We have had several GOMOR responses and separation boards for service members accused of domestic violence. The military often limits court-martial cases to sexual assault.
So the services use adverse administrative actions for Article 128b accusations. These actions include non-judicial punishment, GOMORs, and AdSep.
They can also include Boards of Inquiry. You might think an Article 15, Captain’s Mast, or a GOMOR is the limit of punishment. This can happen after domestic violence claims. When an investigation ends, service members may face an Article 15 for Article 128b. They may also receive a GOMOR for Article 128b. This is common when investigators find a violation occurred. It is also common when evidence is too weak for a court-martial. However, the services have policies that require mandatory separation processing to founded acts of domestic violence. As an example, “g. Paragraph 1004(f) of the MARCORSEPMAN requires separation processing for all Marines. This includes officers. It applies when they are found to have committed domestic abuse. It also applies to intimate partner abuse. It also applies to immediate family member abuse. Although the triggering language is vague, “determined to have committed,” means a “substantiated” allegation.” This means should a command investigation find a Servicemember has violated UCMJ Article 128b Domestic Violence, the command must begin mandatory separation processing.

Mandatory separation processing is not the same as mandatory separation. This means the command must start trying to use AdSep Article 128b. This would separate the service member from the military. The service member has certain rights they can retain prior to separation. As an example, the command may seek an Other Than Honorable discharge. The service member has the right to defend themselves. They may do so at an administrative separation board for Article 128b or at a Board of Inquiry. They also have help from a detailed attorney.

In many cases, command investigations found the accused may have committed domestic violence. However, command investigators are not experienced investigators, and both investigation reports were greatly flawed. We’ve won Article 128b Boards by focusing on flaws in the investigation reports. We also highlighted the accused’s excellent character. Both board panels found that the officers did not commit Article 128b Domestic Violence.

Factors that increase risk to the accused.

Domestic Violence charges often stem from a 911 call. When the police arrive, the parties involved often give statements. This can be a mistake for those who are accused and often for the alleged victim who might have called 911. If, during an argument, the alleged victim called 911 but did not mean to accuse their spouse. Their statement may still seem like a domestic violence claim. Also, the accused may think they are telling their side of the story. But instead, they may confirm facts that help investigators build a case against them. Individuals involved in altercations have the right to remain silent. The accused should always retain their right to speak to an attorney before making any statements to anyone.

When the investigation starts, it is best for the accused to already have an attorney. The attorney can guide them through it. Retaining an attorney can protect you from making things worse in your interactions with the command, investigators, or witnesses.

What to do in the initial phases of administrative punishment for Article 128b Domestic Violence

The command will move forward with an administrative punishment. This will happen before mandatory separation proceedings begin. This applies when an investigation finds the accused likely committed Article 128b Domestic Violence. However, if the accused is a field grade officer or senior NCO, they may respond to the findings. They may submit a legal analysis before the command takes administrative action. When the investigation is complete, an experienced military attorney can analyze the investigation findings and respond to the command. The response can point out legal insufficiency, flaws, or bias that may be present in the report.

After the investigation ends, the command will decide whether to take administrative action. This may include an AdSep for Article 128b. In many cases, the command issues a GOMOR for 128b or an Article 15 for 128b. This happens before separation proceedings are announced.  The service member may make a statement at Captain’s Mast for Article 128b. They may also make a statement at an Article 15 hearing for Article 128b. They may also respond to a GOMOR for Article 128b. These adverse actions, like a GOMOR Article for 128b, are how the command administratively punishes the service member. Commanders expect service members to take responsibility for their actions in their statements at these proceedings. To encourage people to file this administrative action locally, service members may feel pressured to accept responsibility. They may do this to appease the commander. Often this is a mistake. To take responsibility for the action you are essentially admitting guilt. Plus, there may be no local filing opportunity for the action simply because of the nature of the accusation. The government is likely to begin an Administrative separation board for Article 128b anyway. Then the command’s lawyers may use your statements against you in these proceedings. They may use them at an AdSep Board for Article 128b. They may also use them at a Board of Inquiry for Article 128b.

If you are accused of Article 128b Domestic Violence, contact us here. You can also call 757-504-2815 to discuss your case.

Article 128b: What Soldiers Need to Know

If you’re facing a domestic violence investigation or charge under Article 128b of the UCMJ, understanding how this process works — and acting quickly — can make a significant difference in your outcome.

What is Article 128b?

Article 128b was created by the 2016 Military Justice Improvement Act and took effect January 1, 2019. Before it existed, domestic violence was filed as a general assault charge with no dedicated tracking or prosecution pathway. The article specifically covers the use, attempted use, or threatened use of force or violence against a spouse, intimate partner, or immediate family member — including violations of protective orders.

Who decides whether to prosecute?

In 2022, Congress passed the NDAA that established the Office of the Special Trial Counsel (OSTC) — an independent organization of JAG attorneys that handles serious crimes including domestic violence and sexual assault. This removed commanders’ authority to prosecute these offenses directly. The OSTC became fully operational in 2024 and prosecuted 63 Article 128b cases that year.

What happens if OSTC declines to prosecute?

This is where many soldiers get caught off guard. If OSTC declines your case, it does not mean you’re in the clear. Commanders retain a separate requirement to take adverse action if an investigation concludes that misconduct under Article 128b was likely. Typically this means a General Officer Memorandum of Reprimand (GOMOR). Once a GOMOR is placed in your permanent file, Human Resources Command (HRC) will direct your unit to initiate separation proceedings.

What are your rights at separation?

If you have six or more years of service, the Army must give you a board hearing where you can contest the allegations. If you have fewer than six years, you can be separated with a general discharge and no formal opportunity to respond. From the time a GOMOR is issued, it can take anywhere from 90 days to 12 months before you’re notified of a separation board.

A note on evidence — and fairness

Domestic violence cases are inherently complicated. These are relationship-based crimes, often witnessed only by children or no one at all. Families are sometimes reluctant to cooperate. Men can be — and are — victims of domestic violence, though in our experience, military police often default to arresting the male service member regardless of who the actual aggressor is. Family Advocacy records are also difficult to access, which can hamper your ability to build a defense.

The bottom line: get a lawyer now

If you are under investigation — even before any charges are filed — retain a lawyer immediately. The damage from this process often begins during the investigation itself, long before OSTC makes a charging decision. Early legal counsel is your best tool for protecting your career, your record, and your rights.

Speak with a military defense attorney today

If you are under domestic violence investigation, no matter where you are stationed in the world, contact our office at (757) 504-2815 or through our online form to schedule a consultation. Attorney Peter Kageleiry, Jr. and Attorney Timothy Bernadt focus their legal practices exclusively on military court-martial law and related adverse administrative actions. Don’t wait — the earlier you have counsel, the better your options.