What Happens to the Day-to-Day Life of Military Personnel Under Criminal Investigation?

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Interviewer: If you’re under investigation, or you’re being charged with a crime, do you go about your normal duties or do you have a different kind of existence? Do they confiscate your weapon? What do they do with you?

Chris: It just depends on the crime. For instance, if you’re military police officer and you’re charged with spousal abuse, you can’t carry a weapon.

Your clearance, if you had secret or top secret clearance, is suspended. Your access to computer networks is suspended. Now, all of these scenarios can happen. However, they don’t always happen.

In the Military, the Commanding Officer Is Instilled With Knowing How Best to Uphold Military Discipline

Depending on the severity of the case and depending on the direction the commander wants to take, and the military justice system, by and large, is a commander-driven system. This is because the purpose of the UCMJ, the uniformed code of military Justice in the military, is to uphold good order and discipline.

The commander, the person most familiar with his troops and the morale of the situation is believed to know the best way to control his troops.

Attorney Cazares Is Typically Contacted When a Military Member Is Informed They Are Under Investigation

Interviewer: At what stage in a case are typically contacted by a defendant?

Chris: Typically, I’m called in post interrogation. As soon as somebody knows that they’re suspected of a crime, they’ll generally call. Sometimes, if they think they’re going to go under investigation, they’ll call in advance.

I rarely get phone calls, after the article 32. I will usually get a phone call after referral of charges or after they know that they’re being investigated.

Are Military Personnel More Informed Than Civilians About the Criminal Investigation Process?

Interviewer: How savvy are people in the military? Do they know the criminal process in the military or are they just as unaware as normal citizens are about to the process?

Chris: I think they’re a little bit more familiar. They either know somebody who’s going through this or has gone through some type of investigation. Between that and the briefings you get when you first are conducted into the military. Everybody gets The Uniform Code of Military Justice briefing.

Military Personnel Are Briefed on the Uniform Code of Military Justice When They Enter Military Service

Now, I can’t say how much of that information is retained When they finally get assigned to their first base, their tech school, they attend these briefings. Generally, they have a rudimentary understanding of the system and, the longer they’re in the military, the better they understand what’s going to happen.

So, good order and discipline is something that affects every military member. They usually know somebody who has gone through non-judicial punishment. They know somebody who has gone under investigation. If he or she is an officer, they may have already preferred charges.

criminal investigation process

Military Personnel May Be More Likely to Answer Questions Without Having Defense Counsel Present

They may have read somebody their article 31 rights. They may have administered punishment. They may have preferred or referred charges. So, I think, to answer the question, yes, military members have a better understanding. It can be just enough to get them in trouble.

They do have an understanding of the system and they want to get it over with as fast as possible. That may lead them to speak to investigators without an attorney or without having gotten the advice of an attorney. It can get them into a little bit more trouble.

Interviewer: Actually, what I was going to ask you next is what are the unintentionally common mistakes that military members are prone to make that are detrimental to their situation?

Chris: I believe just talking too freely to investigators, thinking that by somehow cooperating with police or investigators, they’re going to improve their situation, likely, because the investigators told them it would.

Attorney Cazares Recommends to Always Consult With a Defense Attorney Before Cooperating with Investigators

But, really, if you know that you’re suspected of a crime, you still don’t understand the full nature of the evidence against you and you won’t understand that unless you talk to an attorney.

Interviewer: If you’re in the military, you’re used to submitting to authority. That’s probably why, when members of the military are interrogated, they would tend to want to be more helpful in response to the authority.

Chris: I think that’s true. I think that you believe your part of a fraternity or you’re part of a system, you’re part of the machine and you don’t realize the machine can bite you back.

Do Military Personnel Expect More Favorable Treatment When They Are Under Criminal Investigation?

Interviewer: Do you find that they believe that they part of a military family?  Do the commander and the prosecutor treat them that way or are they treated according to the rules, the laws, without any favoritism?

Chris: I really believe that the surprise for the military member is because they’ve given so much and they’ve invested so much of their life in this service. They’ve gone on deployment. They sweated. They followed the rules.

They’ve done the best they can and they make one mistake. They believe they’ll get the benefit of the doubt. They just want to continue to do the mission, to keep the ball rolling, but with certain offenses, that’s not what’s going to happen.

You’re going to go under investigation. It’s a lengthy process. There are shortcuts. It’s the exception to the rule when an investigation closes early and it goes away.

The Commanding Officers Have to Answer to Higher Authorities and Are Responsible for the Behavior of Those Under Their Command

Everybody believes, because they have this service that’s their paradigm that they’re going to be shown some favoritism but the fact of the matter is, even commanders have to answer to their higher-ups and they can’t simply just allow misconduct to continue.

When the machine turns around, the families that have so much at stake have a hard time understanding that all of that can be lost, their retirement, their service. They could be discharged dishonorably, with bad conduct and it’s just a shock.

After you’ve given so much of your life defending your country, it’s hard to accept that you could be hurt so bad. I think a feeling of betrayal is common.

A High Ranking Officer Will Not Receive Preferential Treatment During a Criminal Investigation

Interviewer:  If a member of the military has attained a high rank, can they expect some show of favoritism?

Chris: You’ll hear of that. You’ll hear all of this that there’s a lot of favoritism or people suspect that but I think what you really end up seeing is that it doesn’t matter who you are or how high up you are on the chain of command.

MILITARY PERSONNEL UNDER CRIMINAL INVESTIGATION - The Steps of a Military Investigation - What to Expect

The Steps of a Military Investigation: What to Expect

Military investigations generally follow a standard series of steps from initial inquiry to resolution. 

Here is an overview of what you can expect at each phase:

  • Information Gathering – Investigators will interview witnesses, review records, and collect evidence related to the suspected misconduct. This is a critical information-gathering stage.
  • Interrogation – If identified as a subject of the investigation, you will undergo interrogation by trained agents. Be prepared to assert your Article 31 rights to remain silent and invoke your right to an attorney.
  • A Flag or administrative hold will be placed on the subject of the investigation.  This hold prevents the member from PCSing, going TDY, or separating from active duty.
  • Preferral of Charges – Legal or your commander will decide whether sufficient evidence exists to warrant charges. If so, charges are drafted and there will be a “preferral” of those charges against the service member. 
  • Article 32 Hearing – This is similar to a civilian grand jury. A Preliminary Hearing Officer will determine if the charges merit a court-martial.
  • Referral of Charges – Based on the Preliminary Hearing Officer’s recommendation, the Convening Authority will decide whether refer the charges to a court-martial.
  • Court-Martial Trial – If referred, the case proceeds to a military trial where guilt or innocence is determined. Several types of courts-martial exist.
  • Post-Trial – The conviction can be appealed (if necessary). Punishments may require further review and processing. Discharge conditions are finalized.

 

What to Do When Under Investigation: Key Takeaways

If you find yourself the subject of a military criminal investigation, here are some important tips:

  • Consult with counsel ASAP – Don’t delay seeking qualified legal advice
  • Invoke your Art. 31 rights – Don’t answer questions without an attorney present
  • Be cooperative within limits – Comply with orders but don’t jeopardize your case by talking about it to anyone expect a lawyer 
  • Manage expectations – The process involves many players and can take over a year
  • Document thoroughly – Keep detailed records of all proceedings and communications
  • Take care of yourself – Seek emotional support during this challenging time and maintain physical fitness 

Handling an investigation properly from the outset can have huge implications for its resolution. Stay strong and be ready to defend yourself with skillful legal guidance.

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