Military Defendants FAQ

Why should I retain a civilian attorney when the military will give me a defense counsel at no cost?

What factors should I look for when hiring a civilian attorney for my military case?

An investigator wants to interview me. What should I do?

I left my command without authority. Can you help me?

Can I get a fair trial in the military?

What kinds of cases does Walther Law handle?

I have been read my rights. What should I do?

What is the difference between an administrative discharge and a punitive discharge/dismissal?

What is an administrative discharge board?

Am I eligible for an administrative discharge board?

What is an Article 32 hearing?

What is “pretrial confinement?”

Do you represent military members at my base/post?

What rights do I have at a court-martial?

Why should I retain a civilian attorney when the military will give me a defense counsel at no cost? The decision regarding whether or not you should hire a civilian attorney is one that may very well affect the ultimate outcome of your case, as well as your future, and should be made as soon as possible. You are entitled, by law, to have a military attorney appointed to represent you in any criminal or administrative action which has been initiated against you. You also have a right to request a specific military attorney in a Court-Martial, although that request can be denied. While situations vary, it is not uncommon to have a military attorney assigned to your case who has less than two or three years of actual trial experience. In fact, your case may be the attorney’s first contested case or members (jury) trial. Every military attorney is considered fully “qualified” under the law to represent you. It is important to keep in mind, however, that the actual experience level of your attorney is likely have a tremendous impact upon the final result, especially in complex cases.

Therefore, you should question your military attorney about his or her experience. How long has the attorney been practicing law?  How many contested cases has the attorney taken to trial? How many jury trials has the attorney had? Has the attorney ever handled a case like yours before? What kind of results has the attorney obtained? Pay close attention to the attorney, since your career and future will be in his or her hands. What kind of impression does the attorney make on you?  A confident lawyer who will not hesitate to stand up to someone of higher rank, or someone who is unsure, uncertain or insecure? Will the attorney fight for you? Or, will the attorney take the “easy way” out at the expense of your career and your freedom? The bottom line: are you comfortable placing your future in his or her hands?

There are a lot of very good, very competent military attorneys out there. On the other hand, there are also a lot of inexperienced and overworked military attorneys. Talk to your military attorney. If you’re not absolutely comfortable and confident regarding the representation he or she can provide, give us a call and we will talk to you about what Walther Law can bring to your defense team.
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What factors should I look for when hiring a civilian attorney for my military case? Any civilian lawyer you are considering for your military case should have prior active duty JAG experience. The military justice system is entirely different from the civilian justice system, including: unique offenses, and unique rules of evidence and procedure. It will be very difficult for a lawyer who has never served as an active duty Judge Advocate to be sufficiently familiar with these distinctions. Attorney Mike Walther has over 28 years of specialized military law experience as a prosecutor, defense counsel, and military judge.  At Walther Law, our accomplishments and reputation for professionalism speak for themselves. Contact us for a free consultation. We will give you our candid professional opinion regarding your situation and provide you recommendations regarding your potential options. RETURN TO QUESTIONS


An investigator wants to interview me. What should I do? The bottom line is: talk with a lawyer first. Does the investigator want to interview you because you are a suspect, or merely a witness? It is a well-established fact that our civilian and military criminal justice systems are not perfect. Mistakes are made – people are falsely accused and innocent people are sometimes convicted of crimes they did not commit. 

Whether you committed the offense being investigated or not, when you are being questioned, the best thing for you to do is to immediately invoke your rights to counsel and to remain silent. Frequently, a person who is being questioned will agree to talk to the investigators because they are afraid they will otherwise appear guilty.  That is a mistake. Most investigators are very experienced and are permitted by law to use tactics (such as lying to the suspect) designed to elicit incriminating statements.  The more a person talks to the investigators, the more he risks having what is said misconstrued or otherwise used to build a case against him.

Remember, once you agree to talk, you are putting yourself at the mercy of the investigator. A totally innocent statement misconstrued or inaccurately recorded by an investigator could later be considered in Court as an admission of a criminal act.  Even your claims of innocence can later be used as a basis of a charge of making a false official statement to the investigator.

Therefore, even if you have done nothing wrong, if you are questioned by an investigator or a member of your command about a criminal act, your best course of action is to remain totally silent. Obviously, if you have committed a crime, it is extremely important for you to invoke your rights. Although you may be told that it will help you in the long run if you admit what you did, that is rarely the case. You should invoke your right to remain silent, insist on speaking to an attorney, and give us a call for assistance.
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I left my command without authority. Can you help me? These are difficult cases, since the military’s argument is that it must maintain good order and discipline within its ranks and cannot let the soldiers and sailors decide when they want to go home. Remember, if you have been away from your command for more than 30 days there is likely a Federal warrant outstanding for your arrest and even a traffic stop can put you in jail until you are transferred back to the military and possibly for many months thereafter. In many of these cases, we have been able to secure an administrative discharge from the service, without any criminal conviction or record, for extended periods of desertion, even up to several years. In most cases, it will be necessary for the service member to return to the military to get things resolved and it may take several months for this to occur. If our legal services are retained while you are in an absentee or deserter status, we will assist in coordinating your return to the military and once you are back with your command or the deserter processing facility, we will negotiate your case and closely monitor the situation. We will endeavor to bring the situation to a prompt conclusion, hopefully without a Federal conviction, confinement or punitive discharge on your record. If the command is intent on taking you to a Court-Martial, we are prepared to litigate your case to minimize the long term consequences of what has occurred and to get you back to your family as quickly as possible.

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Can I get a fair trial in the military? The military’s judicial system is in many respects far superior to the criminal justice system of other jurisdictions. However, it is a very unique system that can easily trump upon the rights of the service member if he does not have competent legal counsel who is highly experienced in military law. So the first step in your quest to get a fair trial in the military is to ensure that you are properly represented!
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What kinds of cases does Walther Law handle? Walther Law P.C. is a boutique legal practice specializing in criminal defense, military criminal and administrative law, and internal corporate investigations. Our main office is in Johnstown, PA, serving clients in Western Pennsylvania. We also maintain an office in Southeast Louisiana to serve clients in the Greater New Orleans area. Services for our military clients are available worldwide. Our military defense practice consists primarily of the representation of military members in courts-martial, discharge proceedings, non-judicial punishment (Article 15), and other adverse administrative actions. RETURN TO QUESTIONS


I have been read my rights. What should I do? Military members enjoy the same rights against self-incrimination as any United States citizen. As a military member, you do not have to say or do anything that might tend to incriminate you. Too often, military members think that they can simply talk their way out of a difficult situation. Unfortunately, even for those members who have done nothing wrong, making a statement or cooperating with those people that are questioning you can make that difficult situation even worse. In such situations, remember the following:
• You do not have to make a statement to anyone, even someone in a position of command over you.

• You do not have to consent to a search of your home, computer, vehicle, bodily fluids, or anything else.

• You do not have to submit to a polygraph examination.

• You have the absolute right to consult with an attorney before deciding to do any of the things listed above.

If you ever find yourself accused or suspected of a crime, the safest and smartest way to proceed is to consult with an attorney qualified in military law, even if you do not think you have done anything wrong. RETURN TO QUESTIONS


What is the difference between an administrative discharge and a punitive discharge/dismissal? Commanders can initiate administrative separation actions against military members for a variety of reasons, ranging from criminal misconduct (military or civilian) to failed fitness tests to homosexuality. If a member is administratively separated from the military, that member’s service will be characterized as Honorable, General (Under Honorable Conditions), or Under Other Than Honorable Conditions. The characterization that a member receives will largely be based upon the reason for administrative discharge balanced against the quality of the member’s service during that enlistment period. Honorable characterizations are appropriate when the quality of the member’s service generally has met standards of acceptable conduct and performance of duty, or a member's service is otherwise so meritorious that any other characterization would be inappropriate. General characterizations are typically appropriate if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of his/her military record. Under Other Than Honorable Conditions characterizations (typically referred to as “UOTHC” or “OTH”) are deemed appropriate if based upon a pattern of behavior or acts that demonstrate a significant departure from the conduct expected of military members.

Punitive discharges can only be adjudged at a court-martial. For enlisted members, there are two types of punitive discharges – Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD). While BCDs can be adjudged at either a Special Court-Martial or a General Court-Martial, DDs can only be adjudged at a General Court-Martial. Officers cannot receive BCDs or DDs. Instead, the equivalent form of discharge is called a “Dismissal,” and can only be adjudged at a General Court-Martial. For that reason, officer cases are rarely referred to Special Courts-Martial. The basis for discharge and the characterization of a member’s service will greatly impact the benefits to which the member is entitled, such as veteran’s benefits and the Montgomery G.I. Bill.RETURN TO QUESTIONS


What is an administrative discharge board? An administrative discharge board is made up of three (3) members convened to consider evidence for and against the administrative separation of a military member. In many ways, a discharge board is a “mini court-martial,” albeit without the formal rules of evidence one would find at an actual court-martial. After reviewing the documentary evidence and hearing witness testimony, the members vote in secret deliberations on three (3) main issues. First, the members vote on findings of fact as to whether each allegation is supported by a preponderance (more likely than not) of the evidence and make a separate finding with regard to each allegation. Second, if the findings of the members support a basis for discharge, the members next vote on a recommendation to discharge or retain the member. Third, if the members vote to recommend discharge for the member, they must next vote on a recommendation concerning the characterization of service (Honorable, General, or UOTHC/OTH) for the member. In limited cases, the members will also vote concerning a recommendation concerning Probation and Rehabilitation. RETURN TO QUESTIONS


Am I eligible for an administrative discharge board? Each branch of service has slightly different requirements that trigger one’s eligibility for an administrative discharge board. These requirements range from a minimum amount of time in service, to one’s rank at the time of discharge processing notification, or to the basis for discharge itself. In all services, however, you are automatically entitled to present your case to a discharge board if your command is seeking an Under Other Than Honorable Conditions characterization of service. If you are unsure about whether you are entitled to an administrative discharge board, please call Walther Law P.C. for a free consultation regarding your case.

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What is an Article 32 hearing? An Article 32 hearing is often referred to as the military’s equivalent of a grand jury. Before a charge can be referred to a General Court-Martial, the government must present all available evidence to an impartial Investigating Officer. This Investigating Officer examines the available evidence and makes a recommendation to the convening authority regarding an appropriate disposition of the case. Unlike civilian grand jury hearings, however, the military permits the accused to be present and take part in the Article 32 hearing. Thus, an accused may be present with an attorney to review the government’s evidence, may present evidence in his/her defense, and may testify if desired. As a result, an Article 32 hearing is an excellent source of information for an accused to learn about the strengths and weaknesses of the government’s case.

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What is “pretrial confinement?” Pretrial confinement is physical restraint that deprives a member of their freedom pending the disposition of criminal charges against them. Only a member who is subject to trial by court-martial may be confined. A member may be ordered into pretrial confinement only when there is reasonable belief that (1) an offense triable by court-martial has been committed; (2) the member to be confined committed it; and (3) confinement is required by the circumstances. Confinement is “required by the circumstances” if it is foreseeable that the member will not appear at trial or will engage in further serious criminal conduct. During the period of pretrial confinement, military members continue to receive pay and benefits. Further, in the event a member is convicted and sentenced to confinement at their subsequent court-martial, all time spent in pretrial confinement is credited against any period of confinement received as part of their court-martial sentence. RETURN TO QUESTIONS


Do you represent military members at my base/post? Walther Law has no limitations on where we are willing to travel to represent military members. Our attorneys have represented military members at military installations all over the world. While some civilian attorneys will not travel into active war zones, we feel it is important to defend those who are defending America, regardless of where they might be geographically located. If you can get to a phone to call us about your case, we will get to you to provide aggressive, dedicated representation.RETURN TO QUESTIONS


What rights do I have at a court-martial? Contrary to popular belief, you have many rights at a court-martial. While the military’s justice system (like any justice system) does have its problems, overall it is a very fair process. The following is a non-exhaustive list of some of the rights military members enjoy at a court-martial:

• If tried before a Special Court-Martial, you may be tried by a court consisting of at least three members.  If tried before a General Court-Martial, you may be tried by a court consisting of at least five members.
• If you are enlisted, you have the right to be tried by a court consisting of at least one-third enlisted members.
• You have the right to be tried by a military judge alone.
• You have the right to challenge for cause the military judge and any court member.  You also have the right to challenge one court member peremptorily, that is, for no specified reason.
• You have the right to assert any defense or objection.
• You have the moral and legal right to plead not guilty to the charges against you.  The government must prove its case against you beyond a reasonable doubt if you plead not guilty.
• You have the right, in findings, to testify as a witness or remain silent.
• You have the right to introduce evidence through counsel.
• You have the right to confront witnesses against you and to cross-examine them.
• If you are found guilty of any offense, you have the right to introduce evidence in extenuation and mitigation and to testify under oath or make an unsworn statement personally and/or through counsel, or remain silent.RETURN TO QUESTIONS


 

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