A court-martial is the military’s version of a criminal trial. It determines 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 employment, housing, and reputation.
- An overview of the court-martial process
- How the Article 32 process can significantly benefit your 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.
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 referral. While many attorneys stay out of sight during investigations, early involvement can create significant advantages.
Three Levels of Court-Martial
Summary Court-Martial
- Uncommon, but still serious
- One officer acts as judge and punisher
- Potential punishment includes reduction in rank, forfeiture of pay, and up to 30 days of confinement
Special Court-Martial
- Heard by a judge alone or a panel
- Maximum exposure includes up to one year of confinement and a Bad-Conduct Discharge
- A conviction often ends a military career
General Court-Martial
- Handles the most serious UCMJ offenses
- Possible punishment includes years of confinement, a punitive discharge or dismissal, total forfeitures, and reduction to the lowest grade
- Used for cases such as sexual assault, child abuse, serious assault, and homicide
There is no such thing as a minor court-martial. Any conviction can end your career and follow you into civilian life.
The OSTC Era
The most significant structural change in military justice is who decides whether a case goes to trial. That authority once belonged to commanders. In serious cases, it now rests with 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 consists of highly trained court-martial attorneys
- OSTC is judged on how often it wins, not the number of cases filed
OSTC does not want to take weak cases to trial. If the evidence is insufficient to support a conviction, they may reduce charges, negotiate a favorable resolution, or return the case to command for a lower-level disposition. These outcomes are less likely if the defense remains inactive during the investigation and Article 32 process.
From Allegation Through Trial
- Investigation: Law enforcement interviews witnesses, collects evidence, and builds its case. You may be removed from duties, lose your clearance, or face movement restrictions.
- Preferral of Charges: The formal accusation is signed and you receive a charge sheet. In some branches, you may not have access to a defense attorney at this stage.
- Article 32 Preliminary Hearing (for GCMs): A hearing officer reviews the evidence and prepares a written recommendation.
- Referral of Charges: OSTC decides whether to prosecute, modify charges, or pursue another disposition.
- Pre-Trial Motions and Preparation: The judge resolves legal issues regarding evidence and procedure.
- Trial: The case proceeds to findings (guilty or not guilty) and sentencing if necessary.
The Article 32 Hearing: Opportunities
The Article 32 hearing is often described as a probable cause review, but it serves a broader purpose. The hearing officer may evaluate:
- The strength and reliability of the government’s evidence
- Credibility concerns
- Whether the case meets the higher burden of proof required at trial
- Whether another form of resolution would better serve justice and discipline
When used effectively, the hearing allows the defense to:
- Expose weaknesses in the government’s legal theory
- Highlight contradictions in witness statements
- Obtain a written assessment that may question the prosecution’s likelihood of success
- Engage OSTC in meaningful discussions about alternatives to trial
Some attorneys recommend waiving this hearing, but doing so eliminates these opportunities. Waiver is only appropriate in limited circumstances where a tangible benefit is gained.
What Happens at Trial
Arraignment and Motions
You appear in court, enter pleas, and litigate what evidence will be admitted. This typically occurs well before trial.
Judge or Panel
You may choose a trial by judge alone or by a panel. This decision is usually made before trial but can be finalized close to the trial date.
Findings Phase
The prosecution presents its case. The defense cross-examines witnesses and may present its own evidence. The judge or panel deliberates privately.
Sentencing Phase
If convicted, sentencing follows immediately. The defense presents mitigation evidence, including service history and personal circumstances.
After the Court-Martial
- Limited post-trial review
- Appeals to 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 factual disputes. A strong trial record is essential for appellate success.
Why Early Legal Representation Matters
Most service members do not receive an appointed defense attorney at the start of an investigation. Meanwhile, investigators and prosecutors are actively building their case.
Early involvement allows your attorney to:
- Ensure the command is acting lawfully
- Preserve favorable evidence
- Communicate with OSTC and legal authorities early
- Prevent avoidable mistakes during interviews
- Provide clear legal and strategic guidance
Waiting for charges is a white-flag strategy.
Gagne, Scherer & Associates: Experienced Court-Martial Defense Lawyers
Our civilian military lawyers have spent more than twenty years defending courts-martial across all branches of service. Our work parallels federal criminal litigation, and we are experienced with complex evidence, high-exposure cases, and OSTC strategy. We have handled Article 32 hearings, sentencing advocacy, and jury panels across all ranks and branches. We are familiar with investigative practices used by OSI, CID, NCIS, CGIS, the FBI, and state agencies.
If You Need Help, Contact Us
If you believe charges are coming or you have already been notified, call our civilian military lawyers at (224) 935-6172 for a confidential review. We can explain what is happening, what to expect, and how to protect yourself.