A couple weeks ago, it was announced that Sgt. Bowe Bergdahl’s court martial, which had been previously scheduled to begin this August, has been pushed back to February 2017. This is a long time to wait when your livelihood, reputation, and freedom are on the line, but news reports suggest the delay is due in part to both the government and Bergdahl’s legal defense team needing more time to sort through classified documents.
The Bergdahl case is anything but typical, and the extended timeline is another example of that. So, what is a typical timeline for a court martial case? The answer is the typical lawyer answer: it depends.
Let’s start with the good news. The good news is that the military justice system moves much more quickly than the civilian system. On the civilian side of things, someone accused of a crime might wait years for the case to go to trial. On the military side of things, the amount of time it takes for a case to go to trial depends largely on the type of case it is, but only in very rare cases does someone have to wait years to have their case heard.
The One Thing All Court Martials Have In Common
No matter what type of court martial a case is, there is going to be an investigation stage, and this is often the longest part of the court martial process. Investigations can drag on for months.
During the investigation stage, the investigating officer acts like a detective, gathering evidence and uncovering additional information relevant to the case. The investigators may ask you to answer questions, or to submit to a search of your belongings. At this point, you should consider yourself a suspect, and think about retaining an attorney with court martial experience.
One of the main reasons you should hire an attorney is to protect your rights. Just because you are in the military does not mean the investigators can pry into your personal affairs for no reason. An attorney can advise you when you absolutely have to answer questions or submit to a search, and when you can refuse.
If the investigating officer finds enough information to charge you with a crime, they will do so, and will also recommend which type of court martial should be used. How long the case takes from this point depends on the severity of the crime and the type of court martial.
Summary Court Martial
A summary court-martial is for minor offenses allegedly committed by enlisted soldiers. A single officer presides over the hearing, and the punishment he or she can impose depends on the grade of the accused. As in the civilian legal system, the government has the burden of proving guilt, and the accused has the right to cross-examine witnesses, to call witnesses and produce evidence and to testify or remain silent.
These cases can take as little as a week to resolve, but they typically last anywhere from a few weeks to a couple months.
Special Court Martial
In contrast to a summary court-martial, a special court-martial may be presided over by three or more members and a military judge, or a military judge alone. An enlisted service member may ask that at least one-third of the court members be enlisted. It may try all persons subject to the Uniform Code of Military Justice (UCMJ), including officers, and hand out any punishment authorized under the Rules for Courts-Martial (RCM) except death, dishonorable discharge, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month or any forfeiture of pay for more than 1 year.
Most of these cases take 3 to 6 months to wrap up. If you ask for a full panel to hear the case rather than a single military judge, it can take longer.
General Court Martial
General courts-martial are reserved for the most serious crimes, and they therefore take the longest.
In most cases, the person facing a general court-martial gets to decide if they would rather be tried by a military judge alone or a panel consisting of a military judge and at least five members. Upon request, an enlisted accused is entitled to a panel consisting of at least one-third enlisted membership.
These cases typically take 6 months to a year to resolve, but as the Bergdahl case illustrates, this can really vary depending on the circumstances.