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Does an investigation precede a general court-martial?

Readers may be familiar with the acronym AWOL, or absent without leave. An unauthorized absence might subject a military service member to adverse career repercussions, as in today’s story.

Specifically, the U.S. soldier who was part of the prisoner exchange at Guantanamo Bay recently discussed his story in a podcast. The soldier is accused of misbehavior before the enemy and desertion from his Afghanistan post. If his court-martial results in conviction, the soldier could face punishments as severe as life imprisonment. Yet according to the private first-class soldier, he left his base in an attempt to attract the attention of higher up military officials. 

Given the serious nature of the desertion charge, a general court-martial is at issue in this story. That type of proceeding functions as a criminal trial, and is preceded by a commanding officer’s Article 32 investigation of the accused. Notably, although legal training is not required, the Article 32 investigating officer cannot be the accuser under the Uniform Code of Military Justice. Here, the investigating officer recommended a special misdemeanor-level forum.

There are preliminary and subsequent proceedings related to the various types of courts-martial: general, special and summary. As a law firm that focuses on military law, we know that the military’s investigative process can take time, sometimes years before culminating in formal charges. We utilize that time to mount an aggressive defense, perhaps avoiding a court-martial proceeding altogether.

Alternatively, we might negotiate for lesser charges. We also know that military prosecutors might have heavy workloads that result in holes or other weaknesses in their case. Military prosecutors may also be pursuing aggressive charges for political reasons, rather than based on the evidence at hand.

Source: CBS, “Bergdahl Explains Why He Left Military Base,” Dec. 11, 2015

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