An Article 120 case, the UCMJ’s sexual offense provision, almost always begins with an investigation by a service criminal investigative organization. Before that investigation can use anything the suspect says, the government has to deliver the warnings required by Article 31 of the Uniform Code of Military Justice (UCMJ). This article walks through how that notification actually happens in practice during a sexual assault investigation: who gives it, when, in what form, and what it must contain.
What Article 31(b) requires the suspect to be told
Article 31(b) provides that no person subject to the code may interrogate or request any statement from an accused or a person suspected of an offense without first informing the person of the nature of the accusation, advising that the person does not have to make any statement regarding the offense, and warning that any statement made may be used as evidence against the person in a trial by court-martial. In an Article 120 investigation, the “nature of the accusation” must be identified to the suspect, which means the investigator has to tell the member, at least in general terms, that the suspected offense is a sexual offense rather than leaving it vague.
When the suspect is in custody, a second layer attaches. Under the Fifth Amendment and the rule recognized in United States v. Tempia, a custodial suspect must also be advised of the right to consult counsel before and during questioning and to have counsel present. Sexual assault interrogations frequently occur in settings that are or become custodial, so investigators routinely advise of counsel rights as well.
Who delivers the notification
The warning is given by the official who is going to do the questioning. In Article 120 cases that is usually an agent of the Army Criminal Investigation Division, the Naval Criminal Investigative Service, or the Air Force Office of Special Investigations. These investigative agencies handle felony-level offenses, including sexual assault, and their agents are trained to advise rights before any interrogation. A commander, first sergeant, or other person subject to the code who questions the suspect for a law enforcement or disciplinary purpose is equally bound to advise rights first.
When the notification must occur
The timing rule is that the advisement must come before interrogation or any request for a statement, not partway through. Once a member is a suspect, the warning is a precondition to questioning. In a typical investigation the agent identifies the member as a suspect, brings the member in for an interview, and delivers the rights advisement at the outset, before substantive questions begin.
A common pitfall is the unwarned preliminary exchange. If an investigator obtains incriminating statements before advising rights and then gives the warning and repeats the questioning, the earlier violation can taint the later statement. Proper practice is to advise first, which is why the written advisement is usually the first order of business in the interview room.
The form the notification takes
In practice, Article 120 suspects are notified through a standardized rights advisement and waiver process. The agent uses a service rights-advisement form that lays out the nature of the suspected offense, the right to remain silent, the fact that statements may be used as evidence, and, in custodial settings, the right to counsel. The agent reads or presents the rights, confirms the member understands them, and asks the member to indicate a decision. The form documents whether the member waives the rights and agrees to talk, or invokes the right to silence or to counsel.
The written waiver matters because it creates a record. At trial, the government must show that any waiver was made knowingly, intelligently, and voluntarily, and the executed advisement form, often paired with the agent’s testimony and sometimes a recording of the interview, is the principal evidence of that.
What happens when the member invokes
If the member invokes the right to remain silent, questioning about the offense must stop. If the member requests counsel during a custodial interrogation, questioning must cease until counsel is present, subject to the limited rules on reinitiation. Investigators in sexual assault cases are trained to honor an invocation, because continuing to question after a valid invocation risks suppression of whatever follows. The suspect can consult a defense counsel, and military defense services are available to advise the member before any decision to speak.
How notification interacts with sample collection and other steps
Article 120 investigations often involve collecting physical evidence, such as DNA swabs, photographs, or examination of clothing. Producing physical, nontestimonial evidence is not a “statement,” so the Article 31(b) warning is not the mechanism that governs those collections; they are controlled by the rules on searches, seizures, and inspections, and may require authorization or consent. The Article 31 advisement governs the questioning of the suspect, not the gathering of bodily samples or objects.
Bottom line
During an Article 120 investigation, a service member is notified of Article 31 rights by the questioner, typically a CID, NCIS, or OSI agent, who, before any interrogation, identifies the nature of the suspected sexual offense, advises the right to remain silent, and warns that statements may be used as evidence, adding counsel rights when the setting is custodial. The advisement is delivered through a standardized rights-advisement and waiver form that documents the member’s understanding and decision, and any statement is admissible only if the member’s waiver was knowing, intelligent, and voluntary.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.