A common mistake that military members make is believing that officers are treated the same or better than enlisted in the military justice system.  That is simply not the case.  The Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCMs) have many differences that distinguish a court-martial for officers from a court-martial for enlisted.  Not only are these differences legislated into the rules and procedure for courts-martial, but the culture of the military treats officers involved in the military justice system differently as well.

Military officers rarely find themselves at a Special Court-Martial because of these cultural and legal differences found in the MCM and RCMs.  For military officers this is unfortunate because Special Court-Martials are considered the military’s misdemeanor court and General Court-Martials are considered the military’s felony level courts.  The MCM and RCMs only give Special Court-Martials the authority to send enlisted members to the brig and adjudge a punitive discharge.  The MCM and RCMs do not give Special Court-Martials the same authority when it comes to officers. 

Unlike enlisted, officers do not have two types of discharges that can be adjudged if they are convicted. The common punitive discharges that most military members know about are the Bad-Conduct Discharge and the infamous Dishonorable Discharge.  However, neither of these discharges are available to officers.  When an officer receives a punitive discharge, it is called a Dismissal.  This is an officer’s version of a Dishonorable Discharge and can only be adjudged at General Court-Martial.  A Dismissal will deprive an officer of virtually all veterans’ benefits and prevent them from federal (and most state) employment.  Officers who graduated from the military academies or received educational assistance through ROTC are sometimes required to pay back the financial aid if they do not fulfill their service obligation before being discharged.

Most of all, General Court-Martials do not have any limitations on confinement.  Therefore, it is not uncommon for officers sent to a General Court-Martial to be facing decades of brig time.

All too often, unexperienced JAGs are assigned to represent or prosecute officers at court-martial.  Just recently, I was representing a young officer and was told by the Staff Judge Advocate advising the command and prosecutor that officers could receive confinement at a Special Court-Martial.  This is simply not true.   Time and time again I’ve heard counsel talk about officers receiving Dishonorable Discharges and I cringe every time. 

Any officer facing a court-martial or Article 32 Preliminary Hearing needs to hire a seasoned civilian military lawyer that has experience with these types of matters. 

Matthew J. Thomas is a former Marine Corps Judge Advocate who was named the best Defense Counsel in the Marine Corps when he was on active duty.  He has defended military officers facing court-martial and other disciplinary actions up and down the east coast.  Mr. Thomas offers a free consultation and can be reached at 910-939-0263.  His office is conveniently located in Jacksonville, NC and he offers world-wide representation to members of the Army, Navy, Air Force, Marine Corps, and Coast Guard.