When you learn you may be invested by a military Criminal Investigative
Service, it is important that you know your rights. Most of us have heard
of the “Miranda warnings”, but many service members do not realize they are entitled
to an additional advisement before being questioned about a crime they
are suspected of having committed.
The pre-custodial interrogation advisement of a service member’s
right against self-incrimination arises under Article 31 of the Uniform
Code of Military Justice. Article 31 provides a service member with the
traditional rights to remain silent and advisement that anything the service
member says can be used against them in a court proceeding, but also adds
an additional protection that the service member must be informed of the
nature of the accusation against him before they may be interrogated.
Although this additional protection is indeed a safeguard for the service
member, it is important to keep in mind that even if they do advise you
of all of your rights, ultimately, invoking your right to remain silent
is critical. The investigator of the accusations against you is typically
on a mission to get you to waive your rights, in an effort to illicit
incriminating statements from you, but in a manner that does not appear
compulsory. Verbal and written statements may be used against you, and
likely will be used against you, so the best approach is to remain silent
and to not make a statement, because that is your right. It is true that
you are absolutely innocent until guilt has been proven. Your statements
can only fuel any potential proof the prosecution might have against you.
It is also important to understand that just because your Article 31 rights
were not read to you, an arrest following the interrogation is not invalid
or illegal. The remedy for violations of Article 31 rights is not a disposal
of the case against you; rather, the remedy involves complex evidentiary
issues, so in the event your rights are not read, consult with an attorney.
When you do consult with your attorney, which you ALWAYS should do, be
sure to exercise full disclosure and tell your defense counsel exactly
what happened. Be completely honest. Your defense counsel is YOUR advocate,
and is not conspiring against you with the prosecutor. If your feeling
uneasy about disclosing anything, remember that anything said to your
attorney is protected by the attorney-client privilege. This means we
risk our license if we disclose, so telling
us the truth cannot and will not be used against you. However, your attorney
and their law clerks are the ONLY people you should tell your story to.
Anyone in the service with you, your superiors, your roommate, and your
girlfriend or boyfriend can be called as witnesses against you.
If the accusations against you result in discharge, the Naval Discharge
Review Board does NOT have the authority to automatically upgrade your
discharge after six months, whether it be for VA benefit eligibility,
or to improve civilian or government employment opportunities. They also
cannot revoke any discharge or dismissal.
Under Article 15 of the Uniform Code of Military Justice, military commanders
are afforded a leadership tool to maintain good order and discipline through
the use of
non-judicial punishment (NJP) for minor offenses. Before NJP is imposed, the commander must notify the service member of
the nature of the misconduct of which the service member is being accused,
the evidence supporting the accusation, and the commander’s intent
to proceed with NJP. The next phase involves the commander holding a hearing
at which the service member may be present. At the hearing, the service
member may also have an attorney or other spokesperson present with them.
If this is the situation you are in, get an attorney. The service member
is allowed to present evidence to their commander at this hearing, and
may also request the commander hear testimony from witnesses on the service
member’s behalf. It is important to get an attorney because it
is possible to be found not guilty at this phase of the proceedings! The
commander must be convinced that the service member is actually guilty
of the accusations being made against him.
The bottom lines, if you are a service member being investigated by a Criminal
Investigative Service, keep two very important things in mind:
- You have the right to remain silent, so use it; and
- Get an attorney!
Our team at
Feldmann Nagel Cantafio PLLC is composed of veterans who recognize the tactics employed by military
investigators. Our attorneys are fueled by their own experiences as service
members, and have the skills and knowledge to navigate you through the
process of being investigated by a military Criminal Investigative Service.
To learn more,
visit the attorney profile of Charles Feldmann.