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The military's chain of command can impact criminal proceedings

A service member’s safety may sometimes be in the hands of his or her peers, especially during dangerous missions involving a team effort. That reality may necessitate a chain of command, where centralized leadership ensures a unit’s combat readiness and maneuverability. However, a recent article questions whether that approach should be modified for military justice issues.

The Uniform Code of Military Justice defines criminal offenses in the military and governs evidentiary procedures. Yet not every criminal complaint may progress toward a hearing or trial. The reason is the chain of command: A service member’s commander often has the discretion to refer many types of cases for prosecution.

The Department of Defense recently modified that referral system for a specific type of criminal allegation: sexual assault. Instead of junior officers, a senior-level review is now required for all sex assault allegations. The reform was made in response to criticism that junior officers were dismissing valid reports of sexual assault on the basis of friendship with the accused.

As a law firm that focuses on military law, we have seen many instances were a referral unfairly impacted a service member’s claim. However, there are due process protections offered under the UCMJ, and there may be opportunities to right any procedural wrongs. Accordingly, it is important for a service member to consult with an attorney as soon as possible. Military lawyers typically review cases for senior commanders, possibly influencing whether a case is referred to trial. To even the playing field, an accused should also have an experienced attorney as his or her advocate.

Source: Washington Times, “Commanders hold the key to military justice,” John D. Altenburg Jr. and Lisa M. Schenck, June 21, 2016

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