The information contained on this website is designed to educate and inform service members and their families on their personal legal affairs. Nothing contained in the website is a substitute for the competent advice of a licensed attorney and military defense counsel. Service members seeking legal advice about a potential adverse action should consult the staff of the nearest installation office of military defense counsel.
You can seek assistance from military defense counsel if you're facing discharge or criminal prosecution by the military. As a service member, you have the right to be represented at your court-martial. Military defense counsel are certified judge advocates who provide independent legal representation and confidential legal advice for service members suspected of an offense or facing adverse administrative actions.
Your rights with legal counsel
Military service members have a right to counsel through all stages of a court-martial. Here are your rights through the process:
- You'll be provided with free, independent military defense.
- Civilian counsel can represent you if you want, but you have to pay for it yourself.
- Post-trial counsel is provided through the appeals process, potentially to the U.S. Supreme Court.
- Your military defense isn't attached to your command, so there can't be any appearance of command influence or conflict of interest. They represent you and not your command, and the office is physically separate from the installation legal assistance office.
- You can ask for specific military counsel who will assist if reasonably available.
- You can be represented by counsel at the magistrate hearing when a determination is made about continued pretrial confinement.
- Representation is provided at the Article 32 investigation.
- You'll receive counsel for all court-martial sessions.
- You're assured complete confidentiality. Nothing you say to counsel will be shared with anyone else without your permission.
Each of the service branches has a different name for the defense counsel offices:
- Army — United States Army Trial Defense Service
- Marine Corps and Navy — The Defense Service Office
- Air Force — Area Defense Counsel
What are the defense counsel options?
Authorized defense counsel representation can include, but isn't limited to, the following areas:
- Article 32 pretrial investigations — Article 32 of the Uniform Code of Military Justice states that the charges must be subjected to pretrial investigation before they may be referred to a general court-martial.
- Pretrial confinement hearings — The hearings review whether the military has sufficient cause to believe you committed an offense under the code and if your continued confinement is necessary.
- Article 15 nonjudicial punishment — Nonjudicial punishment means the limited punishments your commander can administer for minor offenses. The Army and Air Force call these proceedings "Article 15"; the Navy and Coast Guard call them "captain's mast or mast"; and the Marine Corps calls the process "office hours."
- Investigations — Military defense counsel can advise you if you're the subject of an investigation, including accident, safety, criminal and line-of-duty investigations.
- Administrative separation proceedings — You can meet with military defense counsel for legal advice and possible representation if your commander initiated a separation action against you for involuntary discharge proceedings and you're eligible for a separation board hearing.
- Administrative demotion of enlisted service members and officer grade determinations — A demotion or officer grade determination is an administrative decision to determine appropriate retirement grade, retirement pay or other separation pay. A lower grade determination isn't punitive, even though it may adversely affect you.
- Letters of reprimand, unfavorable information files and related matters — Your commander may consider administrative actions instead of nonjudicial punishment. Such actions include admonition, reprimand, criticism, censure, reproach or rebuke.
- Boards of officers, faculty boards, flying evaluation boards and medical officer decredentialing boards — A board may convene if your performance in a rated duty is questioned. The boards are administrative, fact-finding proceedings conducted to ensure information relevant to your qualification is reviewed and discussed in a fair and impartial manner.
- Denial or revocation of a security clearance — Defense counsels can provide assistance at your appeals hearing if you were denied a security clearance or had your clearance revoked.
- Summary court-martial — Trial by summary court-martial is a simplified procedure for resolving charges involving minor incidents of misconduct. The summary court-martial consists of one officer who is typically a judge advocate (a military attorney), depending on service policies and practice. You're not entitled to be represented by a military attorney, but you can hire a civilian lawyer at your own expense. In rare cases, military demand prevents the reasonable availability of civilian counsel. Air Force policy allows military counsel to represent all accused at summary courts-martial. You must consent to trial at a summary court-martial and may object to trial by summary court-martial, in which case the convening authority determines further action. The maximum punishment a summary court-martial can award is confinement for 30 days, loss of two-thirds pay for one month and reduction to the lowest pay grade (E-1).
- Special court-martial — A special court-martial is the intermediate court level. It consists of a military judge, trial counsel, defense counsel, and a minimum of three officers sitting as a panel of court members or jury. Enlisted accused may ask for a court made up of at least one-third enlisted personnel. You may also ask for a trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than one year confinement (or less if the offenses have a lower maximum), loss of two-third's basic pay per month for one year, a bad conduct discharge (for enlisted personnel) and other lesser punishments. An officer accused in a special court-martial can't be confined or dismissed from the service.
- General court-martial — A general court-martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel and at least five court members. Enlisted accused may ask for a court made up of at least one-third enlisted personnel. You may ask for a trial by judge alone, except in cases where the death sentence is possible punishment. The maximum punishment is established for each offense under the Manual for Courts-Martial and may include death (for certain offenses), confinement, dishonorable or bad-conduct discharge for enlisted personnel, dismissal for officers or several other lesser forms of punishment. A pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted before a case can be referred to a general court-martial, unless waived by the accused.
Limitations and restrictions on your representation
There are specific areas in which military defense counsel may not be able to provide direct assistance. This may include, but aren't limited to, the following:
- Civil legal assistance matters — These are claims against the government or legal matters involving your privately owned business. Military defense counsel aren't required to provide legal assistance services in these cases, but they can coordinate with the nearest legal assistance office or make other suitable arrangements. Use the Armed Forces Legal Assistance Locator to find the nearest legal assistance office.
- Civilian criminal matters — Military defense counsel can't represent you in a civilian court if you have a nonmilitary criminal case, such as driving under the influence. You need a civilian attorney to represent you in these cases. Military defense counsel can only advise you about the impact a civilian conviction could have on your military career and represent you in related military personnel actions.
- Preparation of Inspector General, Military Equal Opportunity or congressional complaints and similar matters — Military defense counsel can't help a service member prepare these types of complaints.
- Preparation of applications before service boards for correction of military records or on board for correction of Naval records — Military defense counsel representation is prohibited, but you may be advised of basic procedures to correct military records.
How to contact defense counsels
Find the contact information for your nearest defense counsel in your installation telephone directory. Your installation trial defense service office, defense services office or area defense counsel office may have a local website with helpful information. These defense legal offices are separate from your local legal assistance office.