Case Results – GO Article 15 – Not Guilty

Case Results - Go Article 15 - Not Guilty

On June 7, 2023, John Caulwell of the Law Office of Will M. Helixon represented a Sergeant Major client at a General Officer Article 15 hearing in Kaiserslautern, Germany.

Case Synopsis:

SGM (E-9), assigned to 10TH AAMDC in Kaiserslautern, Germany, was wrongfully accused and investigated by CID for BAH Fraud in the amount of $75,215.07.  The Client was also charged with UCMJ Article 107 (False Official Statement) for allegedly lying to the CID Agent about his marital status.  The Client was facing a General Officer’s Article 15 and, if found guilty on any charges, other negative impacts to his career and ability to retire after 26 years of Honorable service.

Legal Strategy

John worked closely with the Client and his Dependents to gather and record the accurate facts regarding their residency status at the time the Client’s PCS orders and DA Form 5960 (Authorization for BAH) were generated.

John also closely collaborated with expert witnesses from DFAS and then thoroughly and meticulously researched DFAS regulations to determine the Client was legally entitled to the amount of BAH for which he was wrongfully accused of stealing.

John then generated a well-written and effective rebuttal packet complete with a cover letter and enclosures to present to the General Officer adjudicating the General Officer’s Article 15.  Additionally, John was telephonically present on the Client’s behalf for the second reading of the Article 15 to make strong, concise and convincing arguments against all charges.

Case Result

The Client was found NOT GUILTY on all charges which included two charges of UCMJ Article 121 (Theft of Military Property) for the BAH Fraud allegations and one charge of UCMJ Article 107 (False Official Statement) for allegedly lying to a CID Agent about the Client’s marital status.  The Client was cleared of all allegations, unflagged and permitted to retire on schedule with a clean record and no other negative impact after 26 years of Honorable service.

Army Regulation 15-6, AR 15-6 Investigations, administrative investigations, collateral investigations, board of officers, preliminary investigations, commander’s inquiry, RCM 303 investigations, investigating officers, command directed investigations, military investigations, appointing authority, approval authority, serious incident investigations, board members, report of investigation

More about the Law Office of Will M. Helixon.

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martialadverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB processadverse administrative matters, military justice matters including Nonjudicial PunishmentAdministrative Separation Boards, and Boards of Inquiry, and legal assistance matters, including rebutting GOMORs, responding to QMP Boards, fighting attempts to revoke Soldier’s security clearances, and submitting matters for the correction of military records.  The firm also assists officers navigate the minefield of findings of adverse information (AAIP) in AR 15-6 Investigations (command directed investigations), Selection Boards (Promotion Boards), Special Selection Boards, and Special Selection Review Boards (SSRB).  No longer in Kansas City, the firm now has European offices physically located in Vilseck, Germany and in Wiesbaden, Germany.  Call us today to assist with your legal issue in Europe, Germany, or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.

Your Warrior Law TeamTM – The Law Office of Will M. Helixon – Your Warrior AdvocatesTM

The Law Office of Will M. Helixon, your Warrior Law TeamTM, with over a century of combined legal experience, has served as Warrior AdvocatesTM in multiple complex and high-profile military cases.  Founded in 2015, and rebranded and relaunched on October 14, 2023, the Warrior AdvocatesTM of the firm represent Warrior ClientsTM in most military law cases, including military justice matters, adverse administrative actions, complex legal assistance issues, affirmative administrative actions, and fundamental military employment problems.

Our Warrior AdvocatesTM defend Warrior ClientsTM in military justice matters including courts-martial ranging from premeditated murder to rape and sexual assault, from BAH fraud to DUI and drug offense, and military offenses from maltreatment of subordinates and sexual harassment to violating lawful orders and insubordination. Our Warrior AdvocatesTM also represent Warrior ClientsTM pending law enforcement investigations, at administrative boards and non-judicial punishment hearings, and in involuntary separations and “chapter” actions alleging misconduct.

Experts in rebutting adverse administrative actions, our Warrior AdvocatesTM represent Warrior ClientsTM facing command-directed investigations and AR 15-6 investigations, responding to adverse findings of investigations and AAIP filings, and answering notices seeking to revoke security clearances and professional de-credentialing.

Pending the need for legal advice for complex legal assistance questions, Warrior ClientsTMroutinely rely on our Warrior AdvocatesTM in responding to GOMORs, letters of reprimand, and referred, relief for cause, and negative performance evaluations (NCOERs and OERs), assisting with medical issues such as MEBs and PEBs, navigating centralized board actions such as applications to the service component Board of Correction of Military Records (BCMRs) and Discharge Review Boards, and answering QMP Boards, the DASEB, the AGDRB, SSRBs, and other service-specific boards.

When our Warrior ClientsTM suffer wrongs by their command or fellow servicemembers, our Warrior AdvocatesTM advise and assist submitting Inspector General (IG) complaints, Equal Opportunity (EO) complaints, and Sexual Harassment/Assault Response and Prevention (SHARP) grievances and filing complaints and claims under Article 138 UCMJ (remedying command wrongs) and Article 139 UCMJ (compensation for wrongful taking/damage to personal property).

Our Warrior AdvocatesTM also assist Warrior ClientsTM with basic military employment issues including responding to notices of suspensions and terminations and submitting initial applications with the EEOC and MSPB.

Call our Warrior AdvocatesTM at the Law Office of Will M. Helixon, your Warrior Law TeamTM, today to help with your legal issues in Germany, Poland, and the United States.  All our Warrior AdvocatesTM maintain licenses to practice before all military trial courts.


Vilseck: Bürgermeister-Weiss-Strasse 5, 92249 Vilseck, Germany

Wiesbaden: Bärenstrasse 3, 65183 Wiesbaden, Germany

Kaiserslautern: Europaallee 33, 67657 Kaiserslautern, Germany


Poznan: Andersia Business Ctr., 1st Floor, 7 Anders’ Square, Poznan, 61-894


Central Texas: 700 Smith St. #61070, SMB# 50377, Houston, TX 77002

Washington: 1201 Pacific Avenue, 6th Floor, Tacoma, WA 98402

Colorado: 102 S. Tejon Street, Suite 1100, Colorado Springs, CO 80903

KY/TN: 1860 Wilma Rudolph Blvd., Suite 128L, Clarksville, TN 37040

OKC/N. Texas: 1019 Waterwood Parkway, Suite C, Edmund, OK, 73034

Germany +49 (0) 152 2990 0341

United States (913) 353-6466 (main)

Toll Free (844) HELIXON (435-4966)


Alcoholism and the Practice of Law – My Personal Update

Admitting I was and am an Alcoholic

On June 28, 2019, I made public my personal struggle with alcohol and my fresh and raw efforts to “slay the beast” known as alcoholism.  I was motivated by the desire to let other friends, colleagues, lawyers, and judge advocates know that, if they were struggling with alcohol and addiction, that they were not alone.  I also found it cathartic for my recovery to “lay it out there” and own my problems with alcohol.  It was no secret that throughout my career, I was the guy that would close a bar or be the last one to call it a night.  I seemed to always be drinking when I was not working.  But on June 28, 2019, I felt it was time to be brutally honest – at least give it a start.

alcoholism, alcohol rehabilitation, treatment

Battling Alcoholism is an Ongoing Effort

I am writing today to share my continued efforts to battle the disease of alcoholism and offer to talk to anyone privately that may be struggling with alcohol in their lives.  Part of my recovery is helping other alcoholics to recover from alcoholism – in fact – this is part of Step 12 in the Alcoholics Anonymous 12-step program.  But more than that, I must embrace what is an open part of my new life as a recovering alcoholic.  I am not embarrassed about my past, but I wish I could have seen the dangerous road upon which I was traveling sooner.  I wish I could have prevented some of the damage I caused along the way, to friends, family, loved ones, and myself.  I have damaged and destroyed relationships with people who I loved.  I wish someone would have reached out to me and offered me hope to change, and that I would have somehow been humble enough to admit my alcoholism and make changes to heal earlier.  So that is what I am doing now.  Sharing my story and update so that someone out there does not feel that sickening, isolated, crushing feeling of being lost and alone with nowhere to go – being at the end of your rope.  For me, it was the very real attempt to hang myself in the Forest in May 2019, and intervention from my “higher power” that kept me alive and able to seek help and recovery.

Will Helixon, Ebru Choice

First Treatment was 4 Years Ago

It was about this time four years ago when I went to treatment at Warriors Heart in Bandera, Texas.  Warriors Heart is an alcohol and drug treatment facility for veterans and first responders only.  It was there that I met two other Army Judge Advocates who were retired and seeking help with their battles with alcohol.  I know this problem is widespread in the world, and not even lawyers and judge advocates are immune.  My decision to seek treatment in May 2019 was the first time I wanted to change, and the first time I admitted I had a problem.  It is sad that I had to try to kill myself to acknowledge I had a problem.  I must admit that recovery is not an easy road, and that there are bumps along the way.  For many of us, it takes some time to get it right, and unfortunately some never do.  Today, I am approaching 20-months since my last drink.  It is long enough to know that if I don’t practice my program of recovery every day, I face an abrupt return to where I was – and as we say – it is always worse when we “step back out.”

alcoholism, alcohol treatment, Warrior's Heart

The Most Difficult Fight in my Lifetime

Since my last posting about my struggles with alcohol on June 28, 2019, I had highs and lows in my efforts to battle alcoholism.  Admittedly, it does not take a math major to do a little subtraction and realize that my battle with alcoholism did not end with my trip to rehab in May 2019.  I was able to stay sober for several months and found myself drawn back to the allure of drinking – it was not as bad as it had gotten to “wake me up,” but I was still in need of help.  My sobriety date is October 14, 2021 – that is my new birthday.  To get there, my road was tough, and involved multiple returns to Warriors Heart.  I was determined to beat alcoholism, and to not suffer the alcoholic death endured by my father.  But don’t let anyone tell you it is easy – it is not – it is an opponent like no other.  It is a disease in your brain, where you are trying to kill yourself – and your brain tells you that it is okay.  What other disease out there convinces you that it is okay to engage in the conduct that is fuel for your disease?  I do not want to get preachy here, but I had a thinking problem that caused my drinking problem.  I thought I could drink like “normal people” but every time I did, I would find myself in a binge that often ended in a blackout.  Listen to the song I co-wrote at Warrior’s Heart in a program called Operation Song about my battle with alcohol.


Ebru Choice, Will M. Helixon

Multiple Efforts at Rehabilitation

So back to the math.  I wound up going back to rehab a total of four times, with my last treatment beginning on October 13, 2021.  I was fortunate because Tricare paid for it each time costing well over $200,000 in total.  I was persistent if nothing else.  Each time I would get closer to that elusive goal of “slaying the beast” for good. I am so grateful that my wife Ebru Choice stood by my side through the entire ride.  The last time I sought treatment at Warrior’s Heart, I showed up to rehab after a long journey from Germany drunk and battered.  When I arrived in San Antonio, I had been drinking throughout the flights and in the airport lounges.  Warriors Heart was picking me up at the airport, and when I arrived, I stopped at the cantina in the airport and had two double Tito’s straight up to cap off my return to rehab.  As I went to the baggage claim, I stepped outside to smoke a cigarillo and wait for my luggage – stepping outside was the last thing I remember before “coming to” sitting on a bench with EMTs treating me.  Apparently, I fell flat on my face and my eye was swollen shut – they wanted to send me to the hospital, but I refused – instead opting to get to rehab and continue my battle.  I was taken to the hospital the following day for scans to ensure I had not fractured anything in my face.  The only thing fractured was my ego.  That was my very last drink.

Helixon retirement, Ebru Choice, Will M. Helixon

Locked Into Thinking I had to “Quit” Drinking

It took a change in the way I approached my recovery to make the difference in my success, which happened for me in October of 2021.  For the longest time I wanted to quit drinking.  I wanted to stop drinking to avoid the consequences of drinking – to not risk DUIs or other legal issues, to not be an ass to my family and friends, to not be a substandard performer in my professional life, to not risking permanent health ailments, to not dying an alcoholic’s death.  And to achieve those goals I had to do one thing only – to quit drinking.  And I wanted it bad.  More than anything.  The problem for me was the way I framed the question.  To get the benefit of being a good husband, father, friend, colleague, provider, lawyer, and enjoy a healthy life, I had to give something up – alcohol.  I had to stop using it.  I had to quit drinking and say goodbye to Tito’s.  And let’s face it, the only reason I drank was because I liked the way it made me feel – that feeling of being intoxicated.  And I now had to give that up and quit drinking to get any of the benefits, or as they are called in AA circles, “the promises.”

Ebru Choice, Will M. Helixon, Sobriety

Mental Shift to Wanting to be Sober

I don’t know how or when exactly my thinking about having to quit drinking changed – but it did.  I realized that I did not have to give something up to get the benefits I so desperately sought.  Instead, I began to think of it differently.  Instead of having to give up the bottle to live a good life, I began to want to have a good life.  I no longer had to give up drinking, instead I wanted sobriety for sobriety’s sake.  I wanted to be a good husband to be a good husband.  I wanted to be a good father to be a good father.  I wanted to be a good friend to be a good friend.  I wanted to be an empathetic lawyer to be a good empathetic lawyer.  I wanted a good life – I wanted to be sober.  I no longer wanted to quit drinking, instead I wanted to be sober.  And the reason for doing this was not to reap the rewards of putting the bottle down, but instead I wanted to be the good man by not picking the bottle up.  It was a change for me.  I was no longer seeking the benefits of quitting, but I was enjoying the life of sobriety.  I was getting “the promises” of sobriety.  I was not sacrificing, I was blossoming.  And it was when I changed my thinking from having to give up my lifelong companion of alcohol, to embracing my new life of sobriety, that I was able to keep the “beast” in check – as I have learned it will never be slayed.  I was enjoying sobriety.  I was enjoying being a loving husband and father.  I was enjoying being a good friend.  I was enjoying having renewed professional motivation.  I was enjoying not being intoxicated for really the first time in my life.  I was enjoying living.  Not drinking was no longer a burden of having to quit, but rather was a consequence of being sober.  When I finally wanted sobriety, the drinking became inconsequential.  It was an afterthought – more of a “huh, I don’t want to interfere with my sobriety.”  This shift in thinking was monumental and has allowed me to enjoy sobriety for the past nearly 20 months.

Deandre Choice, Devante Choice, Ebru Choice, Will M. Helixon, Richey

Openly and Honestly Embrace my Alcoholism

Because I love being sober, and its natural consequences, I work at it.  I know I still have the disease of alcoholism and I am still an alcoholic.  I know if I have one drink, it will trigger the obsession in my brain that will demand that I drink more and more.  There is a saying that “one drink is too many, but 100 drinks are not enough.”  And if that ain’t the absolute truth, nothing is.  So, to keep my sobriety, I do the things that make it easy for me to be sober every day.  I wake up every day knowing that I am an alcoholic, and that when I drink, my life is unmanageable.  I know daily, that without my faith in something greater than myself, I risk a return to where I was in 2018-19.  I am open and honest about my past, and my alcoholism with those who know me, and those who I meet.  I don’t wear it on my sleeve, but I don’t make excuses why I don’t drink, I simply say that I am an alcoholic.  I share my experiences when I was drinking with others and share what my life is like now.  I openly embrace my past troubles with drinking and enjoy my life of sobriety every day.  I have stopped making all my decisions on what is best for me – Will M. Helixon – but instead I now consider what is best for my wife, children, family, friends, colleagues, clients, and community.  I have stopped being selfish and thinking only of myself.  I live to be of service to other alcoholics and help them with their struggles with alcoholism.  I host 4 two-hour long AA meetings on Zoom every week, although sometimes my schedule interferes.  I talk openly with other alcoholics about sobriety and what I do to continue living a sober life.  I work the 12-steps of AA and know that spiraling out of control is only a drink away.  I have made sobriety my way of life and the rest falls into place, including “not drinking.”  I go back to Warriors Heart every 3-4 months for a few weeks to a month for a “recharge” by sharing my story with veteran’s and first responders desperately seeking to change their lives.  I work with them, and fellowship with them, and this keeps me sober.

gratitude, alcoholism, alcohol treatment

Eliminated Prescription Drugs and Recount Gratitude

I am no longer on any medications.  Sobriety has weened me off the anti-depressants, the anti-anxiety meds, the sleep meds, and the mood stabilizers.  At one point, I was taking 22 pills a night – and no matter how you slice it – that cannot be good for your brain chemistry.  Today, the only medication I take is melatonin to help me sleep.  I rejoice daily in the gifts bestowed upon me – family, health, education, retirement, financial security, my legal practice, my friends, and my sobriety.  I see how many people struggle daily just with making it from day-to-day, wondering if they will get a job, or make the monthly bills, or pay for medical care, or be able to buy enough groceries.  I am so grateful for the security, relative prosperity, and worry-free life I now live.  It is all possible because I want to be sober and live a sober life.  Everything else falls into place.  I have truly been blessed, and the crooked, bumpy, long road I took to get here was there to teach me many life lessons – that I now understand and can appreciate living a sober life.

Will M. Helixon, alcoholism, treatment

Give me a Call or Send me a Note

If you are struggling with alcohol or alcoholism and don’t know what to do, or where to go, or have anyone to talk to, feel free to drop me a note.  My number is on my website, and you can email me at or  While I don’t profess to having the answers, I will talk to you about my experiences, good and bad, and be a sounding board for you.  If you are a friend, colleague, or acquaintance, I will give you some time to talk about alcoholism and things that worked and did not work for me.  I will share my experiences with you to give you someone to talk to about an issue where you feel alone and isolated.

Don’t be embarrassed or too proud to seek help.  Don’t let alcohol fuel your depression to thinking “a trip to the forest” is a good idea.

alcoholism, alcohol treatment, sobriety

More about the Law Office of Will M. Helixon.

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martialadverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB processadverse administrative matters, military justice matters including Nonjudicial PunishmentAdministrative Separation Boards, and Boards of Inquiry, and legal assistance matters, including rebutting GOMORs and the correction of military records.  The firm also assists officers navigate the minefield of findings of adverse information (AAIP) in AR 15-6 Investigations (command directed investigations), Selection Boards (Promotion Boards), Special Selection Boards, and Special Selection Review Boards (SSRB).  No longer in Kansas City, the firm now has a European office physically located in Vilseck, Germany and in Wiesbaden, Germany.  Call us today to assist with your legal issue in Germany or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.

Vilseck:  Law Office of Will M. Helixon – Vilseck – Germany, Hans-Ohorn-Platz 7, First Floor, 92249, Vilseck, Germany.

Wiesbaden:  Law Office of Will M. Helixon – Wiesbaden – Germany, Langgasse 21, 65183, Wiesbaden, Germany.

Germany +49 (0) 9662-293-8047

United States (913) 353-6466

Law Office of Will M. Helixon, alcohol treatment, alcoholism, gratitude, rehabilitation, Warrior's Heart

military defense lawyer, military lawyer, accused testifying, accused as a witness, court-martial

Should the Accused Testify? – Factors a Military Defense Lawyer Should Consider

To Testify or Not to Testify – That is the Question.

One of the first questions a military defense lawyer should answer is whether the Accused will testify in his or her own defense during the merits portion of a court-martial.  This decision will drive most of the other decisions of the trial, and establish the core of the Defense case, around which the remainder of the Defense case is built.  The decision whether the Accused testifies on the merits portion of the trial is NOT a decision made by the military lawyer – it is a decision made solely by the Accused.  Of course, the Accused will rely heavily upon the advice of his military lawyer, but the ultimate decision rests only with the Accused.  I can say in my last ten (10) contested courts-martial, the Accused has testified on the merits in every case.  The ranks of the Accused have ranged from Private First Class to First Sergeant to Chief Warrant Officer 2 in those cases.  For me and the military defense lawyers at the Law Office of Will M. Helixon, we begin with the starting point that the Accused should testify on the merits portion of the case in his own defense.  For me personally, this “starting point” is based on my thirty (30) years of experience as a trial lawyer and on the outcomes in the over 150 contested trials I have litigated in my career, both as a military prosecutor and a military and civilian defense counsel. Upon what does the military defense lawyer base their advice when making the decision to recommend to the client that they should testify on their own behalf in the pending court-martial?  What factors should the military defense lawyer consider when formulating their legal advice to the client regarding whether to testify on the merits?  These are GREAT questions and the formula for answering them will provide the military defense lawyer with the needed information to intelligently advise his client whether to testify or not.

accused testifying, military defense lawyer, military lawyer

Remain Flexible — Original Plans May Change

As most know, courts-martial are their own lifeforms and they NEVER go exactly as planned.  Although military defense counsel should have a plan regarding whether the Accused is going to testify well in advance of trial, the battlefield may change during trial.  For instance, if the trial turns into a “disaster” and the only way to win is a “Hail Mary,” the military defense counsel may advise the Accused to testify where it was planned that they were not previously.  This is why it is good to always be prepared to have the Accused testify even if the plan is to not testify.  Likewise, the Accused may be ready to take the stand and testify, but Government case fell apart, with the alleged victim all but recanting on the stand.  In such cases, it may be advisable to not have the Accused testify as planned.  The bottom line is to be prepared, and adjust to the specifics of your court-martial as they emerge during the trial.  A note on when the Accused should testify.  I generally favor having the Accused testify first out of the gate.  Again, this is a general rule that is driven by the evidence.  If you need to set up the Accused’s testimony with other witnesses, then that is the appropriate course of action given the specifics of your court-martial.  It can also be argued that the Accused should testify last, tying all the evidence together and being the last testimony heard by the military members before they deliberate.  What the military defense counsel should not do is go into the defense case without a plan — and as they say — no battle plan survives the first contact with the enemy.  The same is true of courts-martial.

Preliminary Thoughts on Whether the Accused Should Testify.

A few preliminary thoughts.  First, the Accused has the absolute right not to testify at a court-martial.  This right is enshrined in the Fifth Amendment to the U.S. Constitution and in Article 31(b) of the Uniform Code of Military Justice.  If an Accused decides not to testify at a court-martial, the military judge will instruct the members that they can draw no adverse inference from the decision not to testify at trial by the Accused.  Frankly, military members are pretty good about not drawing adverse inferences against the Accused for not testifying.  They tend to follow the law.  With that said, if the Accused is a Non-Commissioned Officer, especially a Senior NCO, or a Commissioned Officer, there is an expectation that the Accused will testify and tell their of the story.  This is a natural expectation in the military, where NCOs and Officers are expected to justify or explain their orders and directions, and likewise explain their conduct when it is questioned.  While I firmly believe that the members will follow the military judge’s instruction on the law – and not draw adverse inferences from the Accused not testifying – the expectation that they should testify will still exist, and the members will wonder what the Accused would say if they had testified.  With those caveats, what are the factors and considerations that must be analyzed before the military lawyer advises the client whether or not to testify on the merits (as compared to sentencing) of the court-martial?  We have identified twelve (12) factors or considerations to weigh when advising your client whether to testify or not.

military lawyer, military defense lawyer, accused testifying

Factors to Consider Before Advising the Accused Whether to Testify or Not.

To begin, it is important to note that every court-martial case is different, and there is no one-size-fits-all approach to determining whether an Accused should testify. The decision ultimately hinges on a range of complex and often competing considerations, including the case’s facts, the Accused’s prior criminal history, the potential credibility of the Accused, and the strength of the Government’s case. Here are some of the key factors that military defense lawyers should weigh when making this critical decision as to what advice to give the client regarding testifying at a court-martial:

1.  What is the Nature and Strength of the Government Case Against the Accused?

The strength of the Government’s case is a critical factor that determines whether an Accused should testify at the court-martial.  If the Government has a strong case against the Accused and a significant amount of evidence that could potentially incriminate them, it may be in the Accused ‘s best interest to avoid testifying in court. This is particularly true if the Government’s evidence is mostly circumstantial, as it can be challenging for an Accused to rebut without incriminating themselves. In such cases, a seasoned military defense lawyer may dissuade the Accused from testifying in court and instead seek to discredit the Government’s evidence through cross-examination of their witnesses and identifying lapses in the Government’s case. On the other hand, if the Government’s case is based solely on the testimony of an alleged victim, or rests on the Government inferring the specific intent of the Accused based on the evidence (excluding prior statements of the Accused), then it will usually be beneficial for the Accused to testify at trial.  In these instances, the Accused’s testimony would directly refute the Government’s evidence, and ultimately, theory of the case.  Most of the cases tried in the military fall into this second category, especially the cases involving sexual assault and domestic violence.

2.  Has the Accused Given Pre-Trial Statements Admitting to the Offenses?

In cases where the Accused has “confessed” to law enforcement and provided a written or videotaped statement outlining the misconduct, it is usually advisable for the Accused to not testify at the court-martial.  This is especially true when there is great detail given in the statement, and there is evidence supporting the elements of each charged offense, not just conclusory statements.  If the Accused testifies at trial in such instances, they will have to contradict the prior statements, including the details provided, and risks looking like they are “lying” to avoid prosecution.

accused testifying, military defense lawyer, military lawyer

However, if the pretrial statement of the Accused is an exculpatory statement, or does not outline the elements of the offenses, then the Accused should consider testifying at trial, so long as the statements can be “woven” into the direct testimony.  It is critical that these pretrial statements not be seen as inconsistent or contradictory.  If they can be adequately explained and are consistent with the Defense narrative, then serious consideration should be given to the Accused testifying on their own behalf at the court-martial.

3.  Can the Defense Theory be Proven without the Testimony of the Accused?

In most cases, especially cases of sexual assault and domestic violence, the Defense Theory cannot be adequately proven without the testimony of the Accused.  How does the Defense get the defense of consent or mistake of fact as to consent before the members without the testimony of the Accused?  Admittedly, in some instances it can be done through cross-examination of the alleged victim, but in today’s military sexual assault climate, where every alleged victim has their own Special Victim Counsel (SVC), the ability for the Defense to develop this cross-examination is limited.  This is especially true since most SVCs refuse to let their client (alleged victim) interview with the Defense before trial, so the first shot at cross examination is when the alleged victim takes the stand – this is too late to develop your Defense Theory of the case.  As a result of these “safeguards” developed to shield the alleged victim from the Defense, the Accused will have to testify to get their version of events before the members. In cases requiring specific intent, such as larceny and BAH Fraud cases, the best evidence of that specific intent is the testimony of the Accused.  Only they can provide what was actually the thought process behind the documentary evidence usually supporting those charges.

4.  Is there a Government Narrative that can Only be Countered by the Testimony of the Accused?

When the only evidence to contradict the Government narrative and theory of the case is the testimony of the Accused, it is strongly recommended that the Accused testify in those instances.  The military defense lawyer will be able to determine if they can get their counter narrative before the members through their request for production of witnesses, defense discovery, and pretrial motions hearings.  If at the conclusion of those efforts to get the Defense narrative before the military members it appears that the only evidence supporting the Defense Theory is the testimony of the Accused, then they should consider testifying at the court-martial.

5.  What is the Credibility of the Accused Regarding the Character for Truthfulness?

The credibility of the Accused is another crucial factor that military defense lawyers need to pay close attention to when deciding whether to call their client as a witness in their court-martial. If there are credibility issues, such as a history of deceit or dishonesty, an Accused testifying in their case might do more harm than good, particularly in instances where the Government is able to successfully impeach the Accused’s testimony.  A military defense lawyer needs to carefully review their client’s history and assess their credibility before making a final decision about whether they should testify at the court-martial.

military lawyer, accused testifying, military defense lawyer

This history requires investigation on the part of the Defense.  The military lawyer should start by asking the Accused who would testify that you have a character for truthfulness, or have a reputation for being truthful?  This list should be complete, and consider friends, co-workers, peers, subordinates, and superiors.  The military lawyer should also ask the Accused who does not like you and would say negative things about you?  Both of these groups of potential character witnesses should be interviewed to determine the Accused’s character for truthfulness.  If the military lawyer determines that the Accused has a provable character and reputation for truthfulness, then the Accused should consider testifying at the court-martial, if their testimony advances the Defense Theory and narrative. Conversely, if there is evidence of a character for untruthfulness or reputation for untruthfulness discovered, the Accused should be confronted with that evidence, and be dissuaded from testifying at the court-martial.

6.  What is the Criminal History and Adverse Actions Against the Accused in the Military?

When deciding whether to call an Accused as a witness in their case, military defense lawyers also need to consider the Accused’s prior criminal history.  If the Accused has a history of criminal activity or has been convicted of a crime in the past, testifying in court could open the door to a damaging cross-examination from the Government.  Past criminal activity can be used to impeach the Accused’s credibility and potentially cause them to appear untrustworthy or unreliable in the eyes of the military members. In many instances, especially in the military, there will be no prior criminal history of an Accused.  This is simply true because when a military member engages in misconduct in the military, they are usually separated for that misconduct (or court-martialed).  So, the Accused is usually facing adverse action for the first time at a court-martial.  In cases where there is no prior criminal history or a history of adverse administrative actions, the Accused should consider testifying on their own behalf at the court-martial. This is not always the case.  Sometimes, there will be a history of adverse administrative actions taken against the Accused before trial on unrelated matters.  If the underlying misconduct in those instances has a bearing on truthfulness, such as prior false official statements, or forging of documents, or misrepresentations made to the command, then this evidence can be used against the Accused if they decide to testify.  As a result, in these cases, the Accused should be discouraged from testifying.

7.  What are the Abilities of the Accused to Testify in a Coherent Fashion without Appearing to be Incredible?

An Accused’s communication abilities play an important role in the decision about whether to have them testify in court. Not every Accused is comfortable speaking in public, and some may struggle to articulate their thoughts under the pressure of the trial setting. If an Accused has difficulty communicating effectively, they may provide inconsistent or garbled testimony that could undermine their credibility in the eyes of the military members. This can be a very specific issue in cases where the charges involve technical data or the underlying subject matter is very specialized, such as in a BAH Fraud case or other complicated larceny schemes.  In such cases, the military defense lawyer may recommend not calling their client to the witness stand in court. Conversely, if the Accused is an articulate, clear-thinking, organized speaker, and they are not intimidated telling their version of the facts, then consideration should be given to having them testify at the court-martial.  In the military, most NCOs and Officers are put into positions that require them to brief subordinates and go through military decision-making processes that train them to be better than average communicators.  Military defense lawyers should use this to their advantage.

8.  What is the Ability of the Accused to Withstand the Cross-Examination of the Government Trial Counsel?

The Defense must also consider the potential for the Government’s cross examination of the Accused. Cross-examination is a critical part of the adversarial process in courts-martial, and an Accused who takes the stand must be prepared for intense scrutiny from the Government. If the Government has evidence that could potentially contradict the Accused’s testimony, or if they are likely to be able to impeach the Accused’s credibility through cross-examination, the military defense lawyer may determine that it is not in their client’s best interest to testify. Instead, they may attempt to discredit the Government’s evidence through other means, such as cross-examining the prosecution’s witnesses, offering testimony from other defense witnesses, or drawing inferences from other evidence present.  If the Accused does testify, they will have to “eat” any bad facts that exist that cannot be explained away rationally.

cross examination, accused testifying, military lawyer, military defense lawyer

As a practice tip, most Government Trial Counsel are relatively unprepared to cross-examine an Accused.  At the outset, cross-examination of the Accused is one of the most difficult cross-examinations conducted by prosecutors.  This is especially true if there are no pre-trial statements to use to “box in” the Accused.  Since the Government does not have the opportunity or the right to talk to the Accused before they take the witness stand, the cross-examination is “naked” and often without sufficient preparation. In fact, some young Government prosecutors count on the Accused not testifying and are wholly unprepared for an Accused’s cross-examination.  A seasoned military defense lawyer should not rely on this lack of preparation by the Government as being a reason to have your client testify but should not be surprised by ineffective cross-examination by the Government.

9.  Does the Accused Want to Testify, or Alternatively, Does He Object to Testifying?

This is probably the easiest factor for a military defense lawyer to assess.  If the Accused is terrified about testifying and strongly objects, one should determine their reasons.  If they can be overcome with practice and preparation, then that is one thing.  If on the other hand, they are deep rooted, and based on the evidence that they would have to give under oath and testifying truthfully, then they should obviously be advised not to testify.

10.  Can the Military Defense Lawyer Ethically Have the Accused Testify on Their Own Behalf?

This is related to whether an Accused wants to testify.  The Rules of Professional Conduct govern what evidence the military defense lawyer can ethically put on the stand.  If the military defense lawyer knows the Accused is going to testify untruthfully beyond a reasonable doubt, then they are prohibited from allowing the Accused to testify.  In those very rare circumstances where the Accused insists on testifying falsely, then the military defense lawyer should seek the advice of their State Bar and are usually prohibited from eliciting “questions and answers” from the Accused, but rather must only permit them to testify in narrative fashion.

military lawyer, military defense lawyer, accused testifying

However, if the military defense lawyer does not believe the Accused will testify falsely, and is merely inconsistent with prior testimony, or even with prior statements made to the lawyers, there is generally no prohibition from the military defense lawyer from directing the Accused in a “questions and answers” format when they testify.  Regardless, if the testimony appears to be rehearsed, unbelievable, or unreliable, caution should be given to having the Accused testify on their own behalf.

11.  Can the Accused Take Advice from the Military Defense Lawyer on Presentation, Style, and Poise when Testifying?

Phrased another way, can the Accused not lose his composure when testifying.  This is not usually an issue on direct examination but is a potential issue during the Government’s cross-examination of the Accused.  If the Accused is “coachable” from a communication perspective, then they will make a much better witness.  DO NOT take this to mean tell the Accused what to say, or suggest answers to specific questions, it means using proper phrasing, avoiding vernacular or profanity, maintaining appropriate military bearing, addressing the court personnel appropriately.  The Accused must avoid looking like he just walked in from the motor pool with his Specialist-mafia or is out with his fellow Captains hitting the town.  The military defense lawyers should assess the Accused’s use of language, tone, pacing, pitch, speed of delivery, pauses, non-verbal cues, and overall communication skills when deciding on whether to recommend that they testify at a court-martial.  If the communication skills need improvement, can they be appropriately coached before trial.  If the Accused is or will be an effective speaker at the court-martial, consideration should be given to them testifying on their own behalf.

12.  Bottom Line, Do the Benefits of Testifying Outweigh the Potential Risks?

Despite if all the above factors weigh against an Accused testifying, in certain circumstances, there could be strategic benefits of calling the Accused to testify.  For example, if the Accused has a compelling personal story or perspective that could sway the military members in their favor, it might be worth taking the risk to testify in court.  Additionally, if the Defense is having a tough time convincing the military members of its best alternative theory or narrative, testimony from the Accused under oath could clarify some aspects of the case and help the Defense win their case. However, testifying could also expose the Accused to harmful cross-examination, so any potential benefits need to be carefully weighed against the risks.

Conclusion – Deciding Whether the Accused Testifies.

The decision of whether an Accused should testify in their own defense rests on a number of complex factors that must be weighed deliberately. Military defense lawyers must make a calculated assessment of the Accused’s potential credibility, the strength of the Government’s case, and other considerations related to the court’s-martial circumstances to make a well-reasoned decision.  Ultimately, the choice of whether the Accused becomes a witness rest upon the decision of the Accused based on the sound advice of their military defense counsel, and it is essential that the decision is made in the best interests of the client who is their primary obligation.  In almost all cases in my personal experience, the benefit of the Accused testifying outweighs the risks of such testimony and is almost always helpful to the Defense merits case.

Accused testifying, military defense lawyer, military lawyer, cross-examination  

More about the Law Office of Will M. Helixon

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martial, adverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB process, adverse administrative matters, military justice matters, and legal assistance matters, including the correction of military records.  No longer in Kansas City, the firm now has a European office physically located in Vilseck, Germany.  Call us today to assist with your legal issue in Germany or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.

Law Office of Will M. Helixon – Germany, Hans-Ohorn-Platz 7, First Floor, 92249, Vilseck, Germany.

Germany +49 (0) 9662-293-8047

United States (913) 353-6466

Military Defense Attorney, Military Lawyer, Court-Martial Defense, Army Attorney The Law Office of Will M. Helixon - Over 50 years of military law experience.  

Court-Martial Defense Lawyer and Military Lawyer in Germany Will M. Helixon

The Defense Sentencing Case in a Court-Martial: Absolutely NOT an Afterthought

The Law Office of Will M. Helixon recently represented a First Sergeant in a case where he was alleged to have gotten into an altercation with another parent after that parent was aggressive with his children and hit one of them with a flag football flag in the face in a parents v. kids practice game.  The First Sergeant did not witness the incident, but was told by his two children on the field about the incident.  The First Sergeant was accused of driving to the parent’s house, threatening him, forcing him into his truck, driving him to his house, forcing him to apologize to his children, and then slapping him across his ear and kicking him in the back down the stairs.  In a military judge alone special court-martial, the judge found the First Sergeant guilty of kidnapping, communicating a threat, provoking speeches and gestures, and assault.  We were surprised by the findings — believing that the Government had not proven beyond a reasonable doubt the events occurred as charges — especially given the testimony of the accused First Sergeant, his wife, and three minor children aged 10, 11, and 13.  This blog post is not to relitigate the case, or even complain of or question the verdict, but rather to emphasize the importance of preparing the best sentencing case possible, even for case you believe you will likely win on the merits.  After putting on the Defense sentencing case, and arguing for no punishment, the military judge sentenced the First Sergeant to NO PUNISHMENT.  This was a great result for our client in the end, and would not have happened had we not been adequately prepared for a sentencing case we did not think would come.  This blog post provides a template for creating a Defense sentencing case.

What is the Defense Sentencing Case?

In the case of a court-martial Defense sentencing case, the evidence presented in the trial’s defense is crucial in securing a favorable outcome for the accused. The Defense Team must introduce evidence that not only strengthens their case but also prompts a more lenient sentence from the military court. Defense evidence can be anything that supports the defendant’s claim of extenuating circumstances or mitigating facts against the charges they are facing.  R.C.M. Rule 1001(d) outlines the evidence that can be presented by the Defense during its sentencing case, which includes matters in extenuation, matters in mitigation and statements of the accused.  It is through these gates that all sentencing evidence must be admitted.

When to Begin Working on the Defense Sentencing Case?

Counsel should begin working on the sentencing case in the very first meeting with the Accused.  In all of my contested cases, we start with the presumption that the Accused would testify on his or her own behalf.  This does a couple of things:  First, it puts the character of the Accused in play during the merits portion of the case, and second, it creates the need for the Defense to immediately start contacting all character witnesses.  On the merits, depending upon the charges, relevant character traits of the Accused would be truthfulness, law abidingness, and peacefulness.  Good military character or good Soldier evidence will be relevant if it goes to an essential element of any offense, or if the Accused is charged with any military-related offense such as AWOL, dereliction of duty, disrespect, violation of an order, or conduct unbecoming and officer and gentleman (there are others).  In the very first meeting with the Accused, it is important to explain the relevance of character evidence, both on merits and sentencing, and to have the Accused make a comprehensive list of witnesses that would provide relevant good character evidence.  On the merits, such evidence may be limited to good character at or near the time of the offenses, but on sentencing it is much broader in relevant times.  The Accused should consider all those who could provide such evidence, including superiors, peers, subordinates, family members, friends, and colleagues who know him well enough to form an opinion regarding character, or are aware of his reputation in the community (usually the unit), for relevant good character.  Once this list is compiled, Defense must ensure that the Accused has provided you current military and civilian email addresses for these witness so you can effectively correspond with them.  After the Accused has complied a comprehensive list of good character witnesses, both for merits and sentencing, instruct him to call each of them, personally ask them to be a character witness in his or her upcoming court-martial, and have him explain in clear language with what he or she is being charged.  It is important that the Accused not make any incriminating or contradictory statements regarding his or her conduct — and this must be thoroughly explained to the Accused.

What Evidence Should Be Included in the Defense Sentencing Case?

It is important to create as in-depth and complete picture of the Accused as possible during the Defense sentencing case.  The Military Rules of Evidence applies to the sentencing phase of the trial, although the defense can request the “relaxing” of the Rules of Evidence for sentencing.  If the judge relaxes the Rules of Evidence for the Defense Sentencing Case, the Rules will also be relaxed for the Government.  Evidence offered by the Defense should contribute to the goal of humanizing the Accused, and seeking leniency from the Court.  

A.  Character Affidavits – MRE 405(c)

Only after the Accused has made contact with a potential character witness, should the Defense then contact the witness.  In my cases, I generally start with an email explaining who I am and introducing the witness via email to the Defense team.  I attach a character affidavit worksheet to the email and request the witness to complete the worksheet.  This worksheet can be used to draft the synopsis of expected testimony for the production of witnesses, drafting the initial direct examination of the witness, and used to draft character affidavits to be introduced in accordance to M.R.E. Rule 405(c).  After determining which witnesses will testify in-person at the court-martial, I then draft a sentencing character affidavit based on the answers in the worksheet for those witnesses that will not appear in person for the court-martial.  The affidavit is drafted with an eye towards sentencing — I then redact the sentencing affidavits for use on the merits as a merits character affidavit with the relevant character traits.  In the end, there are two versions of the character affidavits, one for use on the merits and one for use on sentencing.  This takes time to complete — and if the character witness is not responding fast enough, it is important to get the Accused to assist in having the witness complete the character affidavit worksheet and signing and notarizing the sentencing character affidavit (merits is redacted form the sentencing affidavit).  In our First Sergeant case, we had eight (8) character affidavits for both merits and sentencing, and they were very powerful in swaying the military judge to give no punishment.

B.  The “Good Soldier” Book – Personalizing the Accused

When it comes to sentencing in a court-martial, the character and service record of the accused are often taken into consideration in determining the appropriate sentence.  One of the tools used to present this information to the court is a “good soldier” book.  A “good soldier” book is essentially a collection of documents and testimonies that paint a picture of the accused’s character and service in the military.  It is designed to showcase the individual’s positive attributes and contributions to the military in order to demonstrate that a harsh sentence is not warranted.  Here are some tips on how to build a “good soldier” book for introduction at sentencing in a court-martial.

1.  Start Early – A “Good Soldier” Book Takes Time to Compile

Building a “good soldier” book takes time, as it requires gathering many documents and testimonies. It is essential to start building this book as soon as you know that the accused is going to face a court-martial. Waiting until the last minute could lead to incomplete or missing information.  It is also important to have the “good soldier” book completed early enough to give a copy to the Government well before the eve of trial and early enough to use the “good soldier” book when developing the “questions and answers” portion of the Accused’s unsworn statement.

2.  Know What to Include – OMPF v. AMHRR – and Gather Documents

A “good soldier” book should include important documents, such as achievement awards (including citations and award recommendations), training certifications, and fitness reports (including from schools).  Evaluations should be in chronological order and highlighting particularly noteworthy reviews.  The Accused should download his or her OMPF from the U.S. Army Human Resources Command through iPERMS.  The Army Military Human Resource Record (AMHRR) is an umbrella term encompassing human resource records for Soldiers, retirees, veterans, and deceased personnel.  The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance related documents, and non-service related documents deemed necessary to store by the Army.  The OMPF is a collection of information which permanently documents a service member’s career in the military.  The OMPF contains documentation pertaining to accession, training, education, assignment, performance, discipline, decoration, casualty and separation of the service member.  Pictures of significant coins with an explanation of why they were received and pictures of “going away plaques” should be included and explained.

3.  Additional Character Letters Separate from Character Affidavits

The “good soldier” book should also include letters of recommendation and testimonies from superiors and colleagues that did not complete the character affidavits that speak to the accused’s positive character and contributions to the military.  These letters and testimonies can come in many forms — from hand written letters, to typed memorandums, to emails from witnesses.  It is important that these letters establish the basis of knowledge of the witness to make the conclusions in the letters.  Examples of these letters include those from coaches, pastors, civilian employers, friends, relatives, people the Accused has helped in the past, soldiers with whom the Accused deployed, co-workers of the Accused, and anyone who has positive things to say about the Accused.  Remember, “particular acts of good conduct” demonstrating good character are admissible on sentencing.

4.  Photographs and Videos

The “good soldier” book should also contain photographs of the Accused in an effort to humanize him before the judge or members.  These photographs should fall into a few separate categories: 1) family photographs, including spouse and children, siblings, parents, grandparents, aunts and uncles, and other close relatives, 2) work photographs, including hails and farewells, day-to-day military activities, and field exercises, 3) deployment photographs, 4) military history photographs showing relatives who have served in their uniforms, 5) major events photographs, including the birth of children, birthday parties, returns from deployment, baptisms, confirmations, religious events, sporting events, and other special activities, and 6) developmental photographs showing the Accused growing up and joining the Army such as childhood photos, school photos, sporting event photos, and extracurricular activities photos.  These photographs should be organized in a logical manner, and there should either be an explanation of the photo under each picture, and the photos should be numbered so the Accused can refer to them during his or her unsworn — for example, “photo 23 on page 15 of the ‘good soldier’ book is a picture of when my wife and I went to Paris for our 5th wedding anniversary while I was stationed in Ansbach, Germany.”

Videos should be considered to convey events captured on video, such as ceremonies where the Accused makes a statement like weddings, promotions, and activities.  Consideration should be given to have a closing video set to appropriate music that truly personalized the Accused — it is always powerful to combine music with pictures and videos to convey the life of the Accused.

5.  News Articles, Newsletters, and Publications about the Accused

Include a section in the “good soldier” book containing news articles about the Accused.  These could range from local news reports about athletic achievements in high school to coverage about the Accused participating in hometown recruiting.  Any time the Accused was mentioned in the newspaper, it should be included in the “good soldier” book.  Also include any mentions in company or regimental or military newsletters, whether it is an article about the Accused or an article authored by the Accused.  Consider including social media profiles if they personalize the Accused, especially from professional sites such as LinkedIn.  If there are laudatory posts, consider including them in this section of the “good soldier” book.  Run a Google search and a Lexis search of the Accused to determine if there is anything in the open source relating to the Accused that could be beneficial to the Defense sentencing case.  This section of the “good soldier” book is about publications related to the Accused and is used to show that he or she has accomplished newsworthy achievements.  Include any official or unofficial biographies or resumes, whether military or civilian in nature.

6.  Military and Civilian School Records and Transcripts

Include all civilian and military schooling records and transcripts in the “good soldier” book.  This demonstrates to the Court that the Accused is constantly seeking self-improvement, and dedicated to learning.  The transcripts would show particular areas of study and research that shows the Accused as a well-rounded person and Soldier.  If the Accused was recognized at any of these educational institutions, such as being on the dean’s list or graduating with honors, ensure that is included in the “good soldier” book.

7.  Hobbies, Volunteer Work, and Religious Activities

Outside activities should be documented in the “good soldier” book.  These activities could range from serving as a volunteer youth coach, or a mentor with Big Brothers/Big Sisters, or volunteering at the local school for field trips or lectures to the kids.  Letters from those aware of these activities could be included in this section.  If the Accused has a notable hobby such as woodwork, painting, arts & crafts, leatherwork, or making “going away” gifts, it should be included in the “good soldier” book with pictures of a sample end products to include in the photographs section.  If the Accused has unique skills such as playing musical instruments, operating non-work related equipment, or mechanical skills (like restoring cars, etc.), these skills should be included in the “good soldier” book.  If the Accused is a lay minister or preacher, or teaches Sunday school or other religious classes, or hosts religious studies, include such information in the “good soldier” book.  Again, letters from those aware of these activities should be included to demonstrate the Accused’s volunteer activities.  Any outside activities that require certification, such as being a private pilot, a personal trainer, a fitness instructor or yoga instructor, skydiving or scuba diving, or motorcycle driving should include the certification and photos of the Accused engaging in those hobbies.  Be sure to seek letters from those familiar with the Accused’s participation in these hobbies.

C.  Statement of the Accused

Rule of Court-Martial Rule 1001(d) provides that the Accused may testify, make an unsworn statement, orally or in writing or both, both in extenuation, in mitigation, to rebut matters presented by the prosecution, or to rebut statements of fact contained in any crime victim’s sworn or unsworn statement, whether or not the accused testified prior to findings.  We have found it very beneficial to the Accused to offer an unsworn written statement drafted by the Accused and read to the Court, and a “questions and answers” unsworn statement similar to a direct examination by the Defense counsel.

1.  Unsworn Written Statement of the Accused

This is a perfect vehicle for the Accused to show remorse for his or her offenses, and apologize to the families and victims.  Much care should be exercised to wording the apology and statement of remorse to accept responsibility fully and to apologize to the victim and victim’s family without wholesale admitting to the offense.  In some cases, falling on one’s sword is the only course of action for the Accused, but in such instances, the Accused should be advised of the consequences of admitting to the offenses wholesale.  In our First Sergeant case, the Accused apologized to the two parents he confronted about issues he was having with them regarding his children.  He apologized for his immature behavior, for losing his temper, and confronting them in person.  He acknowledged he should have approached them calmly on the telephone, rationally discussed the dispute with each parent, and if the conflict could not be resolved in this fashion, he should have raised the issue with his chain of command.  He apologized for his actions and the affect it had on the victim-parents and their families.  The Accused should also use the written unsworn statement to apologize to other interested parties including his supervisors, the chain of command, the unit, the Army, his family, and the Court.

The unsworn written statement should also be used to convey information to the Court that would be difficult for the Accused to talk about in the “questions and answers” unsworn.  In our First Sergeant case, we used this statement to highlight his three generations of family service going back to WWII, the Korean War, and the Vietnam War.  We also used it to address issues that could have been considered “collateral consequences” of the conviction such as the Quality Management Program (QMP) and Retention Control Points (RCP).  The unsworn written statement is an appropriate vehicle to get information to the factfinder that might be deemed otherwise irrelevant such as sex offender registration.  While the judge may issue a limiting instruction on irrelevant matters in the unsworn statement, the Accused will not be prohibited from discussing almost anything during the unsworn.  Finally, in our case, we used the unsworn written statement to highlight the behavioral health treatment and counseling he had received, and discussed his diagnosis and his plan to address his behavioral health issues in the future.  This unsworn written statement is read to the Court by the Accused before his “question and answer” unsworn statement, and a copy of the statement is admitted as a Defense Exhibit.

2.  Unsworn “Questions and Answers” of the Accused

The unsworn “questions and answers” statement of the Accused should avoid simply repeating the information contained in the written unsworn statement.  This “questions and answers” unsworn does allow the Accused to elaborate on some of the issues raised in the written unsworn, but it should avoid merely repeating the information in the written unsworn.  The “questions and answers” unsworn statement should include information about the Accused’s upbringing, highlighting any particular hardships like childhood physical or sexual abuse, poverty, and neglect.  It should also include (non-exhaustive list) the following:  if possible, an apology to all victims, how the Accused could have handled the situation better, an apology to the unit/command and how the conduct has affected the unit/command, an apology to the Accused’s family and how the conduct has affected the family, an apology to the Court, one’s civilian and military educational background, activities and hobbies as a child, activities and hobbies as an adult, any non-military adult trauma, one’s military service history, all deployments and what the Accused did on those deployments, any traumatic events witnessed on deployments, any treatment for anger or other mental health issues, any treatment for PTSD and current treatment and prognosis, how the Accused met their spouse, information the marriage and life together, information about the children, the importance of the family, the importance of the Army, all Army leadership positions and leadership style, the importance of staying in the Army, the importance of the Accused’s current duty in the Army, any financial hardships faced with reduction or discharge, the Accused’s goals in the Army, and what the Accused would do after any period of confinement.  As noted above, only the apologies should be repeated in both the written and “questions and answers” unsworn statement.  The exact nature of your “questions and answers” unsworn statement will depend on the background and experience of the Accused, and should be developed with the goal to mitigate and explain the actions for which the Accused was found guilty.  There is no need to repeat information solicited from the Accused on the merits, if they testified.  This “questions and answers” unsworn statement should be gone over with the Accused at least once before delivering it during the Defense sentencing case, and should be used to “humanize” the Accused and make him or her come alive to the Court.

D.  Judicial Notice of Relevant Laws and Regulations

It is important to have the Court to take judicial notice of all regulations and laws that may affect the Accused after the court-martial.  As mentioned above, some of these may be considered purely “collateral consequences” of the conviction, and the military judge may not permit introduction of such evidence.  In those cases, it is important to have the Accused mention them in the unsworn statement.  In our First Sergeant case, we had the judge take judicial notice of the Quality Management Program, where the Accused must “justify” his retention in the Army after being convicted in a court-martial, and of the Retention Control Points, showing that the Accused would be forced out of the Army if he was reduced to the grade of E-5 or below based on his time in the military.  Other areas of judicial notice requests could include sex offender registration, security clearance revocation, and reclassification.

E.  DFAS Retirement Loss Calculation

Particularly when the Accused if facing discharge from the Army as a result of the court-martial, it is important to show the financial impact of such a discharge.  If the Accused has substantial time in the military, and would lose retirement if discharged, showing the exact financial impact is important to the fact-finder.  Retirement estimates, depending on the rank and age of the Accused, could be worth several million dollars.  Coordinate these requests with DCAP to ensure they are obtained well in advance of trial.  In our First Sergeant case, we ran the retirement calculation for reduction from E-8 to E-7 to show the long-term financial loss to the Accused if he was reduced one grade.  In our case, the one grade reduction was valued at over $110,000 over the lifetime of the Accused.  This evidence is very powerful to the Court especially when the offenses are relatively minor when compared to the financial loss the Accused is facing.

F.  Live Good Military Character and Other Good Character Witnesses

Live witnesses that will testify about the good character of the Accused and his good military character are essential in developing a complete Defense sentencing case.  These witnesses will usually be witnesses who testified about truthfulness, law abidingness and peacefulness on the merits.  Since the Court will usually limit the number of these witnesses on the merits based on cumulativeness, there will be witnesses who have yet to testify at the court-martial.  Be sure to rank these witnesses based on the impact of their testimony.  Try to avoid “repetitive” testimony, but ensure the fact-finder gets an accurate understanding of the good character of the Accused.  In our First Sergeant case, the military judge allowed only three character witnesses on the merits, despite us having seven lined up.  During sentencing, we called the three prior witnesses who testified on the merits, and did not have to repeat their qualifications or how they knew the Accused.  The remaining four witness were permitted to testify on sentencing without objection.  The Court is typically more liberal on cumulative on sentencing than on the merits.  Be sure to have quality witnesses to testify about the good character of the Accused, and these witness should include peers, subordinates and superiors.

G.  Flipped or Coopted Government Witnesses for Good Character

There is nothing better than converting a Government witness into a Defense character witness.  Be sure to question all Government witness about the character of the Accused to determine if any of them would be good Defense character witnesses.  In our First Sergeant case, we identified two Government witnesses who would provide excellent character evidence, and were ready to call them in Defense sentencing case.  Additionally, there was a Government witness who passed a note to the prosecutor asking to testify on behalf of the Accused during sentencing.  The Government passed the note to us, and we called the witness in our case.  We started the direct of the witness by establishing that he was a  Government witness, and the he requested to testify on behalf of the Accused.  His testimony was powerful, and after he testified, we made a tactical decision not to call the other two Government witness who we coopted as character witnesses.

H.  Live Relatives Witnesses – Spouse, Children, Parents

It is important to have family members, especially the spouse, to testify about the importance of the Accused to the family dynamic and support.  This will show the Court how a potential sentence will affect innocent people involved.  The spouse should testify about how the family relies upon the Accused for financial support and that a discharge would have a negative affect on the financial well-being on the family.  This could include what the loss of income would mean about providing for the family to include loss of vehicles, loss of housing, loss of the ability to provide the basic necessities for the family, and how it would affect the children.  Sometimes, preparing a budget showing the exact loss of income from a discharge of the Accused or loss of rank is helpful to show the exact financial impact on the family — and specifics are much better than generalities.  If the spouse is a stay-at-home parent and takes care of the kids, showing that the spouse will have to seek employment and pay for child care is something that is important for the Court to consider.

In addition to the financial loss from confinement or discharge of the Accused, the spouse should talk about the hardships that he or she would encounter from being a “single parent.”  These difficulties should be discussed and thoroughly explained.  Depending on the age of the children, the spouse should discuss what disruption to the family the loss of the Accused would mean to the raising and care of the children.  The impact to the family from confinement and discharge of the Accused from the service should not be minimized — the spouse should address all conceivable affects of a potential sentence to the nuclear family.

In addition to the affect on the spouse and children, there is a negative consequence to extended family members, especially if the Accused is providing financial support to them.  Do not ignore the consequences to siblings, parents, and grandparents.  Consider having 2-4 family witnesses to testify about the affects a lengthy prison sentence or discharge would have on the larger family.  These witnesses are used to show the “ripple effect” of any potential sentence imposed on the Accused. 

I.   Medical and Behavioral Health Evidence of Extenuation and Mitigation

In the military, there is a likelihood that behavioral health issues and medical issues will be good extenuation and mitigation evidence.  With multiple deployments, many service members suffer from undiagnosed (or diagnosed) PTSD.  While it may not raise to the level of a defense, it certainly is a matter in mitigation.  There are several conditions that fall into this category, including alcoholism and drug addiction, depression and anxiety, traumatic brain injury, and other diagnosed mental conditions.  It is important to get this information before the Court for consideration during the Defense sentencing case.

1.  Live Doctor or Behavioral Health Witnesses

If the Accused is currently seeking behavioral health counseling, it is very important to discuss the potential sentencing case with the practitioner.  It is important to understand what is the diagnosis of the Accused, how it would affect the misconduct for which the the Accused was found guilty, and the prognosis of the Accused.  If the Accused is not seeing a behavioral health specialist, and you suspect a mental condition, PTSD, TBI, or alcoholism as a contribution factor to the offense, consider having your client seek treatment.  Getting a diagnosis could go a long way to mitigating the case against the Accused.  If the Accused is recommended for in-patient treatment, try to get your client to the program, whether for PTSD or alcoholism.  A successful competition of such a program would be very beneficial on a Defense sentencing case.

In our First Sergeant case, the Accused sought the care of a mental health care provider immediately after the incident with the parent who threw the flag at his daughter.  He was diagnosed with acute PTSD.  An interview with the provider revealed that the Accused’s trigger for PTSD symptoms was harm to his children, and this was based on his combat experiences in Iraq.  The provider testified that the Accused was recommended for a 12-week in-patient PTSD program, but he could not attend due to the scheduling of the trial.  The provider also testified that the Accused has learned effective coping mechanisms, and was being treated by a psychiatrist, and his use of prescription drugs has reduced the effect and consequences of his PTSD symptoms, including his overreaction to perceived slights to his children.  This testimony, combined with the positive prognosis and his continued treatment was a huge factor in the Court sentencing the Accused to no punishment.

2.  Introduction of Medical or Behavioral Health Records

Have the Accused get copies of all behavioral health and medical records documenting his diagnosis.  Thoroughly review these records to determine whether there are any harmful entries in the records.  If the records support the testimony of the behavioral health counselor, introduce the records through the counselor for the Defense sentencing case.  This is easily done if the rules of evidence have been relaxed for sentencing, and bolster the in-court testimony of the counselor.

J.  Evidence of Rehabilitation and Potential

While the rules provide that the Government can introduce evidence of rehabilitation potential, the Defense can also introduce such evidence through its character witnesses by asking if the Accused has the potential to be restored to a useful place in society (or the unit) after completing the sentence imposed by the Court.  Be careful, because this evidence could open the door for evidence that the Accused should not return to the unit and has no place in the Army.

K.  Evidence of Remorse and Apologies to Victims

In some cases, without being advised by counsel, the Accused will have apologized to the victims either in writing, text, or in person.  Sometimes, these apologies are recorded as part of a pre-text call or text.  While these apologies may tend to show a level of guilt on the merits, they can be considered mitigating factors on sentencing.  Do not overlook apologies that are made by the Accused to the victim of his crimes before the trial and make sure the Court is aware of such apologies in the Defense sentencing case.

How Should the Defense Organize the Defense Sentencing Case for Maximum Impact?

The Defense should consider the order to introduce the evidence to maximize the impact of its sentencing case.  The Defense should start strong and end strong on the sentencing case.  We recommend that the Defense should introduce all the documentary evidence (except those that will be introduced through witnesses) first, and then call in-court witnesses.  The Government will likely object to some of the documentary evidence, requiring the Defense to request the Court to relax the rules of evidence.  We recommend the character witnesses testify first, with the strongest character witness testifying first, followed by family witnesses, and concluding with behavioral health witnesses who can provide an explanation for the Accused’s behavior.  This will allow the Defense case to flow smoothly from those who know the Accused well, to the family, and then to his health care providers, creating a complete picture of the Accused.

How Should the Defense Argue for an Appropriate Sentence?

Once all the evidence in the Defense sentencing case is introduced, the Defense should consider what an appropriate sentence should be under the circumstances.  This must be done in coordination with the Accused because the Defense speaks for the Accused when requesting a specific sentence.  The Defense should utilize the sentencing factors in the Military Judges Benchbook when formulating its sentencing argument.  The factors include punishment of the Accused, protection of society from the Accused, good order and discipline, deterrence both of the Accused and those who know of his offenses, and rehabilitation of the Accused.  The Defense should fashion the argument to demonstrate all of the sentencing factors are achieved with the lowest sentence possible.  In our First Sergeant case, we started the sentencing argument by informing the military judge that we were seeking no punishment, and went through the sentencing factors showing how each were achieved with no further punishment.  Defense counsel should address all of the evidence it offered during the Defense sentencing case as evidence of achieving the goals of these factors.

With adequate planning and preparation, the Defense should be prepared to put forth the best possible Defense sentencing case even in those cases where it was believed that an acquittal was possible or even probable.  Defense counsel would be wise to approach sentencing with the same vigor as they approach the merits, and with appropriate preparation, should be able to minimize the impact of findings of guilty on the merits phase of the trial with a fair, just, and personalized sentence.

More about the Law Office of Will M. Helixon

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martial, adverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB process, adverse administrative matters, military justice matters, and legal assistance matters, including the correction of military records.  No longer in Kansas City, the firm now has a European office physically located in Vilseck, Germany.  Call us today to assist with your legal issue in Germany or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.

Law Office of Will M. Helixon – Germany, Hans-Ohorn-Platz 7, First Floor, 92249, Vilseck, Germany.

Germany +49 (0) 9662-293-8047

United States (913) 353-6466

Military Defense Attorney, Military Lawyer, Court-Martial Defense, Army Attorney The Law Office of Will M. Helixon - Over 50 years of military law experience.