DUI in the Army
November 29, 2024DUI in the Army
This Article is intended to address a DUI in the Army.
Driving while intoxicated is illegal under the UCMJ; specifically, Article 113, available at this link. However, Article 113 of the UCMJ is rarely applied, as most DUIs in the Army are covered by State Law. For example, if a Soldier is arrested for driving while intoxicated outside of a base, the State Law will apply. Additionally, even if a Soldier is arrested for driving while intoxicated on base, State Law still generally applies.
If a Soldier is arrested for a DUI in the Army while driving off base, then he/she will be facing criminal charges in State Court. JAGs cannot represent Soldiers in State Court, and the Soldier in question will have to retain his/her own Civilian Lawyer. In most situations, the chain of command will already be aware of a Soldier being arrested for a DUI in the Army. However, if the chain of command is not aware, then, contrary to popular opinion, the Soldier in question does not need to immediately report his/her arrest to the chain of command. What is, and is not, required to be reported to the chain of command is explained more at this link. Additionally, Soldiers with security clearances should be aware of what is required to be reported to the Security Clearance Manager.
If a Soldier is arrested for a DUI in the Army while driving on base, then he/she will be facing criminal charges in the Federal Magistrate Court on post. Again, JAGs cannot represent Soldiers in the Federal Magistrate Court, and the Soldier in question will have to retain his/her own Civilian Lawyer. Any Soldier in this situation should go to the Magistrate Court and ask the Clerk of Courts for a list of lawyers licensed to practice in that specific court.
Any Soldier that is arrested for a DUI in the Army should recognize that his/her career is immediately in jeopardy. Any Soldier in this situation will likely receive a GOMOR, and could receive a referred OER/NCOER and face separation, either locally, or through the Army QMP Board. While it is rare for a Soldier to be Court-Martialed or receive an Article 15 for a DUI in the Army, it can happen. Most likely, a Soldier arrested for a DUI in the Army will receive a GOMOR; this is common practice at every Army base in the world.
The overwhelming majority of GOMORs that are issued for a DUI in the Army are filed in a Soldier's AMHRR; however, a good rebuttal can lead to the GOMOR being rescinded or locally filed. Additionally, even if the GOMOR is ultimately filed in a Soldier's AMHRR, a good rebuttal can prevent the chain of command from initiating separation (enlisted) or elimination (officers). It is imperative that a Soldier who receives a GOMOR for a DUI writes a good rebuttal to lessen the effects on his/her career. If expressing innocence, a good rebuttal should include proof that the Soldier in question was not legally intoxicated, such as eye witness testimony, credit card receipts, etc. If focusing on mitigation, a good rebuttal should highlight treatment completed, a change in habits, current sobriety, etc.
Most Soldiers do not realize that refusing a breathalyzer almost always results in the issuing of a GOMOR, in accordance with AR 600-85. Basically, refusing a breathalyzer is dealt with in the same manner as if a Soldier was arrested for a DUI in the Army for testing over the legal limit. Whether or not to provide a breathalyzer sample is a personal choice; however, it is easier to defend a Soldier arrested for a DUI in the Army that did not provide a sample as opposed to one who did, and tested over the legal limit.
Unfortunately, it is common for Soldiers to be arrested for a DUI in the Army. Soldiers live incredibly stressful lives, and alcohol is a common way to cope with this stress. While the Army purports to care about Soldier's mental health, Commands are quick to punish those who make mistakes related to mental health, like driving while intoxicated. A good rebuttal/defense can result in a Soldier being given a second-chance and minimize the effects on his/her career. Trial Defense Services (TDS)/Legal Assistance is available to assist any Soldier arrested for a DUI in the Army; however, they are typically inexperienced and overworked. Soldiers can hire a Civilian Lawyer, which allows him/her to hire a lawyer with a proven track record of success and extensive former client reviews.
This article was written by Attorney Matthew Barry, an experienced Military Defense Attorney who is highly rated by his former clients.
Attorney Barry has offices on the East Coast, West Coast, and the Central United States. Attorney Barry and his team will travel to any installation, worldwide, to represent a Servicemember accused of misconduct. He represents Servicemembers in the Army, Navy, Marine Corps, Air Force, and Coast Guard.