Most service members facing UCMJ trouble are operating on bad information. Some of it comes from the barracks. Some of it comes from the internet. Some of it was true five years ago and is not true anymore. Here are the misconceptions we encounter most often.
Each entry links to a longer explanation. If you are under investigation or facing charges, call 800-319-3134 for a free consultation.
If I’m convicted, I can always appeal.
You can appeal. But the odds of success are poor. About 9% of appeals to the Service Courts of Criminal Appeals result in meaningful relief. If you lose there and petition the Court of Appeals for the Armed Forces, that court accepts only about 10% of the cases it receives, and reverses in about 1 in 5. Run the math through the entire pipeline and roughly 1 in 9 convictions gets any relief at all.
Before a case reaches the appellate stage, there are multiple points where it can end or be reduced: the investigation can be closed, the case can be resolved administratively, charges can be withdrawn after an Article 32 hearing, or the accused can be acquitted at trial. Every one of those outcomes is more likely to succeed than an appeal, and every one requires that the accused has counsel in the fight early. Read more
The commander decides whether my case goes to trial.
This was true until 2023. It is no longer true for the most serious charges. The creation of the Office of Special Trial Counsel (OSTC) transferred referral authority for covered offenses, including sexual assault, domestic violence, child abuse, and other serious crimes, from commanders to independent military prosecutors. If you are facing an Article 120 charge or another covered offense, a special trial counsel will decide whether your case goes to court-martial, not your wing commander or brigade commander.
This changes the defense approach considerably. The old strategy of building a mitigation packet for the convening authority does not apply to OSTC cases. Defense counsel who have not adapted to this structural change are working from an outdated playbook. Read more
My military defense counsel can handle this on their own.
Maybe. Military defense counsel range from outstanding to overwhelmed. The problem is not competence. It is capacity. Your assigned counsel may be handling a full docket of other cases while also dealing with walk-ins, administrative matters, their own training requirements, and collateral duties. They may be a year or two out of law school. They did not choose your case. It was assigned to them.
You have an absolute right to hire a civilian defense attorney at any stage of the process. Many service members do not know this. Nobody in the chain of command will volunteer the information. If you are facing serious charges, at minimum explore the option. Your family can help with that, but only if you tell them what is happening. Read more
I should hire a lawyer near my base.
For most civilian legal matters, local presence matters. For military cases, it does not. Experienced UCMJ lawyers travel to cases as a matter of routine. Even your assigned military defense counsel may be located at a different installation. The majority of case preparation happens by phone, text, and secure email, with in-person work concentrated around hearings and trial.
What matters is courtroom experience, familiarity with the military justice system, and the ability to communicate consistently throughout the case. A local attorney with no military experience is a worse choice than an experienced military defense lawyer who flies in for trial. Read more
Should I talk to investigators? They said it will go easier if I cooperate.
No. This is the oldest trick in the interrogation playbook and it works because it appeals to the instinct the military has trained into you: comply, cooperate, follow instructions. Investigators are allowed to say whatever they think will get you to talk. They can lie about the evidence they have. They can tell you cooperation will help. They are under no obligation to follow through on anything they say.
Once you make a statement, you cannot take it back. What you say will be used against you, and it will be interpreted in the worst possible light. The correct response when approached by OSI, CID, NCIS, or any investigator is: “I am not going to make a statement. I want a lawyer.” Then stop talking. Read more
If I stay silent, they’ll think I’m guilty.
They already think you’re guilty, or else you wouldn’t be looking for a lawyer. Once you’re under suspicion, defending yourself becomes your primary duty.
Silence is not evidence of guilt. Under Article 31 of the UCMJ, your refusal to make a statement cannot be used against you at trial. A panel cannot be told that you declined to speak, and a military judge cannot draw any inference from your silence.
Investigators may try to make you feel like silence is suspicious. That is by design. It is intended to pressure you into speaking. Do not take the bait.
Once I invoke my right to remain silent, no one can question me again.
Not exactly. Your invocation of the right to silence stops the current interrogation. But investigators can reinitiate questioning after a break, and in some circumstances other investigators from a different agency can approach you separately. The rules around re-initiation are specific and frequently litigated. This is one of the reasons you need an attorney involved early, to ensure your rights are properly asserted and to challenge any violation.
I gave a statement. My case is over.
A statement hurts, but it does not end the fight. Statements can be challenged on multiple grounds: failure to properly advise you of your Article 31(b) rights, coercion, improper interrogation techniques, or misleading promises of leniency. Even a fully admissible statement does not mean conviction is guaranteed. We have won cases where the client gave a damaging statement. The circumstances of how the statement was obtained, what it actually says, and how it fits with the rest of the evidence all matter.
I failed a drug test. There’s nothing I can do.
A positive urinalysis is the government’s strongest piece of evidence in a drug case, but it is not self-proving. The military drug testing program depends on a precise chain of custody and strict laboratory procedures. Errors happen. Samples are mishandled. Thresholds are set at levels that can be triggered by passive exposure or unknowing ingestion in certain circumstances. We have defended drug cases involving every substance the military tests for, and we have won cases where the urinalysis was positive. Read more
You can’t be convicted on one person’s testimony.
You can. There is no legal requirement for corroboration in a court-martial. A single witness’s testimony, if believed by the panel, is sufficient to convict. This is true even in sexual assault cases where there is no physical evidence, no forensic evidence, and no other witness. The “he said, she said” framing leads people to believe the case will be dismissed because the evidence is thin. It will not be dismissed for that reason alone. These cases go to trial, and panels do convict.
The defense in a credibility case is not to argue that one-witness cases cannot result in conviction. It is to attack the credibility of that witness through cross-examination, inconsistencies, motive, and the totality of the evidence. Read more
If we were both drinking, they can’t charge me.
This is one of the most dangerous misconceptions in Article 120 cases. The law does not require that only one person was drinking. It does not require that the accused was sober. The question is whether the alleged victim was incapable of consenting due to intoxication and whether the accused knew or reasonably should have known that.
Two people can be drinking together, and one of them can still be charged with sexual assault. The accused’s own intoxication is not a defense to the charge and does not support a claim of reasonable mistake of fact. A mistaken belief in consent must be one that a sober, reasonable person would have held. Read more
Old photos from a past, consensual relationship aren’t illegal.
They can be. If sexual images were created when one or both people were minors, possessing those images as an adult is a federal offense, regardless of whether the relationship was legal under state law at the time. The military prosecutes these cases under Article 134, and the consequences include confinement, a punitive discharge, and sex offender registration.
This scenario comes up frequently: a service member kept photos from a high school relationship. Both were minors when the images were taken. Years later, a device inspection or unrelated investigation turns up the files. The service member had no idea they were committing a crime by keeping them. The law does not care. Read more
An other-than-honorable discharge gets upgraded automatically after six months.
It does not. There is no automatic upgrade for any characterization of discharge. You can apply for a discharge upgrade through your service’s Discharge Review Board, and in some cases through the Board for Correction of Military Records, but there is no guarantee of success and no fixed timeline. The idea that an OTH converts to a general or honorable discharge after a set period is barracks mythology with no basis in regulation. Read more
If you’re AWOL, you can turn yourself in at any installation.
Yes, but there are right ways and wrong ways to do it, and it’s better to go back to the installation that’s looking for you.
The answer depends on your branch, your unit, and your specific situation. There is a lot of bad information online about where to surrender and what will happen when you do. Some of it comes from well-meaning people who went through the process years ago under different rules. Each service handles AWOL and desertion cases differently, and the resolution depends on the command, the circumstances of your absence, and what charges may already be pending.
Do not turn yourself in without speaking to an attorney first. We handle AWOL and desertion cases regularly and can advise you on how to return in a way that protects your interests.