Even if the Office of Special Trial Counsel (OSTC) declines to prosecute an allegation, a process known as deferral, a commander can court-martial the military member for the same conduct. The only limitation is that the command must charge the conduct under an Article of the Uniform Code of Military Justice (UCMJ) that isn’t characterized as a “covered offense.” A recent ruling from the Court of Appeals for the Armed Forces (CAAF) authorizes this practice. What happens with a deferred case depends on the branch of service and attitude of the local command. An accused’s defense needs to begin as early as possible, not when charges are served. Early intervention by civilian defense attorneys gives the defense its best opportunity to kill the case before it gets charged.
What is an OSTC Deferral?
Deferral happens when OSTC declines to prosecute a case. Congress gave OSTC exclusive authority over the most serious crimes under the UCMJ, known as “covered offenses.”
When OSTC reviews a covered offense, the prosecutor reads the report of investigation, evaluates the evidence, interviews witnesses, and assesses the odds of conviction if the case goes to a court-martial. If OSTC determines the case might end in an acquittal, they’ll almost always decline to “go forward,” send the file to the command and the staff judge advocate, and have nothing more to do with the case.
What Happens After an OSTC Deferral?
What happens after deferral depends on the member’s branch of service and the local command climate. Gagne, Scherer & Associates’ experience and recent discussions with OSTC across the services reveal a fractured approach to post-deferral prosecution. If the command doesn’t drop the case, a variety of options are available:
- Oral counseling
- Low-level written counseling
- Reprimand
- Nonjudicial Punishment (NJP)
- Administrative separation without contested board hearing
- Administrative separation with contested board hearing
- Court-Martial (summary, special, or general)
If the command wants to court-martial the accused for the same conduct deferred by OSTC, the only limitation is that the conduct has to be charged as a “non-covered” offense. For example, an allegation of sexual assault (covered offense) can be charged as assault consummated by a battery (non-covered offense) after deferral.
| Branch | Likely Post-Deferral Action |
|---|---|
| Air Force and Space Force | Reprimand or NJP paired with an administrative separation is common; court-martial is possible if the member refuses NJP. |
| Army | Courts-martial are more common than in the other branches; Other Than Honorable (OTH) separation boards occur often. |
| Marine Corps | Courts-martial happen, but it varies by command. Reprimand or NJP paired with administrative separation is common. |
| Navy | Courts-martial are rare, even if the member turns down NJP; administrative separation is common. |
| Coast Guard | Courts-martial are rare; administrative separation is common. |
Covered Offenses and Non-Covered Offenses
The labeling difference between covered offenses and non-covered offenses is unique to military law. Covered offenses are the most serious crimes under the UCMJ, such as murder, manslaughter, rape, sexual assault, domestic violence, child pornography, sexual harassment, and several more. The difference isn’t merely a question of categorization: OSTC prosecutors have exclusive authority to refer these charges to a general or special court-martial.
Non-covered offenses are all other crimes. For example, assault, drunk driving, drug use, fraud, desertion, and violating a lawful order remain under the commander’s jurisdiction. In some instances, an act fits the definition of both a covered and a non-covered offense. A sexual assault or domestic violence allegation can also cover the elements of assault consummated by a battery. Additional elements (like sexual motivation or the nature of the victim) are what separate many incidents from being a covered or non-covered offense. OSTC can provide support in courts-martial of non-covered offenses, but the prosecutions are run by the office of the staff judge advocate.
The UCMJ prohibits a commander from charging an accused under an Article that’s a covered offense. The law doesn’t expressly address whether a commander can take the conduct from a deferred allegation, relabel it, and court-martial the accused under a non-covered Article.
The CAAF Ruling on Post-Deferral Courts-Martial
The United States Court of Appeals for the Armed Forces resolved this jurisdictional conflict in United States v. Kruse, decided on September 1, 2026, by a unanimous court.
On September 26, 2024, police responded to Marine Corporal Thomas E. Kruse’s home. His wife accused him of strangling her and pushing her down a flight of stairs. Neighbors reported hearing yells and cries for help. The command issued a military protective order prohibiting Kruse from contacting his wife, and he violated it.
OSTC had exclusive authority over the allegation because it was a domestic violence case under Article 128b, a covered offense. OSTC found insufficient evidence to obtain a guilty verdict if the case went to court-martial. They deferred.
The command, through the convening authority, referred charges to a general court-martial. Kruse was charged with violating the protective order, drunk driving, and aggravated assault. They added assault consummated by a battery and drunk and disorderly conduct. Kruse signed a plea agreement to plead guilty to drunk driving and the protective order violation.
The judge asked about OSTC’s role in the charging decision. After the government explained the deferral, the judge dismissed the assault charges, noting that “conduct remains a covered offense even after deferral by the OSTC.”
The prosecution appealed the trial judge’s ruling, and the Navy-Marine Corps Court of Criminal Appeals granted the appeal, reversing the trial judge’s dismissal of the charge. Kruse then appealed to CAAF, arguing that this practice of relabeling undermines the purpose of the jurisdictional split between covered and non-covered offenses.
CAAF disagreed, affirming the lower court and ruling that the plain language of Article 24a authorizes the commander to prosecute the deferred conduct under a non-covered offense. Since Article 128 assault is not a covered offense, the commander had authority to prosecute the conduct under that Article. Under Article 24a(c)(5), after deferral, the convening authority can do anything except refer a covered offense to a special or general court-martial.
CAAF opined that, “[I]f the OSTC declines to charge conduct as a covered offense, the plain language does not preclude a convening authority from charging the conduct as a non-covered offense. Given the competing considerations at stake, and the need to draw a line somewhere, this division of authority does not shock general moral or common sense. If Congress wishes to adjust the balance of power established by the plain language of Article 24a, UCMJ, it may of course amend the statute.”
Before the Kruse decision, the service branches were split on how they handled deferred allegations. The Marine Corps would court-martial on occasion; the Army was far more willing to take deferred conduct to trial; the Navy, Air Force, and Coast Guard preferred to drop the case or use the administrative separation process. It remains to be seen how the services will handle deferred cases in the wake of the Kruse decision, but the expectation is that the services will continue to follow their previous practices.
Kruse’s Impact on Defense Strategy
The holding in Kruse underscores how important it is for a defense attorney to get involved long before OSTC or the command makes its charging decision. In the OSTC era, it’s not sufficient to advise a client to invoke his rights, stay out of sight, and call back when charges get served. OSTC looks for easy wins that protect its conviction rate without risk; it also looks for reasons to defer a case. The defense attorney’s primary objective is to give OSTC those reasons.
Anything an accused says can and will be used against him, but that’s not how it works for defense attorneys. Defense attorneys can proffer information and context that prosecutors can’t use against the client. They can present evidence investigators don’t have and won’t look for. They can also reveal information about an accuser’s credibility that will compromise OSTC’s odds of conviction. Broadly speaking, the defense attorney tries to create reasonable doubt in OSTC’s mind about whether the case will result in a conviction at trial. The attorney can do this ethically and transparently without harming the client. It’s a free opportunity most defense attorneys don’t take. Even when probable cause is effectively a given, early intervention by defense counsel can persuade the OSTC or the command to secure a favorable outcome for the accused.
Deferred Cases Can Still Go to Court-Martial
A deferral transfers jurisdiction to the command. It doesn’t mean the case is over. It doesn’t mean there won’t be a court-martial. Once OSTC declines to go forward, the defense needs to redirect its attention to the staff judge advocate and the unit’s trial counsel. The objective remains the same: present facts showing a court-martial will result in an acquittal, push for an administrative resolution, or persuade the command to drop the case. The worst decision an accused can make after an OSTC deferral is to do nothing, let his attorney do nothing, and assume the danger has passed. An idle defense leaves the local command free to pursue court-martial charges without obstruction.
Gagne, Scherer & Associates: Court-Martial Defense Lawyers
Whether or not your case has been deferred by OSTC, your court-martial defense should focus on intervention. Even when a case gets deferred, the accused is still at risk. Gagne, Scherer & Associates deploys proactive strategies in every case, no matter which prosecutor’s office is handling it. If you’re dealing with an investigation or UCMJ charges, call (224) 935-6172 for a confidential consultation.