The military’s court-martial process is now on full display. Enter Bowe Bergdahl, a soldier who was part of a prisoner exchange. The central question is his loyalty to the United States. For the public, it is an opportunity to see the military process from start-to-finish.
For a service member facing court-martial, this is an opportunity to use the Bergdahl case as a textbook to parts of the court-martial process that you will also face. Here is what a military member facing court-martial can learn about the process:
- The Act. The military courtroom’s door is opened for an incident, a fact that occurred to be explored in truth. Whether the person committed the act or not- whether they intended that act to occur, something allegedly happened to get the court-martial system moving. For Bowe Bergdahl he was in Afghanistan serving as uniformed military member in a hostile territory. The act was his disappearance. Years later the question is going to be asked–how did the act occur and why?
- The Investigation. Most folks are familiar with the county and city law enforcement–either sheriff or police. On a federal level almost everyone has heard of the FBI, CIA, or Secret Service. Sergeant Bowe Bergdahl is a solider in the United States Army. Each military branch has its own investigative force. The Army has CID, the Navy and Marine Corp has NCIS and the Air Force has OSI. Depending on the location of the act in question, a combination of local investigators for the city, state, and federal branch can work in conjunction with the respective service’s investigative branch. However, whether the service branch’s investigative agency is the primary or secondary investigative agency, they will be responsible for publishing an investigative report that will be forward to the accused’s commander and the judge advocate’s office that will ultimately be responsible for making an initial brief to the accused’s commander and discovering the applicable charges that would be brought against the accused.
- Preferral. In order for a criminal charge to move forward in the military justice system another military member must suspect that person of a crime. Generally the accused’s commander is charged with the responsibility of bringing forth the charge. He is given the report of investigation from the respective service agency and makes a decision as to whether or not they suspect his service member of a crime. If they do they prefer a charge or charges. The judge advocate’s office prepares a charge sheet and the commander formally reads the charges to the accused. The JAG, Commander, and Accused sign the official charge Sheet. Once preferral of charges occurs the accused is now entitled to detailed military defense counsel and may hire a civilian attorney at their own expense.
- Referral. Referral of charges occurs when the convening authority determines that there is a reasonable suspicion to move forward to a court martial or that some other form of punishment or disposition is necessary. In other words, the buck stops with them.
- Court-Martial. At court-martial the accused will see every part of what would look like a normal civilian trial with some very significant and important differences. It is important that your detailed military lawyer or your civilian lawyer explain this process to you and make sure that you are prepared to fight the fight.