Getting a domestic violence conviction as a member of the military can end a career. In my over twenty years in the military, I have seen this happen to many people. If you get arrested for domestic violence, your career could effectively be over. You typically won’t be allowed to promote or re-enlist.It’s very important that service members have an outcome to the case that doesn’t have them pleading guilty to a domestic violence offense. A huge reason for this is because the Lautenberg Amendment, a federal law, prohibits individuals from possessing a firearm if they plead guilty to a misdemeanor domestic violence offense. It is illegal to possess a firearm after pleading guilty to any felony offense. If you can’t legally possess a firearm, then it’s very difficult to be in the armed services.
Note: I only defend individuals charged with a crime that occurred in Oklahoma.
The ability to use a firearm is crucial for all members of the military. It would be very helpful to get a domestic assault and battery charge for a member of the military reduced to something no worse than “simple” assault and battery. It is not a federal crime for someone to possess a firearm after pleading guilty to just A&B.
An issue that I see with members of the military, having been in active-duty for over ten years, is that members who get arrested are believed to be guilty just because they were arrested. Our system is supposed to presume people innocent until proven guilty. Unfortunately, that’s not the case with many military unit commanders. What they’ll do is try and make an example out of people.
Take an arrest that happens over the weekend as an example. The commander will find out about it and have the individual report in their service dress uniform early Monday morning. The commander will grill them about what happened. The member may even have to talk to several commanders about what happened. And this isn’t just for domestic violence arrests. This happens with any arrest. Additionally, the individual may have to stand before their peers and explain what happened. I’ve even seen a situation where the commander opened it up to questions from members of the audience. People in the audience were asking the arrestee questions! So, these are all things that members of the military can be subjected to—shame, embarrassment, and railroading. The biggest problem here is the breakdown in the presumption of innocence. Therefore, I try as hard as I can to get across the importance of maintaining the presumption of innocence. If you go before your commander, then you can exercise your right to remain silent. You don’t have to tell people what happened. What you say can and will be held against you—even though it’s not to law enforcement. Once you tell one person, it’s over. Let your attorney look over the evidence and discuss your case with you before you talk about it with anybody. You’ll be threatened and made to feel bad, but just know that you have rights. Don’t let higher-ranking people trample on those rights.
If you’re in the military and you get arrested, you can be tried on or off base. If it’s off base, then it will be handled by the state or city prosecutor. It’s usually not transferred to the JAG office on base. However, that does happen sometimes. If you’re arrested on base, then it’s very likely that your case will be prosecuted on base. The base’s Area Defense Counsel helps defend people on base. They’re the public defenders for members of the military. You can certainly hire a private attorney to handle your case on base. You would want somebody who’s familiar with the UCMJ, the Uniform Code of Military Justice, because that’s the body of law that they’ll be using to prosecute you. If you’re prosecuted off base, you want representation from someone who’s familiar with the procedures and the law for whatever jurisdiction is prosecuting you. Therefore, the Area Defense Counsel will likely not be helping you if your case is prosecuted off base.
Another consequence that arrested members of the military face is an Article 15—known as “non-judicial punishment.” Instead of going through a Court Martial, the commander can punish the member through an Article 15. This basically means that the commander can punish the member in some way. Instead of going through a Court Martial, they put pressure on the members to talk and implicate themselves. It’s difficult to get out of it at that point. The Article 15 is often the easiest way for the commander to go. The punishments can range from extra duty on the weekends to being confined to base—or even to getting kicked out. What often happens after a service member’s arrest is that the punishment received through an Article 15 is something that makes the service member un-promotable, so they must separate when their time is up. The punishment varies based on the severity of the crime that the member is alleged to have committed.
When a soldier is accused of breaking the law, the Army issues a GOMOR—General Officer Memorandum of Reprimand. This is written by a General Officer reprimanding a soldier for their alleged bad behavior. The GOMOR can become part of the soldier’s military files. If it’s filed locally, then it will eventually be removed from the soldier’s files. A GOMOR filed in the soldier’s permanent file will likely stay there forever; this is devastating to a soldier’s chances of staying in the Army. It’s important for a soldier to do whatever is necessary to prevent the GOMOR from becoming a permanent part of his or her file.
If you had planned on making the military a career, then one argument can end those dreams. So, it’s very important to hire an attorney who understands what’s going on with the military, the culture there, and what they’re going to try to do to you. You must find an attorney who is going to do everything they can to obtain an outcome that’s not going to end your career.