Frequently Asked Questions
Do I need a lawyer?
One of the most frequent questions we get asked by prospective clients is "Do I need a lawyer?" The answer is "it depends." Unlike many firms, we are honest in our assessment and answer. If your situation does not require attorney representation, we will tell you that, and we won't take your money. One of our founding principles is we will not charge clients for representation they don't need. Because all of our initial consultations are free, we can answer that question for you without the stress of worrying about paying a fee for no reason.
The flip side is, if your situation does require a lawyer, we will tell you that and why. Call us now to discuss.
What is a Court-Martial?
A court martial is a trial in the military. A court martial follows military rules of evidence and unique military rules of procedure. There is a judge, court-reporter, and based on your choice, possibly a jury of officers and senior non-commissioned officers. Military prosecutors - usually at least two for every trial - bring the government's case against a service member. A court martial can adjudge punishment including confinement, reduction in rank, forfeiture of pay and allowances, and a discharge from the military.
Unlike on television, the proceedings can be dry and full of unique legal jargon and terms. Unless you are fully prepared, it can be overwhelming, and you need an experienced attorney by your side to get you through the proceedings.
What is a Preliminary Article 32 Hearing?
If you are charged with an offense, one of the first steps in the case is that the Government must pass the court martial charges through a Preliminary Hearing under Article 32 of the Uniform Code of Military Justice. You are entitled to be represented by counsel, and your Defense counsel has the opportunity to challenge or cross-exam the Government's evidence. Unless your Defense attorney has a very specific reason for waiving this hearing, you should go through the process and make the Government meet its burden.
The Government must prove that it has reasonable grounds for the court martial charges, jurisdiction over you, the service member, and that the case deserves to go to a General Court Martial. If the Government cannot show these things, the case must be returned to a lower level commander.
Having a plan of action for your case, starting at the investigative phase is crucial. Find the military attorney who can take charge of your case.
Why should I hire civilian counsel for a military Courts-Martial?
Every service member facing a court martial is given a free lawyer from their branch's defense service. This attorney is assigned by their supervisor to your case, sometimes based on their experience with your type of case, or often because they were next in the rotation to take a client. They wear the uniform and are properly licensed attorneys.
However, recent statistics have shown that uniformed military lawyers have conducted an average of 1.7 contested trials during their time as defense counsel and/or prosecutors. If you are lucky, your military defense counsel may have two or three full trials under their belt by the time they take your case.
Having an attorney who has practiced for decades in military courts, who has tried hundreds of cases, and who knows the rules and can capitalized on the inexperience of the military prosecutor is an invaluable asset to your team. Having an attorney who does not wear the uniform, who is not afraid to stand up for you to the judge, and to challenge the military prosecutors, will make a difference. The attorneys at Owens & Kurz, LLC have all worn the uniform at one time or another, and know what it feels like to be in the system facing a senior officer, and the immeasurable difference it makes in a court martial when a senior civilian lawyer not beholden to the system steps in to advocate for you. We are not out-ranked by anyone in the room, nor are we subject to any chain of command or performance evaluation. Our only job is to fight for you and your case.
False Accusations of Sexual Assault in the Military
The military has spent millions upon millions of dollars and decades of time and effort for alleged victims of sexual assault. Victims receive their own specialized attorney, medical and counseling support services. The military has not given even a fraction of those same resources towards service members accused of sexual assault.
Some accusers know the system and they know they can benefit from making an allegation. While there are many legitimate claims of sexual assault and rape, not all of them are. Yet, fighting a false allegation may seem insurmountable given all the cards that are stacked against you.
If you are accused of sexual assault, you need an experienced attorney to fight for you through the investigation and through trial and court martial.
Should I give a statement to Law Enforcement (Army CID, Navy/Marine NCIS, Air Force OSI or the Military Police)?
Unlike what law enforcement may say, they are not there to help you, advocate to the chain of command for you, or even to hear your side of the story. They are not impartial fact-gatherers. A military investigator's job is to find a crime and charge or "title" you with that offense. When a crime is reported, they have no discretion as to whether they investigate or not, or to drop charges. Every report to military law enforcement will result in an investigation sent to a prosecutor.
Every service member, indeed, every person in America has rights guaranteed to them under the Constitution. Declining to give a statement to law enforcement will not harm you, it will not be held against you. Any statement given to law enforcement, no matter how well meaning, will be used against you, and will be detrimental to your case in the long run.
An attorney can stand between you and repeated requests for statements and evidence from law enforcement. Unlike military defense counsel, we represent service members early-on through investigation. We take cases before charges are levied against you. Having an attorney proactively is the best way to prevent a catastrophic outcome.
No matter how tempting it is to try to tell your side of events early on, you simply do not know enough of the facts and allegations to respond. Law enforcement will not help you. The Constitution guarantees you a Fifth Amendment right to silence and a Sixth Amendment right to counsel. These rights can never be held against you. Use them.
Should I consent to giving my phone or computer to military law enforcement?
Our mobile phones are our constant companions, and military investigators know that. Having worked with digital forensic experts for years, our attorneys know that phone contain data and links to our personal information that most people are unaware of. What may seem like a simple request to look at your phone or for your passcode by law enforcement, is usually part of a coordinated campaign to gather evidence against you.
Do not give your consent to let an investigator look at your phone or computers, or to conduct a search of any kind. Despite what law enforcement may say, refusal to give consent cannot be held against you.
However, if you are served with a search warrant, you must obey it. Call Owens & Kurz LLC immediately if you are served with a warrant.
What do I do if I am under Army Regulation 15-6, Naval JAGMAN or Air Force Legal military investigation?
When a service member is under investigation, the command is laying the groundwork for discipline or prosecution at court martial. A service member has rights under every investigatory service regulation. Let the attorneys at Owens and Kurz LLC assist you in knowing what your rights are, what documents you are entitled to, what should go into an appropriate response, and when the deadlines are.
What happens when my Security Clearance is suspended or revoked?
Nearly every job as a service member requires a security clearance, and many jobs as a civilian within the Department of Defense also require a security clearance. Financial trouble, drugs, unreported contact with foreign nationals - even just an accusation - can lead to suspension and eventually revocation of your security clearance. This may mean an end to your career.
You have rights and can submit document, statements and evidence that can lift your suspension or get your clearance back, but you need to respond quickly and within the required time limits. An experienced counsel can help you know what response the Department of Defense Consolidated Adjudication Facility is looking for.
Military Administrative Separations
Administrative separation is not as serious as discharge at court martial, but it can have long term consequences later in life. If your chain of command is telling you that you are going to get an under other than honorable conditions discharge, or even a general under honorable conditions, you need to speak to an attorney, no matter how much you may want to get out of the military as quickly as possible.
If you are enlisted and the military wants to administratively separate you, you have rights. Most military defense counsel offices do not even have an attorney ready to speak to your during your first visit - you may just be shown a video or just given a sheet of paper to read. Those things cannot take the place of a one-on-one consultation that looks at the specific facts of your case and your life goals. A civilian attorney is not restricted by the military defense office rules, and at Owens and Kurz LLC, you communicate directly with your attorney, not through a paralegal. We can make a difference in your administrative separation proceedings right from the start, not only during the hearing phase.
Military Boards of Inquiry
If you are an officer, the military can separate you through an administrative separation proceeding called a Boards of Inquiry. BOIs are different from enlisted separation proceedings, and carry a significant number of rights, decisions and elections.
Know your rights, protect your career. Call Owens and Kurz for your free consultation. Let us listen to your situation and fight for your best interests - not only for today but for your future.