When the family members of a service member facing court-martial are improperly targeted during the proceedings, whether through intimidation, retaliation, surveillance, or pressure designed to discourage their support or testimony, the military justice system offers several overlapping avenues of redress. The right remedy depends on who is doing the targeting, what form it takes, and how it affects the fairness of the trial. Some remedies protect the integrity of the court-martial itself, while others address the misconduct directly through criminal or administrative channels.
Unlawful command influence under Article 37
The most powerful protection arises when the targeting comes from someone in a position of military authority. Article 37 of the UCMJ prohibits unlawful command influence, including attempts to coerce or improperly influence the action of a court-martial or to intimidate or discourage witnesses. Conduct that pressures or frightens family members who are potential defense witnesses, or that is intended to undermine the accused’s defense, can constitute unlawful command influence even though the targets are family rather than the accused.
Where unlawful command influence is raised, the burden shifts to the government. The government must prove beyond a reasonable doubt either that the predicate facts did not occur, that they did not constitute unlawful command influence, or that the influence did not prejudice the proceedings. The remedies available to a military judge and to appellate courts span a full range. A trial judge may take curative steps, such as questioning panel members to determine whether they were affected and removing any who were tainted. In more serious situations the court may order other relief. On appeal, courts have discretion to tailor a remedy to the harm, including ordering a rehearing on sentence, ordering a new trial, or in extreme cases setting aside the findings. The guiding principle is that the proceeding must be free from both actual unlawful influence and the appearance of it.
Witness intimidation and obstruction of justice
Targeting family members who are witnesses can also be its own offense. Intimidating witnesses, tampering with their testimony, or otherwise impeding the administration of justice can be charged as obstruction of justice under Article 134, the general article. This provides a direct enforcement remedy against the person responsible, separate from any effect on the court-martial. A family member who is threatened to keep them from testifying, or pressured to change their account, is describing conduct the law treats as a punishable interference with justice.
Article 138 complaints of wrongs
When the improper targeting is carried out or permitted by a commanding officer and amounts to an abuse of command authority, the affected service member may pursue a complaint of wrongs under Article 138 of the UCMJ. The process begins with a written request for redress to the commander alleged to have committed the wrong, identifying the wrong and the relief sought. If the commander denies or fails to provide redress, the member may forward a formal complaint through the chain to the officer exercising general court-martial jurisdiction over the commander, who must examine the complaint and take proper measures. Commanders are prohibited from restricting the submission of such complaints or retaliating against those who file them. Article 138 is suited to administrative or personal wrongs and abuses of authority that fall outside formal disciplinary processes.
Protective measures within the trial
The court-martial itself can act to shield family members and preserve the proceedings. A military judge has authority to manage the conduct of the trial and the behavior of those participating in or connected to it. Depending on the circumstances, the judge can issue orders addressing improper contact with witnesses, restrict conduct that interferes with the defense, and ensure that witnesses, including family members, can participate without unlawful pressure. The defense can bring the misconduct to the judge’s attention through a motion seeking appropriate relief, supported by a clear record of what occurred.
Inspector general and command channels
Improper targeting can also be reported through the inspector general system and command channels. These avenues can prompt independent inquiry into misconduct or reprisal, which may run in parallel with the court-martial remedies. Where the targeting takes the form of reprisal against a protected communication, separate whistleblower-protection mechanisms may apply.
Building the record
Every one of these remedies depends on evidence. Because the consequences of improper targeting are evaluated against what actually happened, the defense should document the conduct contemporaneously: who acted, what was said or done, when, in front of whom, and how it affected the family member’s willingness or ability to participate. Affidavits, messages, and witness statements preserve the factual basis a judge or appellate court will require.
Choosing the right path
In a serious case these remedies are not mutually exclusive. Unlawful command influence litigation protects the fairness of the trial and can produce the most far-reaching relief, including reversal in extreme cases. An obstruction-of-justice referral targets the wrongdoer directly. An Article 138 complaint addresses command abuse administratively. Protective orders from the bench address the problem in real time. A service member whose family is being targeted should raise the issue immediately with defense counsel, who can decide which combination of these tools fits the situation and assert them while the record is fresh, because timely and well-supported objections are what convert these protections into actual relief.
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.