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When to hire a military criminal defense lawyer: During or before the preliminary inquiry?

Under the Uniform Code of Military Justice (UCMJ) commanders are responsible for maintaining order and discipline within their ranks. When a commander is notified that a servicemember under his/her command may have committed a criminal act, there are steps that must be followed to determine how to proceed.

This blog post will discuss the first step in the process - the "preliminary inquiry" into the allegations.

Commanding officers may be notified of a possible misconduct in any number of ways, including by military or civilian law enforcement, another service member, or a family member. Depending on the alleged misconduct, the commander may decide to initiate a preliminary inquiry under Rule 303 of the Rules for Courts-Martial.

Commanders' options for proceeding with the inquiry

At the initial stage of a RCM 303 inquiry, commanders have several options about how to proceed. Commanders may conduct the investigation themselves; appoint another officer under their command; or turn the inquiry over to a military investigation unit. For more serious criminal allegations, commanders often defer to trained criminal investigators.

Commanders' options after the preliminary inquiry

Upon completion of the preliminary hearing, the commander will review the report and decide what step to take as a result of the findings. Options include:

•· Dismissing the allegations with no further action

•· Administrative action, ranging from a reprimand and a negative performance evaluation all the way up to an administrative hearing to discharge the servicemember

•· Non-judicial punishment under Article 15 of the UCMJ

•· Preferral of criminal charges to begin the court martial process

Your right to hire legal counsel

Military defense counsel will normally not provide much assistance to a service member until after he or she is charged or notified of separation. On the other hand, a service member can always hire civilian attorney. A civilian attorney can work with the client to prepare a defense even before charges are preferred. Sometimes, depending on the circumstances, a civilian attorney will also communicate with investigators to explain what actually occurred, as opposed to what the investigators suspect occurred. It is important to hire an experienced military attorney who understands this process and how to protect your future and ensure the best possible outcome.

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