Military Law Enforcement Investigations: What should I expect?
When service members find themselves under military law enforcement investigation they want to know what to expect.
Q: I just found out I’m under investigation. What should I do first?
A: Get legal advice immediately. As soon as a service member finds out that an investigation has been initiated, they need legal representation. Service members are experts in many fields, but they’re not experts in the military justice system, and they’re also not going to be objective about that system. Even if it’s just a command investigation—before talking with an investigating officer—talk with an attorney before answering any questions.
Q: How long does a military investigation usually take?
A: It varies significantly. Years ago, a typical investigation might have taken about six months. Nowadays, it’s more like 18 months to two years. Part of that is because the process has become more complicated, with more layers of bureaucracy. Some of the reforms to the military justice system require additional bureaucratic steps, and decisions are now often made by committee rather than by individual prosecutors. Attorney Peter Kageleiry, Jr. addressed this in a recent podcast.
Q: What happens if the Office of Special Trial Counsel declines to prosecute my case?
A: If the Office of Special Trial Counsel declines to prosecute, the case goes back to the chain of command. In many cases, the chain of command feels compelled to take adverse administrative actions even when career prosecutors have determined the case isn’t worthy of prosecution. That means you could still face a board of inquiry (for officers) or an adverse administrative separation proceeding (for enlisted members) even if criminal charges are never filed.
Q: Should I hire a civilian attorney, or is the free military attorney good enough?
A: Military defense counsel are often excellent young attorneys, but there are important differences. A civilian attorney works for you—not for a system. Military counsel go to work every day with standard military meetings, are handed case files by their bosses, and are told what their priorities are. They tend to be overwhelmed by their caseload and may be nervous during their first few trials. A civilian attorney with decades of experience can dedicate the necessary time to your case, won’t be intimidated by a complicated case or government overreach, and will be confident going into trial. Experience, knowledge, and confidence matter.
