Category: Military Lawyer

Most service members who pop positive on a urinalysis will face an administrative separation, not a court-martial. For the great majority of those people, especially junior enlisted who tested positive for THC and are getting a General discharge, there’s nothing a civilian military lawyer can do that the JAG defense counsel can’t do for free. In those cases, the honest answer is no; save your money. But if you are being court-martialed or if you’re entitled to a board, then yes, hiring a highly experienced former JAG would be wise. If you’re in that situation, you will have a variety of strategic and tactical options for beating an Article 112a urinalysis case, depending on the forum and branch of service.

Are You Facing a Board or Are You Being Court-Martialed?

A board is the administrative equivalent of a court-martial. It gives you a chance to fight the allegations and save your career. Board entitlement for enlisted members depends on how much time in service you have and which discharge characterization the military is trying to stick you with.

Under DoDI 1332.14 and service-specific regulations, most enlisted members with six or more years of service are entitled to a separation board. Coast Guard members need to have eight years.

Any enlisted member facing an Other Than Honorable discharge is entitled to a board regardless of service time.

Officer cases are governed by a parallel rule, DoDI 1332.30, and the service-specific regulations (DAFI 36-3211 for Air Force and Space Force, AR 600-8-24 for Army, SECNAVINST 1920.6D for Navy and Marine Corps, COMDTINST M1000.4 for Coast Guard).

An officer with at least six years of active commissioned service can demand a board. With less than six years, the officer is “probationary” and can be separated by paperwork with a simple notification, so long as it’s for an Honorable or General discharge. If the military aims to separate an officer with an OTH, board entitlement is automatic, just as it is for enlisted members.

When to Hire Civilian Counsel for a Urinalysis Case

A civilian attorney might not be worth the expense of the bottom two scenarios. Without a board, there’s no hearing for contesting the allegations, no compulsory process for witnesses, and no cross-examination of lab personnel or anyone else involved in the notification, collection, or processing. The member can make a case on paper by submitting a rebuttal, but it almost never gets the command to change its mind. It’s still worth the effort to make a strong record if possible, especially for officers, and an experienced civilian military lawyer can help draft the rebuttal to raise legal issues that should be accounted for even though it isn’t a court-martial or board. But for a General discharge that’s limited to paperwork, the assigned military counsel can do that work for free, and the marginal value of civilian counsel is rarely worth what civilian counsel costs.

If you’re in a board or court-martial, the benefits can far exceed what it costs to hire a civilian military lawyer.

How a Court-Martial is Different from a Board

A separation board is an administrative process. It’s not a criminal-court proceeding. There’s no risk of confinement, a criminal record, or punitive discharge. So from one point of view, a board is much better than a court-martial.

But there are drawbacks. The burden of proof is preponderance of the evidence (which just means more likely than not), not beyond a reasonable doubt, so the case is much easier for the government to prove. And a defendant/respondent doesn’t get as many rights as at a court-martial. There’s also no judge to make legal rulings. The board is run by a senior officer, with guidance from a command-side JAG. And even though there is no punitive discharge possible at a board, an OTH is, and an OTH can have effects just as devastating as a Bad Conduct or Dishonorable discharge.

A court-martial is a criminal-court proceeding. Conviction in a military case almost always qualifies as a civilian conviction. A court-martial conviction also brings a threat of jail time, forfeiture of pay, loss of benefits, and a punitive discharge. While the risk at a court is greater than a board, the protections are too. The government is required to prove its case beyond a reasonable doubt. That can be difficult to do in non-THC drug cases based solely on a positive urinalysis. An accused has broader rights to discovery, production of witnesses, cross-examination, judicial intervention, and the assistance of expert witnesses the government has to pay for. And if there’s a conviction but the sentence doesn’t include a punitive discharge, the worst the command can do afterward is separate the accused administratively with a General.

What Defenses Might Be Available for a Drug Charge

When you’re able to fight the allegations at a court-martial or board, your strategic options depend on a handful of variables:

• The drug
• The nanogram level
• The basis for the test
• The collection and testing process
• The branch of service

The Drug

Some drug test results are harder to fight than others. A THC positive is extremely hard to beat. A cocaine positive at a low nanogram level is a winnable case. For prescription meds that don’t induce noticeable cognitive effects, a defense of mistaken/unknowing ingestion is commonly available. In all branches, a single THC positive will be resolved through an administrative separation with a service characterization of General.

The Nanogram Level

“Nanogram” or “Ng” is the number showing the concentration of the drug in your system. It’s a snapshot in time that doesn’t reveal when a drug was ingested, or how much was ingested. But the lower the level is, the better chance you’ll have raising defenses, like unknowing ingestion.

The Basis for the Test

Most urinalysis tests in the military are conducted during random “unit sweeps,” which are allowed under Military Rule of Evidence 313, and which are admissible without the prosecution showing there was probable cause to believe you had the drug in your system. A command-directed test, however, has to be based on probable cause to be admissible in a UCMJ case, which can give the defense an additional angle of attack.

The Collection and Testing Process

You can “put the lab on trial” by attacking every stage of the process: notification, observer presence, chain of custody, sealing the specimen, documentation on the bottle label, storage, shipping, lab work, the lab’s history of mistakes, and more.

The Branch of Service

The Air Force will prosecute almost any drug case, including (sometimes) THC urinalysis positives. The Marine Corps, Army, Navy, and Coast Guard will sometimes prosecute “hard drugs,” including misuse of prescriptions, but almost never THC, and in most cases, even with cocaine or opiates, a single failure will be handled through an administrative process instead of court-martial.

A 19-year-old E-2 in the Army who tested positive for THC on a single random urinalysis (a very common case) will almost always be separated with a General discharge, through a notification process alone, with no chance to fight the allegations. No civilian military lawyer can change that outcome, so they shouldn’t take the case or the young person’s money.

UCMJ Drug Case FAQs

What if I test positive again while under investigation for a positive urinalysis?

Subsequent failures can be used at a court-martial or board. Under the cases of United States v. Bickel, 30 M.J. 277 (C.M.A. 1990), and United States v. Ayala, 69 M.J. 63 (C.A.A.F. 2010), a subsequent test is a continuation of the initial, lawful test, and a failure is admissible just like the initial failure. If the initial test is found to be unlawful and inadmissible, subsequent failures derived from mandatory follow-up tests won’t be admissible either.

What if I test positive while in a drug treatment program?

You’d be processed for separation as a rehabilitation failure. Under AR 600-85 and the equivalent regulations in the other services, the worst possible characterization of discharge would be General Under Honorable Conditions. If you have six or more years of service (eight in the Coast Guard), you’re entitled to a board with the usual rights to inspect the evidence and access witnesses. The military provides free JAG defense counsel for a board. You can also hire civilian counsel at your own expense.

Does my prior enlisted service entitle me to a board as a probationary officer?

No. Your prior enlisted service doesn’t count toward the years of active service that would make you board-entitled. For example, an Air Force 2nd Lt with 12 years of enlisted service but only two years as a “probationary” officer in an enlisted-to-officer program can be separated by notification procedure for an Honorable or General discharge. The only path to a board for a drug failure as a probationary officer is if the military pursues an Other Than Honorable discharge.

Gagne, Scherer & Associates: Experienced Military Drug Charge Defense Lawyers

If you’re facing a court-martial or a board for a positive urinalysis, you have a decision to make about whether civilian counsel adds enough value to be worth the fee. In most cases the answer is yes. But if you’re not entitled to a board or court, the answer is likely no. Call (224) 935-6172 and we’ll give you a candid read on whether your case is one where we can make a difference.

You’re facing a court-martial or a separation board, and the military is going to give you a lawyer for free. So why would you spend money, money that might be hard to come by, on a civilian military defense lawyer?

It’s a fair question. The answer has nothing to do with whether JAG defense counsel are good or bad. Some of them are excellent. The answer is in the structure of the system itself, and what that structure can’t give you no matter who’s assigned to your case.

Differences Between Civilian Military Defense Lawyers and JAG Defense Counsel

In the Army, Navy, Marine Corps, and Coast Guard, you probably won’t get a JAG defense counsel until you receive court-martial charges or notification of a separation board. If you receive nonjudicial punishment or a serious reprimand, you might be able to consult with a JAG briefly. You could be under investigation for months. A year isn’t unusual. During that entire period, you’re on your own. Nobody’s answering your questions. Nobody’s developing your defense. Nobody’s picking up the phone when you’re staring at the ceiling at midnight, running worst-case scenarios through your head. The Air Force and Space Force are the exceptions. They assign defense counsel earlier in the process. Everywhere else, you wait.

And while you wait, the government isn’t waiting. The base legal office has a staff of prosecutors. The regional Office of the Special Trial Counsel, OSTC, has a team of experienced, hand-picked trial attorneys who do nothing but prosecute serious cases.

While you’re waiting, investigators are pulling your internet history, your cell records, your banking records, your text messages. They’re collecting surveillance video and taking witness statements. In a sex offense case, the Sexual Assault Response apparatus is working the other side: coaching the accuser through the process, helping them get a Base of Preference transfer, steering the case at every level. The investigation is in full gallop. You just aren’t part of it.

Under the current system, OSTC makes charging decisions independently. Commanders don’t control that anymore. Your case is being assembled by prosecutors and investigators on the government’s timeline. Nobody is working the other side of it, even if you have a JAG through the Air Force or Space Force.

When you do get assigned a JAG defense counsel, there can be a lot to like. The training is strong. Every service runs JAG courses in trial advocacy, and those programs are better than most civilian equivalents. JAG defense attorneys are a tight community. They share strategy. They swap motion templates. They help each other prepare. They show up to court looking like military officers: squared away, fit, professional. Their office is usually on your installation, so you can walk in when necessary. They don’t send invoices. They don’t have a financial reason to oversell you on their abilities or exaggerate your chances. You get honest counsel without a sales pitch.

What you don’t get: a choice.

You get whoever is assigned to your case. Your attorney might have tried twenty serious cases and know how to read a panel of senior military members. Your attorney might be two years out of law school and have never handled anything like your case. Your attorney might answer calls on a Saturday. Your attorney might shut down at 1630 on Friday and not come back online until Monday.

Most installations have one defense counsel. One attorney covering walk-ins, reprimands, Article 15s, administrative boards, special courts-martial, general courts-martial: everything. Even with a paralegal, that attorney is going to be constantly overwhelmed. That’s why most services don’t assign defense counsel until charges are preferred or a board is convened. There aren’t enough hours to go around.

And every JAG defense counsel has military obligations that have nothing to do with your case. PT. Professional development. Mandatory meetings. TDY trips. The appointed attorney working your general court-martial also has a fitness test to pass and a training calendar to satisfy.

The typical JAG defense counsel is two or three years into a military career that started right out of law school. The usual career path runs from the base legal office to the defense shop at the same installation. Everything that an attorney knows about judges, prosecutors, and command culture comes from one base. Despite the good training all JAGs get, military judges have chastised defense counsel in court for not knowing basic rules of procedure or evidence. Some of them are two or three years out of law school and haven’t had enough time to get good at this. Some of them have had plenty of time and still aren’t any good. The training can only do so much with the person receiving it. You can’t put in what God left out.

The best JAG defense counsel would be competitive with the best criminal defense attorneys in any federal courthouse in the country. But you can’t insist on being represented by one of those. You get who you get.

Civilian military defense lawyers are usually former JAGs who left active duty and went into private practice. If the attorney you’re thinking of talking to isn’t a former JAG, don’t bother. But even “former JAG” is just one credential. It tells you nothing about whether that person was any good.

Some former JAGs were mediocre at their craft when they wore the uniform, and they’re mediocre now. Some of them have websites full of lies: fabricated trial counts, inflated credentials, case results they had nothing to do with, all designed to separate scared service members from their money. Some of these lawyers are lazy. They sign up a client and shove the actual work onto the appointed JAG and paralegal at the installation. Some of them have let themselves go to the point where they couldn’t fit into a uniform if you gave them six months to make it happen. That’s a problem when your credibility with a military panel depends in part on looking like you belong in the room.

JAG Defense Counsel vs Gagne, Scherer & Associates

Gagne, Scherer & Associates: Civilian Military Lawyers

We put two former JAG attorneys on every case. Both partners trained through the JAG Corps, and both were in the top tier of military defense attorneys while in uniform. Since leaving active duty, they’ve tried hundreds of the most serious courts-martial in the military justice system, across every branch of service, at installations throughout the United States and overseas. Their experience doesn’t come from one base or one service. They’ve tried cases in Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard courtrooms, plus federal and state criminal courts. That multi-system experience is more important now than it used to be: the UCMJ reforms moved military practice closer to the federal model, with judge-alone sentencing and independent prosecutors. Gagne, Scherer & Associates has been doing federal criminal defense for over 20 years, alongside its military practice. The big transition JAG attorneys are having to make hasn’t required an adjustment for our civilian military lawyers.

Gagne, Scherer & Associates has no military obligations competing for time with your case. No PT. No mandatory training. No walk-in traffic. No one to answer to. Every working hour goes to casework.

Gagne, Scherer & Associates has been doing this long enough to have professional relationships at every level of the military justice system. Staff Judge Advocates. Appellate judges. Trial judges. Senior OSTC prosecutors. The firm also has a network of forensic specialists: DNA, digital forensics, toxicology, psychology. Our UCMJ lawyers know which expert is right for each case.

And Gagne, Scherer & Associates doesn’t hide out while the case is being developed. Almost every JAG defense counsel and almost every civilian military lawyer takes a wait-and-see approach. Wait for charges. Wait for discovery. Wait for the Article 32. Gagne, Scherer & Associates contacts OSTC and investigators the day the firm is retained, and stays in contact, working to influence the trajectory of the case before the government makes its charging decisions. Without an attorney doing that during the investigation, nobody is fighting for you at the point when the case can be derailed before it really gets going. Even if you’ve got an Air Force defense counsel assigned early, that attorney is almost certainly sitting back and letting the investigation run its course.

When a case does reach the Article 32 hearing, Gagne, Scherer & Associates treats it as the most important event in the defense case. A strong Article 32 can produce a PHO report that recommends against going to trial, and OSTC gives a lot of credence to those reports. But the hearing itself is only part of it. Gagne, Scherer & Associates uses the Article 32 process to bring favorable evidence and problems with the government’s case to OSTC’s attention directly, off the record, where a tactful conversation can accomplish more than a formal presentation. Too many defense attorneys, JAG and civilian, waive the hearing or sleepwalk through it. Gagne, Scherer & Associates doesn’t.

There’s also the part nobody talks about in legal terms: you need someone in your corner. Someone who answers when you call. Someone who gets updates from the prosecution and tells you what’s happening. Someone who keeps your command from sticking you on humiliating details or treating you like a convict before trial. That’s what early representation buys you, and it’s worth something even when the case’s ultimate path is uncertain.

When to Hire a Civilian Military Defense Lawyer

If you can afford a good civilian military attorney, hire as early as possible.

• Sexual offense case of any kind, not just sexual assault
• CSAM allegation
• Domestic violence allegations from an ex-spouse or romantic partner
• Child abuse or endangerment allegations
• Any charge where confinement is a potential outcome
• Any conviction that puts you on a sex offender registry
• Any allegation that threatens your career, benefits, or employability

Any allegation that poses the end of a military career, loss of benefits, prison time, employability, sex offender registration. If you’re under investigation for a serious offense, you need an attorney.

In most branches, the military won’t give you one. You’ll wait months without representation while OSTC and investigators build the case against you. If you’re in the Air Force or Space Force, you might get a defense counsel assigned earlier, but that attorney is still likely to take a passive approach during the investigation phase. In every branch, the government is working while you sit.

When a JAG defense counsel does get assigned, you might get someone with real experience and courtroom instincts. You might get someone two years out of law school who’s never handled a case like yours. You don’t get to choose, and you won’t know which one you’re getting until they show up.

You need help, and the system might not provide it, and if it does, the help might come too late or without the experience your case requires.

Some service members hesitate to hire a civilian lawyer because they think it makes them look guilty. If you’re under investigation, you already look guilty; that’s why there’s an investigation. Hiring an attorney doesn’t change that perception. It changes whether anyone is doing something about it.

If you can afford a civilian military defense lawyer, hire one. It can be hard to do on military pay, so service members pull from their TSP, or get help from their parents. They tap their credit cards or get loans. It’s a tough way to go, but often necessary to get the best chance of surviving. Gagne, Scherer & Associates publishes its fees because you shouldn’t have to wonder what representation costs while you’re trying to decide whether you can afford it.

But be careful about who you pick. A competent appointed JAG defense counsel will do a better job for you, for free, than a bad former JAG charging a retainer. “Former JAG” on a website tells you nothing about whether that person can try a case.

Don’t ask for a trial count or a success rate. Lawyers can spin their experience any way they want. It’s called “redefining victory.” Any attorney who quotes you a “95% success rate” is lying, and a trial count is just as easy to inflate.

Ask about experience instead. Have them describe the kinds of cases they’ve handled. Ask whether they’ve defended your type of charge. Ask what their experience is at your base, and ask whether they’ll work the case themselves or offload it to your appointed counsel. Ask how they approach OSTC and investigators during the investigation phase. Have a conversation. Gagne, Scherer & Associates has a full guide to vetting a UCMJ lawyer if you want more tips.

And don’t hire a civilian lawyer solely because they’re close to the base. The instinct to go local, to save on travel costs, to look someone in the eye before you hand over money, is understandable. It’s also a mistake. Most UCMJ work happens over phone, text, and email, even when the lawyers are on the same installation. You don’t need a short commute. You need the right lawyer, because if you get this wrong, your life will be upended: confinement, sex offender registration, your ability to find work after the military, your retirement, your benefits. This is the one decision in the entire process that you control. Don’t blow it on convenience.

Gagne, Scherer & Associates puts two former JAG attorneys on every case. Both partners were in the top tier of military defense attorneys while in uniform, and since leaving active duty they’ve tried hundreds of the most serious courts-martial in the military justice system, across every service branch, at installations throughout the country and overseas.

The firm’s UCMJ lawyers work alongside appointed defense counsel on every case but never dump the heavy work onto someone else.

Gagne, Scherer & Associates has professional relationships at every level of the military justice community, from Staff Judge Advocates to appellate judges to senior OSTC prosecutors. Gagne, Scherer & Associates has a network of forensic specialists and knows which expert fits which problem.

Most important: Gagne, Scherer & Associates doesn’t take the wait-and-see approach. The firm contacts OSTC and investigators the day it’s retained, and stays in contact, working to influence charging decisions before the government commits to a course of action. Without a lawyer doing that work during the investigation, nobody is advocating for you during the window when advocacy matters most. Gagne, Scherer & Associates is the firm most likely to derail a case before it gets to a courtroom.

The military justice system is built to process cases, not to protect you. Every part of it, the investigators, the prosecutors, the Sexual Assault Response apparatus, the command, is mobilizing against you whether you have an attorney or not. Gagne, Scherer & Associates has been standing up for service members for over 20 years, across every branch, at installations around the world. If you’re under investigation or facing charges under the UCMJ, contact Gagne, Scherer & Associates at (224) 935-6172 to directly speak with our civilian military lawyers for a free confidential consultation.