In the military, domestic violence is not treated as a simple assault or a private family issue. It is defined as a specific and extremely serious crime under its own statute, Article 128b of the UCMJ. This law was created to give the command and prosecutors a powerful tool to charge and punish domestic abuse with much harsher penalties than a standard assault. Prosecutions for domestic violence are now the exclusive domain of the Office of Special Trial Counsel, the military’s corps of elite prosecutors.
Your Survival Kit: Immediate Steps to Take
If you are being investigated for domestic violence, your career is in immediate jeopardy. The actions you take in the first 48 hours are critical. This is not the time for indecision.
- Invoke Your Right to Silence. When investigators (OSI, NCIS, CID) ask to speak with you, you must use these exact words: “I am not going to make a statement. I want to talk to a lawyer.” Then, stop talking. They are trained to use small talk and rapport-building to get you to waive your rights. Do not fall for it.
- Do Not Consent to Searches. Investigators will ask for your phone. Say no. They will ask to search your car or home. Say no. If they produce a written search authorization (a warrant), you must comply, but do not give them your passcode. A passcode is protected speech; biometrics (Face ID, fingerprint) are not.
- Do Not Speak to the Family Advocacy Program (FAP) Alone. FAP will open its own case and will pressure you to make a statement. They might tell you it is not a criminal investigation, which is a tactic to get you to waive your rights. Treat any request from FAP as a formal interview: do not speak with them unless your attorney is present and has advised you to do so.
- Obey Protective Orders Perfectly. Your commander will likely issue a Military Protective Order (MPO) immediately. This is not a suggestion; it is a formal, lawful order. You must obey every detail of it. Every comma, parentheses, and empty space. If it says “no contact,” that means no calls, no texts, no emails, no social media messages, and no asking friends to pass a message for you. If it says stay 500 feet away, 499 feet is a violation. Any failure to comply will result in a separate UCMJ charge being added to your case, with severe consequences. Prosecutors use these violations to portray you as someone who cannot follow orders.
- Do Not Attempt to Influence the Command. This is a catastrophic error, especially for officers and senior NCOs. Any attempt to use your rank, political connections, or media pressure will be seen as an attack on the system. All negotiations will cease, and the command will become committed to securing a conviction.
- Preserve All Evidence. Do not delete text messages, emails, or photos from your devices. Your attempts to hide information will be used as powerful evidence of your “consciousness of guilt.” If you have evidence that helps you (like screenshots or messages from the accuser), back it up immediately in a secure location. Your attorney might ask to review it confidentially.
- Hire Experienced Counsel Immediately. Silence is a right, but it is not a defense strategy. While you are being quiet, the government is actively building its case against you. Retaining an experienced UCMJ attorney immediately changes the dynamic. It provides a confidential advisor to manage the immense stress of the situation and a proactive advocate who can engage with investigators and prosecutors to protect your rights and shape the narrative from the very beginning. It also gives you an advocate who will communicate with OSTC throughout the case.
Who the Law Protects
The most important factor in a domestic violence charge is the relationship between the accused service member and the alleged victim. Article 128b applies to acts committed against:
- A Spouse: Your current, legally married partner.
- An Intimate Partner: This is a very broad category which includes a current or former spouse, someone you share a child with, someone you live with or used to live with, or anyone you are in a romantic or intimate relationship with.
- An Immediate Family Member: Your children, parents, or other relatives living in your home.
The Five Types of Domestic Violence
Article 128b makes five specific kinds of behavior illegal.
- Any Violent Act: Committing any violent crime from the UCMJ (like assault) against a protected person is automatically elevated to the more serious domestic violence charge.
- Using Any Crime to Threaten or Intimidate: This covers psychological abuse. For example, if you get in a fight with a neighbor or destroy the family pet with the specific intent to terrorize your spouse, you can be charged with domestic violence.
- Violating a Protective Order to Threaten: If you break a military (MPO) or civilian protective order with the intent to threaten or intimidate the protected person, it is a crime under this article.
- Violating a Protective Order to Commit Violence: This is a more serious version where you break the protective order with the intent to commit a violent act.
- Strangulation or Suffocation: The military singles out this act as exceptionally severe. Any assault on a protected person that involves impeding their blood flow (strangulation) or breathing (suffocation) is a major offense. It is seen as a strong indicator of future lethal violence.
The Three Career-Ending Consequences
A conviction for domestic violence has devastating consequences that are designed to be career-ending.
- Massively Increased Jail Time: The punishment for domestic violence is the maximum sentence for the underlying violent act plus an additional three years of confinement. An assault that might normally carry a five-year sentence becomes an eight-year sentence under Article 128b.
- A Punitive Discharge: A conviction at a court-martial will almost certainly result in a Bad-Conduct or Dishonorable Discharge. This ends your military career and strips you of nearly all veteran benefits.
- A Lifetime Federal Firearms Ban: This is a permanent consequence. Under a federal law known as the Lautenberg Amendment, anyone convicted of a domestic violence crime (even a “misdemeanor”) is banned for life from owning or possessing a firearm. For a service member, this is an absolute career-killer, as you are no longer legally able to perform your duties.
Problems Beyond a Court-Martial
Even without a criminal conviction, an accusation of domestic violence triggers a separate, administrative process that can still end your career.
- Family Advocacy Program (FAP): FAP will open a case, conduct its own investigation, and can order you into mandatory treatment. You can’t afford to talk to them on your own, and you never talk to them unless your attorney tells you to. You will be under immense pressure to speak with them, and they will try to trick you into it by telling you theirs isn’t a criminal investigation. No one, not even them, can make you waive your rights.
- Military Protective Orders (MPOs): Your commander can immediately issue an MPO ordering you to stay away from your home and family. Violating that order is another UCMJ offense.
- Administrative Separation: Even if you are found “not guilty” at a court-martial, the command can still kick you out of the military through administrative separation (discharge) for the underlying misconduct. For some branches, this discharge process is mandatory once an accusation is made.
Our Experience on the Front Lines of Domestic Violence Cases
For over two decades, we have defended service members in the trenches of domestic violence allegations. We have seen firsthand how these accusations frequently arise from the chaos of a divorce or a bitter custody dispute. Our experience is in dismantling “he said, she said” cases that often hinge on alcohol-impaired memories or testimony that has been contaminated by outside influence. We manage the immediate crisis that follows an accusation, such as navigating the sudden issuance of a Military Protective Order that removes a service member from their home and children. Our work includes defending you not only against the criminal charges but also in the parallel administrative fight with the Family Advocacy Program (FAP). This deep, firsthand experience is critical because we understand that these are not just legal cases; they are personal crises where your career, family, and freedom are all on the line.
Speak With a UCMJ Lawyer About Your Domestic Violence Case
If you are under investigation for domestic violence or facing a charge under Article 128b, contact us immediately at 800-319-3134 for a confidential case review.