What says a civilian lawyer can appear in a military court?

Each service sets its own rules for practice in courts-martial for that service.  We have links to all those rules here on our External Resources Page.  Generally, any civilian attorney who is licensed in a state may appear in a court-martial without formally seeking admission.  That’s not the case for military appellate courts, which do require each attorney to formally request to be admitted before filing anything with an appellate court. 

What is the difference between military law and civilian law?

The military has its own set of criminal laws, procedural rules, rules of evidence, and its own criminal court system, including both trial courts and a system of appellate courts.  When people say “military law” they generally mean the Uniform Code of Military Justice (UCMJ)

Who is subject to military law?

The UCMJ applies to members of the military and, in some special cases, civilians who are operating with the military.  When it comes to active-duty members of the military, UCMJ has no geographical or temporal limit:  it applies everywhere, all the time… even when other state or federal laws also may apply.  In addition to the well-known services, the UCMJ applies to members of the National Oceanic and Atmospheric Administration, the Public Health Service, and other governmental organizations when assigned to and serving with the armed forces.  Enemy prisoners of war are also subject to the UCMJ while in the custody of the United States.

What crimes get you kicked out of the military?

In order to be kicked out of the military for misconduct, the act of misconduct must be “serious.”  This rule applies both in court-martials and in administrative separation.  It is the same standard for all branches of the U.S. Armed Forces, set by Department of Defense Policy.  In order for a service member to be separated for misconduct, the alleged act of misconduct must fall under an Article of the Uniform Code of Military Justice (UCMJ) that carries a possible Punitive Discharge (either a Bad Conduct Discharge or Dishonorable Discharge) as part of the listed maximum punishment under the Manual For Courts-Martial (MCM).  You can download the current version of the MCM here.

What is the most common crime for offenders in the military?

Believe it or not, the most commonly prosecuted military crime is a False Official Statement!  Each year, certain crimes see more attention than others depending on Pentagon policies and emphasis.  In the last decade, sexual assault has been a top priority.  During the Iraq and Afghanistan wars, offenses like Desertion (Article 85) and Missing Movement (Article 87) were common.  However, year after year, the overall winner of most-charged Article remains False Official Statement (Article 107).  Why?  Because if you are suspected of a crime and open your mouth the military has a ready-made way to punish you.  If you deny the accusation or say you didn’t do it, and the military does not believe you, you must be lying, right?  Additionally, if you say something that contradicts, or even appears to contradict something else you said, then that disconnect can be used to prosecute UCMJ Article 107.  That’s why we recommend that you seek competent legal advice before making any statement to anyone in the military about your situation.

What happens if a soldier commits a crime?

Any suspected or alleged misconduct must immediately be investigated by the appropriate authority.  There are a variety of different law enforcement agencies in the military dedicated to investigating alleged misconduct by military personnel (learn more about them here).  If that investigation concludes that a crime was committed, the appropriate decision authority will select what type of action to take.  The list of options include prosecution by court-martial, immediate nonjudicial punishment under UCMJ Article 15, and various other kinds of adverse administrative action.

Can civilians be tried in military court?

Generally speaking, the UCMJ does not extend to civilians, but that is not always the case.  Article 2 of the UCMJ (Title 10 U.S. Code, Section 802) says that several kinds of people we generally think of as “civilians” are actually subject to the UCMJ.  These include retired members of a regular component of the armed forces who are entitled to pay, retired members of a reserve component who are receiving hospitalization from an armed force, and all persons serving with or accompanying the U.S. Armed force in the field during a time of declared war or contingency operation.

What type of court is unique to military law?

A military trial court is known as a “court-martial.”  Courts-martial come in many different types, and you can learn more about those here.  Convictions and decisions by courts-martial are reviewed and can be appealed to each military service’s Court of Criminal Appeals (CCA).  All military courts fall under the Court of Appeals for the Armed Forces, which sits above each service’s CCA.

What does UCMJ do?

The UCMJ is a collection of federal laws, passed by Congress just like other federal statutes.  These laws are the underpinning of all military legal authority, such as the Rules for Court-Martial and Military Rules of Evidence.  Organized into “articles” running from 1 to 146A, the UCMJ can also be found as part of Title 10, United States Code, in Sections 801 through 946A.

Can you fight a UCMJ?

Sometimes service members use the term “UCMJ” as shorthand for adverse action of some kind.  You may have heard personnel say things like “the CO is gonna UCMJ Jones for missing the formation this morning.”  What that really means is that a commander is going to exercise the authority given to her/him under the UCMJ to punish a service member.  Sometimes that process is immediate, like Nonjudicial Punishment (NJP) under UCMJ Article 15.  Sometimes it is very formal, like a General Court-Martial.  Regardless of what kind of UCMJ action is happening, there are always rules and rights that apply, and we strongly encourage each service member to seek good military legal advice if they find themselves in that situation.

What happens with a GOMOR?

A General Officer Memorandum of Reprimand (GOMOR) is a formal reprimand by an Army General Officer (GO).  The location where a GOMOR (sometimes “GOMAR”) is filed significantly impacts its consequences.  These can include:

  • Local Filing: Considered a written counseling, with no further action typically taken.
  • Permanent Filing: Goes into the Soldier’s official military record and may trigger actions like involuntary separation (“Chapter”) or the Qualitative Management Program (QMP) process.
  • Withdrawal:  The General Officer also has the option to rescind (withdraw) the GOMOR entirely.

What are the consequences of a GOMOR?

When it comes to an Army General Officer Memorandum of Reprimand (“GOMOR” or sometimes “GOMAR”), the location where it is filed significantly impacts its consequences.

  • Locally filed GOMORs: These essentially serve as written counseling and are not typically used for further administrative actions. They are not included in the Soldier’s official military record.
  • Permanently filed GOMORs: These are incorporated into the Soldier’s Army Military Human Resources Record (AMHRR, also referred to as the Official Military Personnel File or OMPF). This can potentially lead to the initiation of administrative separation proceedings under specific regulations like the Qualitative Management Program (QMP) or “Chapter” processes.

It is important to note that the issuing General Officer retains the discretion to rescind (withdraw) a GOMOR entirely during the filing process, but after it is filed a Soldier must go to HRC to try to have it removed.

How do you respond to a GOMOR?

The process for responding to a General Officer Memorandum of Reprimand (GOMOR, sometimes incorrectly called a “GOMAR”) involves several steps:

  • Presentation: The Soldier receives the GOMOR with supporting evidence and has the opportunity to respond.
  • Rebuttal:  The Soldier may (but may choose not to) submit a written rebuttal.  This can include evidence, statements, or simply a letter from the Soldier.  The time period of this is short, typically a period of 7-15 days.
  • Review and recommendation: The Soldier’s chain of command reviews the rebuttal and supporting documents, providing their recommendation. This review then goes through the legal office.
  • Open-door session: While not always granted, the issuing General Officer (GO) may allow a face-to-face meeting upon request. The Soldier cannot demand this meeting as it’s not mandatory.
  • Final decision: The entire package, including the GOMOR, evidence, rebuttal, chain of command recommendation, and legal review, is presented to the GO for a final decision.

It is important to understand that you can and should get help from legal counsel in fighting a GOMOR.  For more information, schedule a free confidential consultation with our firm.

How do you rebuttal a GOMAR?

If you are presented with a GOMOR (sometimes “GOMAR”) you have a small window of time to respond.  You or your attorney will need to review the packet of evidence/information that the GOMOR is based on.  Your opportunity to respond is done in writing through a “rebuttal.”  There is no board.  The Rebuttal is critical, and we recommend that you seek the advice of qualified legal counsel.  Unfortunately, TDS generally does not provide counsel to assist with a GOMOR. 

What does a GOMOR do?

A General Officer Memorandum of Reprimand (GOMOR) is a formal reprimand issued by a General Officer (GO). While not a direct legal punishment, it carries significant potential consequences.

  • Authority: Any GO can issue a GOMOR to any Soldier, regardless of assignment or relationship.  It IS possible to receive multiple GOMOR for the same incident if different GOs both choose to take action.  (Example:  Misconduct while TDY to another command.)
  • Filing Location: The most critical aspect is where the GOMOR is filed.  Local Filing serves as a written counseling with limited impact, while a AMHRR or “permanent” Filing puts the GOMOR and its packet in the Soldier’s official military record (AMHRR) and may lead to serious consequences, such as administrative separation or the Qualitative Management Program (QMP).

What happens when you get a GOMOR?

A General Officer Memorandum of Reprimand (GOMOR) is a formal reprimand issued by a General Officer (GO). During the GOMOR process, Soldiers are temporarily flagged with an “AA” code (Adverse Action) which should be removed once the final decision is made. The GOMOR’s filing location is critical:

  • Local Filing: Serves as a written counseling and is typically removed from the Soldier’s records upon their next permanent change of station (PCS) or after two years.
  • Permanent Filing: Included in the official record at Human Resources Command (HRC) and can potentially lead to serious consequences, such as administrative separation (“Chapter” or “Show Cause”) or the Qualitative Management Program (QMP).

What happens if I get a GOMAR?

In the Army, GOMOR (sometimes incorrectly called a “GOMAR”) stands General Officer Memorandum of Reprimand (GOMOR).  It’s an adverse action:  a formal reprimand issued by an Army General Officer (GO). During GOMOR processing, Soldiers are temporarily flagged with an “AA” code (Adverse Action), which should be removed after the final decision.

Where the GOMOR is filed is crucial:

  • Local Filing: Essentially serves as a written warning kept within your unit file. Typically, no further action is taken.
  • Permanent Filing: Becomes part of your official record at Human Resources Command (HRC). This can lead to serious consequences, potentially including administrative separation (“Chapter”) or the Qualitative Management Program (QMP).

If a GOMOR gets put in my OMPF/AMHRR, can I get it taken out?

It IS possible, but it can complicated.  Removing a GOMOR is a complex process with specific regulations and procedures.  A GOMOR may be either removed through an appeal to Army Human Resources Command or moved to a Soldier’s Restricted Folder of the AMHRR/OMPF, but specific rules apply.  For that reason, it essential to seek guidance from a qualified legal professional who specializes in military law. We can advise you on the best course of action based on your specific situation.

Can I fight a military administrative separation?

Fighting involuntary separation in the military is complex and depends on several factors, including your status (enlisted or officer), reason for separation (misconduct or other), and tenure. This determines the type of due process you might receive (board presentation or written submission). The consequences of separation are significant, and every case is different.  We strongly advise scheduling a consultation if facing involuntary separation.

How do I fight administrative separation if I’m Enlisted?

The process for fighting a military separation depends heavily on your length of service:  If you have less than 6 Years of Service (Enlisted), you have fewer rights and options. Generally, your primary recourse is to submit a written request to the separation authority explaining why the misconduct did not occur or why you deserve another chance. This request should include supporting reasons and documentation.  If you have 6+ Years of Total Service you have additional due process rights, including the opportunity to present your case before a board.  If you’ve got less than 6 years and are enlisted, your first O-6 commander is the lowest separation authority.  Remember though:  If you’re facing an Other-Than-Honorable discharge, you get a board no matter what and the Separation Authority becomes the first General Officer or Admiral in your chain of command.

What years count for my Administrative Separation Board?

In order to have the protections of a board hearing, you need to have at least 6 years of total military service if you are an enlisted member.  For officers, that number if 5 years.  Both active duty and reserve duty time counts, but NOT inactive reserve time (IRR).

How do I fight administrative separation if I’m an Officer?

The process for fighting an administrative separation (“Show Cause”) for officers is slightly different than it is for enlisted personnel.  If you have less than 5 Years of Commissioned Service, you are considered a “Probationary” officer and you are not entitled to a Show Cause Board unless you have been notified that you may potentially receive an Other-Than-Honorable (OTH) Discharge.  ALL cases that involve a potential OTH require a board.  The local CO is NOT the final approval authority for officer separations.  That authority exists higher up in the service structure and varies depending on which branch of the Armed Forces you are serving in.

What Happens at an Administrative Separation Board?

The Board will hear evidence and witnesses from both sides and then deliberate in a closed session before making their decision.  The Board must make three key decisions (in both Enlisted and Officer board hearings):

  • Determine if the alleged misconduct occurred.
  • If misconduct occurred, determine whether it warrants separation.
  • If the board believes separation is warranted, recommend the characterization of the separation (Honorable, General, or Other-Than-Honorable).

How do I Defend Myself at a Separation Board?

Several things go into a strong defense at a military administrative separation board (sometimes called a “discharge board” or “board of inquiry” (BOI).  Number one on that list is always your Legal Representation: You can choose a free military attorney or hire a private lawyer specializing in these cases.  The board is prosecuted by the “Recorder” typically a JAG who presents the case for separation.  When it comes to fighting separation at the board, the next key is being ready for the Government’s case.  Your attorney needs to effectively respond to Government exhibits and cross-examine Government witnesses.  You can also present evidence to challenge the allegations of misconduct and highlight extenuating circumstances. In many board cases, the key issue is the servicemember’s overall career contributions and the value they bring to the military. The goal is to demonstrate why separation would be a significant loss for the military.  With everything that goes into a separation board and the high stakes involved, we strongly recommend anyone facing this process to contact us for a free confidential legal consultation.

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