When a service-member is suspected of criminal activity and violations of the Uniform Code of Military Justice (UCMJ), a Courts-Martial may be convened by the command to prosecute them. Brett L. Grayson brings over 30 years of highly competent and qualified litigation and appellate experience to the table as a former Trial and Defense Counsel for the United States Army, Civilian Defense Attorney, Assistant District Attorney, and as an Assistant United States Attorney (federal prosecutor).
There are three types of Courts-Martial proceedings that are employed by the military. They are:
The lowest level of court-martial used predominantly to prosecute enlisted service members for minor criminal offenses. The maximum punishment at a Summary Court-Martial includes confinement for no more than thirty days. A Summary Court-Martial does not have the authority to separate a service member from the military.
These types of court-martial are presided over by a single commissioned military officer who does not need to have any legal training or be a lawyer to judge the proceedings. The accused is not permitted to have legal counsel physically present; which makes the consultation and document gathering process of this kind of courts-martial vitally important.
The legal consultation may be with a military or civilian criminal defense attorney, and the accused may also request that their case be referred to another level of court-martial where the accused will have more rights and be permitted counsel as well as trial by jury or military judge.
Special Courts-Martial empowered to adjudge a Bad-Conduct Discharge (BCD)
Also known as a BCD Special Courts-martial, this level court-martial, is used to prosecute offenses and crimes that are considered misdemeanors in the civilian criminal justice system. The maximum punishment at a BCD Special Court-Martial is reduction to the lowest enlisted grade, forfeiture of 2/3 pay for 12 months, confinement for one year and a Bad-Conduct Discharge.
At a BCD Special Courts-Martial, the accused has the choice of having his case heard by a jury panel of at least three officers, or by a military judge alone. The enlisted service member also has the option of asking for a panel consisting of at least 1/3 enlisted service members.
The highest level of court-martial, the General Courts-Martial (GCM) gives the accused an additional preliminary hearing called an Article 32(b), UCMJ hearing. Although this is similar to a grand jury proceeding or a preliminary hearing in civilian court as the hearing must produce an ‘objective and impartial finding of probable cause’, it differs in that the hearing is not conducted in secret, the accused may have counsel present as representation and to cross-examine and confront witnesses. Further, the accused is allowed to present evidence, testify, call witnesses, present documents, and present argument.
This proceeding is decided by an impartial military officer after hearing all of the evidence, who will determine if there is enough evidence to allow the charges to move forward, and to which level of court-martial. This is only a recommendation however, and is further evaluated by the Commander who called the pretrial investigation to determine whether the case is sent to court-martial.
If a case is brought to a General Court-Martial, the maximum punishment depends upon the nature of the offense but often includes confinement for more than one year and a Dishonorable Discharge DD). At a General Court-Martial, the accused has the choice of having his case decided by a jury panel of at least five officers, or by a military judge alone. The enlisted service member also has the option of asking for a panel consisting of at least 1/3 enlisted service members.
At both a General Court-Martial and a BCD Special Court-Martial, a free military defense counsel is provided to the accused. The accused may also hire a civilian defense attorney at their own expense. The most important factors for any accused service member to consider when hiring a civilian defense attorney is the amount of experience the attorney has with military criminal defense work, and how successful they have been in representing service members.
A court-martial operates similar to a civilian criminal trial. Each side is represented by an attorney; there is a full presentation and cross-examination of evidence and testimony, motions practice and arguments. Trials by court-martial are presided over by a military judge, who is a JAG officer. An accused subject to prosecution by court-martial may have his case decided by a judge sitting alone or a panel of his peers (enlisted or officer panel). It is the accused’s right and decision as to who will decide his case, judge or panel. In panel cases, the trial is still presided over by a Military Judge who serves as a gatekeeper of evidence, referees the proceedings and instructs the panel on applicable law. The panel, however, then makes determinations of fact, that is, whether an accused is guilty or innocent; and if necessary, also determines the applicable sentence for offenses for which the accused is found guilty. Courts-Martial proceedings may be conducted in any location, including tents, prisons, and outdoors if necessary, and are often held in both garrison and deployed environments.
A court martial is serious business and can ruin the rest of your life and your family’s lives. Many military service members facing court martial say that they want “to roll the dice” and see what happens. Some take advice from lawyers that have never fought and won a single case and quickly plead guilty when they may have other options. Many don’t take the proceedings seriously and do not get the best representation and advice available. Below, you will see an example of what it could cost you if your gamble fails. Most people facing court martial say that they want the best legal defense possible. However, few (less than 2 out of 100) will hire an experienced defense attorney because they don’t want to spend the money. In the end, their decision will often cost them 30 to 40 times more than any defense lawyer charges.
The most common objection that expert civilian defense lawyers get when they speak with court martial defendants is “I can’t afford to hire a civilian attorney.” In reality, some people cannot afford to hire a civilian lawyer. However, most defendants can afford an excellent legal defense. The cost of a skilled military defense lawyer is often less than the price the defendant paid for his car and his music collection. (You will likely lose your car and everything you own if you lose your case). To get the best defense possible, many defendants will cash in their TSPs, stocks, sell their boat, cars, mortgage their house, use a credit card, or borrow money from family and friends. For many, it is money well spent.
Regardless of the cost of a civilian defense lawyer, the costs of not having an excellent defense team may cost you 30 to 40 times the fee of a civilian defense lawyer and can destroy every aspect of your life. Many never recover after a court martial conviction, discharge, and jail time. Here is an example of how much a court martial conviction and jail time will cost an E-6 with 12 Years. The costs are much higher for NCOs with over 18 years and officers.
When you take a plea deal, your average sentence will be 8-18 months in jail and a BCD or Dishonorable Discharge. It could be less or much more.
Cost of Jail Time:
Time in Jail / Lost Income (you generally lose your income when sent to jail)
1 month in jail /$5,549.00
6 months in jail / $33,294.00
12 months in jail / $66,588.00
18 months in jail / $99,882.00
3 years in jail / $199,764.00
10 years in jail / $665,880.00
This does not include the cost of freedom (sleeping in your bed, having romantic relations with a person of your choosing, seeing your children, visiting family, having fun, attending your children’s birthday, sports events, school events, and going out) & the social, physical, mental, and emotional price of being sent to prison and the loss of respect that you have for yourself and that others have for you. These are priceless.
(The above calculation is conservative. It is based on an E-6 with 12 years: Base Pay $3,105.00, BAH $900.00, BAS $294.00, FSA $250.00, Insurance & Other benefits $1,000.00)
LONG TERM LOSSES, IN ADDITION TO THE LOST WAGES ABOVE
- -Lost Bonuses – You will not be eligible for new military bonus. You will have to pay back bonuses. This will cost you from $10,000-80,000 in reenlistment and specialty bonuses.
- -Lost Retirement – An E-7 with more than 20 years that lives to be 85 will collect $850,000 – $1,500,000 in retirement pay and benefits.
- -Lost Medical Insurance – Basic civilian (not full coverage) medical insurance for a family of four will cost you a minimum of $12,000 a year, just for the premium. Your premium plus co-pays and other costs will add up to $300,000 to $2,000,000 million over your lifetime, depending on whether or not you have medical conditions.
- -Federal Felony Conviction – With a Federal Felony Conviction, you will generally be limited to low level, low paying jobs. This conviction will cost you $20,000-$100,000 a year in lost potential income. Over your lifetime, a Federal Felony Conviction can cost up to $3,500,000 in lost potential income.
- -As a Federal Convict, you cannot own or possess a firearm, vote, hold Government jobs, in some cases you cannot be involved in a Labor Union, and participate in Federal contracts or programs. There are immigration and passport limitations and many other consequences that make you a second class citizen.
- -Sex Offender Registry – In sex cases (even false allegations) if you are convicted, you will be a registered sex offender. You will be severely limited in employment opportunities and where you can live. You will be limited to hard labor type jobs. Over your lifetime, a sex offender conviction will cost you $40,000-$120,000 a year in lost income potential. Over your lifetime you can lose up to $4,000,000 in potential income. In addition, you will be forever labeled a “Sex Offender” and will be a social outcast.
- -As a “sex offender” you will not be able to live or work near schools, playgrounds, day cares, hospitals, swimming pools, parks, libraries, and other areas. You may not be able to be around children, you will have your face, name and address posted on the web, the police will visit you every time a crime occurs, and in some areas you must tell all of your neighbors that you are a Federally convicted sexual offender. (That does not go over well at the neighborhood BBQ). Some states are trying to pass laws that require you to have a neon green sex offender license plate. These harsh sanctions apply to people convicted in a he said/she said case where both parties drank alcohol, had sex, and later, the female claimed she drank too much and would not have consented but for the alcohol. These facts make you a sex offender as well, if convicted.
- -Loss of nearly all VA Benefits including veterans preference, medical benefits, VA home loan benefits, combat related benefits, and others. This will plague you for life and you will suffer the loss of hundreds of thousands of dollars in benefits and employment opportunities. In today’s market, getting a home loan is very difficult. The VA home loan is often your best option. However, after your court martial, the VA home loan may not be available for you.
- -Loss of nearly all military benefits. Each branch of the military gives specific benefits. You will lose nearly all of these benefits. Throughout your life, you will lose hundreds of thousands of dollars in military specific benefits.
Mr. Grayson has represented or prosecuted hundreds of individuals charged with a variety of offenses at every level of courts-martial. The insight he has gained in the military, state and federal criminal justice system will prove invaluable to you as an accused within that system. He now uses his vast knowledge and experience with the military and federal justice system to represent members of the armed forces who are facing prosecution. He is able to provide these legal services to service members in all branches of the Armed Forces, serving in garrison or deployed/mobilized environments, both stateside and overseas. Attorney Grayson carefully accepts retainers for military justice cases to ensure that he is able to devote his time and expertise to each client to ensure that justice is served in each case. If you are a service member who has been accused of or charged with a military criminal offense, call Courts-Martial Defense Attorney Brett L. Grayson at (337) 706-7646, by email at firstname.lastname@example.org.
BOTTOM LINE: WHEN FACING A POSSIBLE COURT MARTIAL, YOU CANNOT AFFORD TO TAKE YOUR CHANCES. YOU SHOULD GET THE BEST DEFENSE POSSIBLE.
NOTE: HIRING A CIVILIAN DEFENSE LAWYER DOES NOT GUARANTEE A PARTICULAR OUTCOME. SPEAK WITH AN EXPERT MILITARY LAWYER TO DISCUSS YOUR OPTIONS AND THE SPECIFICS OF YOUR CASE. NOT ALL CIVILIAN DEFENSE LAWYERS ARE THE SAME.