cases Go to Court-Martial
The most significant recent change in military justice is who decides whether a case goes to trial. Historically, that authority belonged to commanders. For the most serious UCMJ cases, it now belongs to the Office of Special Trial Counsel.
OSTC has exclusive authority over “covered offenses,” which include sexual assault under Article 120, sex offenses against children under Article 120b, other sexual misconduct under Article 120c, distribution of intimate images under Article 117a, child pornography and sexual harassment under Article 134, domestic violence under Article 128b, homicide under Articles 118 and 119, stalking under Article 130, kidnapping under Article 125, and retaliation under Article 132. Commanders keep referral authority over everything else, including AWOL and desertion, failure to obey orders under Article 92, assault under Article 128, larceny under Article 121, and drug offenses under Article 112a.
OSTC’s success is judged by its conviction rate rather than case volume. Unlike when commanders had sole authority over the process, OSTC won’t go forward on a weak case just for optics or to satisfy an accuser. When the evidence won’t support a conviction, OSTC will negotiate a lower form of disposition or simply “defer” (decline) the case. The military branches differ on what can be done with a case after deferral: as of August 2026, the Air Force bars further UCMJ action, allowing only administrative measures, while the other branches allow prosecutors to charge the conduct under different UCMJ articles for nonjudicial punishment or court-martial.
Three Levels of Court-Martial
In order of severity from least to most: summary, special, general.
A summary court-martial is presided over by a single officer who serves as judge and sentencing authority. The maximum is one month of confinement, reduction in rank, and forfeiture of two-thirds of one month’s pay. A summary court-martial can’t impose a punitive discharge. An enlisted member has the right to refuse trial by summary court-martial, in which case the command can escalate to a higher level of court or resolve the case with a gentler outcome. A conviction at a summary court-martial doesn’t count as a criminal conviction in the civilian world, but it can appear on background checks.
A special court-martial is presided over by a military judge alone or by a judge and a panel (jury) of at least four members. The maximum punishment for a conviction is one year of confinement (similar to a civilian misdemeanor) and a bad-conduct discharge. The court can’t adjudge a dishonorable discharge or a dismissal. A special court-martial will be the forum under three main scenarios: a member turns down nonjudicial punishment or a summary court-martial, and the command sends the case to trial; the misconduct isn’t a covered offense; or, in the Army, Navy, and Marine Corps, OSTC defers a covered offense and base prosecutors recharge the conduct under a non-covered article.
A general court-martial is the typical forum for the most serious offenses and is heard by a military judge alone or by a judge and a panel of at least eight members. It’s the military equivalent of a civilian felony case, though the military doesn’t use the terms “felony” and “misdemeanor.” The maximum punishment is whatever the UCMJ article authorizes for the offense of conviction, up to confinement for life without eligibility for parole. Except in very rare instances, officer courts-martial occur at the general court-martial level, even when the underlying conduct is relatively minor.
From Allegation Through Court-Martial
Military investigations can be conducted by the command or by a law enforcement agency. Most investigations are conducted by a military criminal investigative organization (such as OSI, CID, NCIS, or CGIS). Law enforcement investigations are broad and include witness interviews, subpoenas, search authorizations, and any other activity necessary to conduct a full inquiry. Those run by the command are known as “command investigations,” and the investigator will be an officer appointed by a commander. It’s not a law enforcement investigation, but it’s official and can be used for UCMJ purposes. Common outcomes of a command investigation include nonjudicial punishment, a reprimand, and possibly an administrative separation. Command investigations tend to be narrower in scope and focus on witness statements, communication records, and documents that don’t require a subpoena to obtain. Administrative action can occur simultaneously with a military investigation, such as the suspension of a security clearance, reassignment to a new unit or duty, or the imposition of a military protective order.
Preferral
As noted above, this is the formal process of serving initial charges on the accused. An “accuser” swears to the charges on a DD Form 458 and the accused receives a copy. During the investigation, the target is referred to as “the subject.” From preferral forward, the term is “the accused.”
Article 32 preliminary hearing
When the prosecution initiates a general court-martial, a preliminary hearing is required before charges can be referred to trial. The hearing isn’t required if the accused waives it. At the hearing, a preliminary hearing officer, usually a JAG and sometimes a military judge, referred to as the PHO, will review the evidence and charges and hear the arguments from both sides. The PHO will then prepare a written report addressing probable cause, jurisdiction, and whether the charges are in proper form. The PHO also recommends what to do with the case (“the disposition”). The PHO’s input can be helpful to the convening authority and others, but the input is merely advisory. The Article 32 hearing is often an opportunity for the defense to secure a deferral.
Referral
If the decision is made to send the charges to a court-martial, they are “referred” and served on the accused. For a covered offense, OSTC makes this call. For every other offense, the convening authority decides after consulting with JAG.
Arraignment
This is a quick, scripted hearing. The accused will appear in court, with counsel. The military judge will formally announce the charges unless the accused waives that reading, and the accused formally enters pleas (always “not guilty”). The judge will address logistics and scheduling with the attorneys. Civilian counsel are often absent from the arraignment.
Pre-trial motions
Motions are the mechanism by which attorneys ask the judge for rulings in advance of trial. Motions are typically litigated at a session on a separate date from the arraignment. This session is called an Article 39(a) hearing. Counsel will argue issues related to suppression of evidence, discovery violations, and other issues. After reading the attorneys’ submissions and hearing their arguments, the military judge will issue written rulings. Sometimes this hearing occurs the day before the court-martial opens, but it’s usually weeks or months earlier.
Panel Randomization
After the convening authority details a list of members, the military judge, often through the court reporter, uses an automated system to assign them random numbers at an Article 39(a) session. The process takes five to ten seconds. When the court-martial occurs, members are taken in that order during the voir dire process until the panel is filled. The randomization hearing is another quick formality that civilian counsel rarely attend.
Findings
This is the part of the court-martial where the accused is acquitted or found guilty. The accused elects whether to be tried by a panel or by the military judge alone. The government has to prove every element of every specification of each charge beyond a reasonable doubt. The accused is not required to present any evidence.
Sentencing
If there’s a conviction, the sentencing hearing will usually be held the same day, though if findings are reached late in the evening, the court might break for the day and hold sentencing in the morning. In many cases, and in all cases where there’s a plea deal that resolves the question of guilt, the sentencing portion of a court-martial will be contested, with both sides presenting a case in support of their recommended sentence. After considering all the evidence and the attorneys’ arguments, and usually an unsworn statement from the accused or others, the military judge will impose the sentence. The sentence will be adjudged according to “parameters” that set an anticipated range of confinement for each offense. For every crime of conviction, the military judge has to impose separate periods of confinement, but those periods may run either consecutively (one after the other) or concurrently (all at once). If the accused’s punishment contains confinement, the term will begin that day.
After the Court-Martial
When the accused is fully acquitted, that’s the end of the process. When there’s a conviction, post-trial relief is usually hard to come by. The post-trial period comes before the appeals process. During this post-trial period, the military judge formally enters the judgment of the court-martial. The defense can submit clemency matters, request deferment of forfeitures, or seek other post-trial relief such as additional confinement credit.
After post-trial review, the case can be appealed to the appropriate service’s Court of Criminal Appeals, and then potentially to the Court of Appeals for the Armed Forces, the top court in the military (known as “CAAF”). An appeal to the Supreme Court of the United States is extremely rare but possible.
Appeals can raise claims of legal error, factual sufficiency, and sentence appropriateness. Common claims include the military judge’s rulings on evidence and motions, the instructions given to the panel, prosecutorial misconduct, ineffective assistance of counsel, and unlawful command influence. In rare circumstances, a military appellate court can set aside a conviction if the facts don’t support it. The appellate court can affirm the conviction, set aside some findings and affirm the rest, reduce a sentence it finds excessive, dismiss the charges, or send the case back for the convening authority to decide whether to order a rehearing.
Gagne, Scherer & Associates: Experienced Court-Martial Lawyers
For over 20 years, the former JAGs of Gagne, Scherer & Associates have defended members in all military branches across the United States and overseas through every stage of the investigative and court-martial process. If you believe charges are coming or you’ve already been notified, call (224) 935-6172 for a confidential assessment of your situation.