When Do You Need a Civilian Lawyer for a Court-Martial?

Although minor infractions are usually handled by a servicemember’s senior officer, more serious offenses get passed up the chain of command. Criminal charges are referred to the military court. The purpose of the UCMJ is to ensure justice while keeping the administration of punishment within the service.

Servicemembers who need legal assistance during a court-martial receive an attorney from the Judge Advocate General (JAG) office. They also have the right to hire a private civilian attorney if they wish.

Jurisdiction depends on where and how the alleged offense occurred. On-base matters are typically under the UCMJ, while off-base crimes may proceed in civilian court, sometimes alongside military action. Servicemembers are entitled to a JAG defense attorney at court-martial, but can hire a private civilian lawyer for additional or specialized representation.

To hire a military law lawyer, contact an experienced military defense attorney in your state, confirm they handle UCMJ and court-martial matters (and, if needed, civilian or international cases), and coordinate with your assigned JAG counsel to ensure a unified defense strategy.

This article examines military law and explains when a JAG defense attorney is enough and when to consider hiring a civilian lawyer.

UCMJ and Military Law

Military law enforced through the UCMJ resembles some parts of civilian law, but contains legal aspects unique to military service. There are criminal offenses, such as murder, robbery, and theft. There are also military crimes like desertion, insubordination, and mutiny.

The UCMJ ensures legal accountability and fairness within the ranks and across all branches of the military. The same justice system applies from enlistees in the Coast Guard to the Commandant of the Marines. It also ensures that military personnel receive fair treatment with due consideration for their military service and the circumstances of the case. The UCMJ provides a method for the immediate trial of military members, rather than needing to travel to and from other states or nations for repeated trials.

The UCMJ has jurisdiction over any servicemember on active duty and active reserve members while on duty. It applies to National Guard members under Title 10 orders (during federal emergencies), although state National Guard units are subject to their state’s military regulations.

UCMJ and Civilian Law

If a service member breaks the law on a military base, the military justice system (UCMJ) can handle it.  Regular federal courts, and even state courts, can handle the case as well. This depends on the particular base and the agreements in place. In some situations, a federal court can use civilian laws to prosecute crimes that happen on base, not just military rules.

If a servicemember commits a crime off base, they can be charged under the UCMJ and state law. Whether a military case is tried in a civilian court depends on who takes jurisdiction of the case. The military will typically retain jurisdiction if it is in the best interest of the servicemember or the armed forces to do so, but jurisdiction is also governed by intergovernmental agreements, SOFAs (overseas), and prosecutorial discretion.

A servicemember charged with a crime in civilian court cannot have a JAG attorney. That is reserved for charges they face in military court. They will need a civilian attorney to represent them on the state charges.

When You Need a Military Lawyer

A court-martial can mean the end of your military career. If the crime occurred on base or violated the UCMJ, you need a military defense lawyer who understands the regulations. Unlike a civilian court, the military has a wide range of other punishments, some of which apply even if you’re found not guilty. Some punishments depend on your rank. A commanding officer can impose these punishments at their discretion without a formal hearing.

Servicemembers have the right to waive non-judicial punishments (NJPs or “Article 15s”) and have a formal court-martial. Common NJPs include:

• Restriction to certain areas or limitation of leave
• Extra duties
• Forfeiture of pay
• Confinement on base or aboard ship
• Probation or suspension of punishment
• Reduction of rank

Until 2019, the Navy still allowed ship captains to sentence lower ranks to “three days on bread and water” if the defendant preferred it to extra duties. Experienced crewmen advised newer arrivals that extra duty was preferable to the punishment ration.

Judicial punishments follow a formal court-martial. Defendants have a right to counsel and to present evidence. Convicted defendants may face:

• Imprisonment in a military facility
• Permanent demotion
• Loss of all pay and benefits, including pension
• Punitive discharge or dismissal (bad conduct or dishonorable discharge)

The UCMJ still retains the death penalty for many offenses, although some only apply during wartime. The last military execution took place in 1961.

An administrative separation is not a court-martial. These discharges occur when a servicemember leaves military service without a formal court-martial. Administrative separation has less of an impact on the person’s post-service career than a full court-martial, but may have serious repercussions. Administrative separation can be:

• Honorable
• General (Under honorable conditions)
• Under Other than Honorable Conditions

An Other Than Honorable discharge may be entitled to a board hearing and legal representation.

When You Need a Civilian Attorney

If a servicemember commits a crime off base, their commanding officer may refer them to the state for trial. This often happens for serious crimes like murder, sexual assault, robbery, and drug trafficking. Since these crimes impact the community where they occurred, the civilian authorities have a greater stake in prosecuting them.

If you’re facing charges in a civilian criminal court, you may need a civilian criminal defense attorney. Since a JAG lawyer cannot represent you in a state court, you will need a civilian defense counsel on your side during a criminal case.

JAG attorneys concentrate on military law. Although all attorneys have passed a state bar exam, JAG lawyers have spent their legal careers studying military rules and regulations. Military defense attorneys work for the U.S. government and generally are not permitted to represent you in state court. Limited exceptions may be allowed for family court matters with command approval and state court permission.

If you believe you will not get unbiased representation from a military attorney, you can request a civilian military lawyer at a court martial. You will need to pay for a private attorney yourself. If your situation involves any violation of your civil rights or similar legal issues, you should consider outside counsel, since the case may involve matters that a military attorney is not familiar with.

Special Considerations: International Law

Servicemembers in overseas posts run the risk of violating another country’s laws. In these cases, the host nation may want to try the servicemember in their legal system. Depending on America’s relationship with the host nation and the type of crime, the servicemember could be in a very difficult situation.

Although the Judge Advocate General will provide legal services, it may be best to retain outside counsel, ideally one with trial experience in international law. Legal questions between nations can get sticky, especially when relations are frosty.

This is not the same as violation of international law. International law falls under the ICC and the Geneva and Hague Conventions. It’s unlikely an individual soldier would run afoul of the ICC, even during wartime, but not impossible. War crimes and crimes against humanity are usually assessed against leaders of nations and commanders, not line soldiers.

Get Legal Advice From a Military Defense Attorney

Whether you’re Air Force, Navy, Army, Marines, or another branch of service, it’s important to have an attorney who understands the courts and the UCMJ. Call a military defense lawyer in your state and protect your military record and career. Having an expert in legal matters on your side can make a significant difference.

FindLaw’s directory of military defense attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals in your area. Your search results will also show ratings and contact information.