Military Court-Martial Trial Processing – Military Defense Lawyer

Military Defense Lawyer (Former JAG Attorney) News: Military Court-Martial Trial Processing Explained

Recently, military court-martial trial cases have been taking a longer time to process than in years past. We have received a lot of questions about this. So, here is a basic explanation of military court-martial processing, using a general court-martial trial as an example.

In the military justice system, there are three types of court-martial trials, as further explained on various pages of our website. These are:

1. Summary Court-Martial Trial (SCM). The least serious of the three. This is rarely used because of the significant sentencing/punishment limitations, and the limitations on procedural rights. A “conviction” in a summary court-martial is not considered a federal criminal conviction, because the accused military member does not have all of the rights he/she would have in the two more serious types of court-martial. We consider a summary court-martial to be more like an administrative action with more punishment options than other administrative actions.

2. Special Court-Martial Trial (SPCM). In the military justice system, offenses are not classified as “misdemeanor or felony.” That said, you could think of a special court-martial trial akin to a misdemeanor trial court in the civilian criminal justice system. A conviction in a special court-martial is considered to be a federal criminal conviction, so this is a federal criminal trial court. That said, if there is a conviction in a special court-martial trial, the available punishments are limited similar to civilian misdemeanor trials. This includes jail sentences for special court-martial conviction that cannot exceed one year.

3. General Court-Martial Trial (GCM). Again, in the military justice system, offenses are not classified as “misdemeanor or felony.” That said, you could think of a general court-martial trial akin to a felony trial court in the civilian criminal justice system. A conviction in a general court-martial is considered to be a federal criminal conviction, so this is a federal criminal trial court. If there is a conviction in a general court-martial trial, the only sentence limitation is that authorized by the specific criminal allegations. So, depending on the alleged offenses and convictions, GCM sentences could include Dishonorable Discharge and years in prison, all the way up to life in prison or the death penalty (for murder).

In December 2023, the military justice changed, and the Office of Special Trial Counsel (OSTC) was stood up in all the service branches. This was a new prosecution office construct and the biggest change was that authority to make court-martial decisions was largely taken from commanders and is now in the hands of OSTC. That means JAGs no longer simply advise commanders, prosecuting JAGs now make the initial decision about whether or not to proceed to trial by court-martial. Technically, OSTC was stood up to handle specific “covered offenses.” Those were:

– Wrongful broadcast/distribution of intimate visual images (Art. 117a)
– Murder (Art. 118)
– Manslaughter (Art. 119)
– Death/injury of an unborn child (Art. 119a)
– Rape and sexual assault (Art. 120)
– Mails: Deposit of obscene matter (Art. 120a)
– Rape and sexual assault of a child (Art. 120b)
– Other sexual misconduct (Art. 120c)
– Kidnapping (Art. 125)
– Domestic violence (Art. 128b)
– Stalking (Art. 130)
– Retaliation (Art. 132)
– Child pornography (Art. 134)
– Sexual harassment (Art. 134, effective 1 January 2025)

However, OSTC was also given the option of taking on cases alleging other military offenses beyond the “covered offenses.” And, in most circumstances, OSTC did just that. In most military cases, then, if the allegations are not one of the “covered offenses,” but are seriousness enough to be possibly handled by a general court-martial (GCM) trial, OSTC will take the case and make the initial disposition decision.

Why does it matter that OSTC has now taken over the most serious military cases and offenses? Because OSTC is undermanned for the cases they have taken on. As a result, military court-martial case processing has been considerably slowed. Now, the investigation phase of a military case before charging decisions are even made can take a year a more to be completed. This may not happen in every case, but it happens with regularity. Therefore, a military member could be notified he/she is under investigation, and not face a court-martial trial until a couple years later. That’s how slow it has become! It is, therefore, very important for military members who are facing a possible court-martial trial to be prepared for a very long process ahead.

In the military, a general court-martial trial case begins with the investigation phase. This is the phase of the case in which the allegation(s) are being investigated by military law enforcement, such as Space Force and Air Force OSI, Army CID, Navy and Marine Corps NCIS, and Coast Guard CGIS. OSTC is now involved in this investigation process, and analyzes military cases in this phase.

AFter the investigation phase is complete, and the investigative report is published to OSTC and/or command, if OSTC and/or military authorities determine they will seek a general court-martial trial in the case, here is what a general explanation of military court-martial trial processing in a general court-martial case:

– The military member is initially charged. This is called “preferral” of court-martial charges.
– The case is then considered in an Article 32 hearing in which an appointed Preliminary Hearing Officer (PHO) makes non-binding recommendations about the case.
– The OSTC and/or military authorities then decide whether or not they are going to proceed to trial by general court-martial (GCM). If they do decide to proceed to a GCM…
– The military charges that were initially “preferred” are now “referred” to trial by general court-martial. This is called the “referral process.”
– After charges are “referred” to trial by general court-martial, a military trial judge is assigned and a case schedule is established.

– The general court-martial trial case schedule sets deadlines for certain milestones in the case, and for hearings and trial. Some of the scheduled events are…
– The arraignment of the accused military member.
– Deadlines for providing discovery.
– Deadlines for requesting and identifying witnesses.
– Deadlines for requesting and identifying experts.
– Deadlines to file pretrial motions.
– Scheduling the motion hearing.
– Deadlines for the defense to give notice of expected pleas, forum decision, and certain defenses.
– Deadlines for exchange of final witness lists, exhibit lists, security plan, and trial plan.
– Deadlines for proposed findings instructions.
– Deadlines for proposed voir dire questions.
– Scheduling the trial dates.

– After the general court-martial findings phase has concluded. If there was a conviction on any alleged offense, the case immediately proceeds into court-martial sentencing. Once the sentence is determined, there are various post-trial rights for…
– Post-trial Clemency.
– Post-Trial Appeal to the military branch TJAG or the military appellate courts. The military appellate court system is…

– The service branch appellate courts. This includes the Space Force and Air Force Court of Criminal Appeals (AFCCA), the Army Court of Criminal Appeals (ACCA), the Navy and Marine Corps Court of Criminal Appeals (NMCCA), and the Coast Guard Court of Criminal Appeals (CGCCA).

As you can see, there are many phases and steps of a military general court-martial trial case and, therefore, military court-martial trial processing can take a very long time.

For more information about the military justice system, please see the main pages of our site. This includes our military defense practice areas at: Military Defense Lawyer Practice Areas

We offer free consultations for a case you may be involved in. Just call us.

An experienced and aggressive defense attorney is absolutely vital in military court-martial cases.

Civilian court-martial defense attorney Richard V. Stevens is a civilian criminal defense attorney and former active duty military JAG lawyer who exclusively practices military law and defends military members stationed around the world who are facing military trials, discipline and investigations. If you’re facing a military case like this, don’t hesitate to seek the legal help you’re going to need. For a free initial case consultation, please contact us.

No attorney can guarantee the outcome you seek in your military case. What we can promise is that we will apply our decades of experience to the defense of your military case. This includes our extensive experience in military law, military regulations, military investigations, military disciplinary actions, military adverse actions, and/or military court-martial trials and cases.

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Blog postscript: I (attorney Richard V. Stevens) am a former active duty military lawyer (JAG). My perspectives and advice, therefore, are based upon my experience as a military defense lawyer and as a civilian criminal defense lawyer practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens for a free consultation. These military defense law offices are located in the Washington DC, Northern Virginia, Maryland, National Capital Region (NCR), but the military defense representation is worldwide – when necessary, the attorneys travel to wherever the military client is stationed around the world.