With fewer Americans serving or having served, we find fewer government leaders with military experience. In the U.S. Supreme Court, for example, one-third of the more than 120 justices who have served on the Court over its history have served in the military. From 1972–2006, half were veterans. Today, Justice Samuel Alito is the only justice who is a veteran, having served as a captain in the Army. It is no surprise, then, that what happens behind the gates of Fort Swampy and what makes military service unique are somewhat of a mystery.
The U.S. Army is the largest service, followed in personnel strength by the U.S. Navy, the U.S. Air Force and Space Force, the U.S. Marine Corps, and the U.S. Coast Guard. As of August 2024, 17.9 percent of service members on active duty are women and 82.1 percent are men. It is a force filled mostly by our country’s youth—slightly more than one-half are younger than the age of 25. In the U.S. Marine Corps, upward of two-thirds of enlisted Marines are younger than 25, with some 17–18. In short, the military population is predominantly male, young, engaged in an aggressive and inherently risky profession marked by frequent deployments and stress, with a greater potential for substance abuse and self-medication, and more likely to engage in risk-taking and adolescent or impulsive behavior. It is exactly the target demographic profile at the greatest risk of driving while impaired.
The military does not wait for these service members to endanger their safety and the safety of others by driving while impaired. All Department of Defense components are required to implement impaired-driving-prevention programs that include education and training on underage drinking, developing a working relationship with local authorities, establishing notification procedures to state licensing agencies, and suspending the driving privileges for persons convicted of impaired driving caused by alcohol or drugs.
When prevention fails, and a service member is arrested for impaired driving, the focus shifts to legal accountability and administrative consequences, balanced appropriately with rehabilitation and treatment efforts. Jurisdiction under military law over a service member’s impaired-driving offense is determined solely by the defendant’s military status at the time of the offense. Solorio v. United States, 483 U.S. 435 (1987). A service-connection test is no longer required. Courts-martial are considered federal trials for double jeopardy purposes and are subject to the dual-sovereign doctrine, allowing federal and state courts to separately prosecute an individual for the same conduct without violating the Fifth Amendment’s double jeopardy clause. United States v. Stokes, 12 M.J. 229 (C.M.A. 1982). Although legally permissible, military policy based on principles of comity disfavors double prosecution. A member of the Armed Forces will not usually be tried by court-martial or nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) for the same act for which a civilian court has tried a service member.
If a service member is prosecuted for “Drunken, Impaired, or Reckless Operation of a Vehicle, Aircraft or Vessel” under Article 113, UCMJ, it may take the form of either a court-martial or nonjudicial punishment. The maximum punishment a military judge may impose for this offense at a court-martial is a bad-conduct discharge, confinement for six months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. If personal injury is present, the maximum allowable punishment increases to a dishonorable discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. Very few impaired-driving cases are prosecuted at a court-martial unless aggravating circumstances are present—for example, a crash fatality or serious personal injury, a repeat offender, child endangerment, or a greater charge such as larceny of a government vehicle.
It is more likely that a service member’s commander will adjudicate an on-post/on-base impaired-driving offense via nonjudicial punishment under Article 15, UCMJ. The available punishments under Article 15 include restriction, extra duty, reduction in rank, and forfeiture of pay and allowances but do not include confinement or discharge. Proceedings under Article 15 are also not considered criminal prosecutions, and punishment under Article 15 does not result in a criminal conviction. It is, therefore, possible that a subsequent impaired-driving offense in state court may not be viewed as a repeat offense. Accurate reporting to the state’s Department of Motor Vehicles or through military and civilian law enforcement agencies is critical. Instead of prosecution under military law by a court-martial or in proceedings under Article 15, many on-post/on-base driving offenses are referred to a U.S. magistrate. Here, violations of state traffic laws are made applicable to the military installation under the Assimilative Crimes Act, 18 U.S.C. § 13, and assimilated as federal offenses.
For off-post/off-base impaired-driving offenses, service member defendants appear in state, county, or traffic courts across the country. While states and localities adjacent to military installations see a higher percentage of DWI defendants, the highly mobile nature of military service makes it possible that a rural county court in Wyoming far from any military installation also may encounter a service member defendant traversing the area on leave, moving to another military installation, or en route to a temporary duty assignment.
How does the civilian court judge know the defendant is a service member? Obvious clues may be found in the case file or if the defendant (or their attorney, if represented) simply informs the court at an appearance. Other giveaway clues are if the defendant appears in uniform or addresses the court at ramrod attention with a “yes, drill sergeant, yes” response to the judge’s questions. For courts near a military installation, the defendant will likely be accompanied by their commander or supervisory sergeant, who will sit with a watchful eye in the back of the courtroom gallery.
On some occasions, however, the DWI service member defendant does not want the court to know of their military status and will go to great lengths to hide their military affiliation. Reasons for this include not wanting the commander, fellow service members, and the military establishment to know; not wanting to be listed as nondeployable while the DWI case is pending, often for long periods; and wanting to avoid the administrative sanctions that may be imposed by the military in addition to any sentence or penalties imposed by state or other civilian courts. Many courts have procedures and systems in place to determine the military status of any defendant. This is encouraged and often helps develop a more complete picture of the defendant or leads to a colloquy with the defendant to learn their branch of service, unit, and duty location as well as their rank, length of service, significant awards, and decorations, and whether they have sustained injuries or suffer from traumatic injuries or diseases.
It is also important for the civilian court judge to be aware of the possible administrative consequences imposed by the military for a service member impaired-
driving defendant. These are inherently administrative in nature and, therefore, are not dependent on criminal conviction. They may be imposed in addition to any civilian penalties or sentences rendered by state or civilian authorities:
- A suspension of favorable actions, commonly referred to as a “flag.” This prevents the service member from receiving favorable personnel actions such as promotion, schooling, and awards.
- “Unfavorable information” such as letters of reprimand or admonition. These may be filed in a service member’s local personnel file or permanently in their official file and will significantly reduce the service member’s potential for further career advancement in the military.
- Processing for administrative separation from the Armed Forces. This sanction varies by military service based on the underlying circumstances of the offense but typically involves two or more incidents of impaired driving during the service member’s career or two or more serious incidents of any alcohol-related misconduct within a 12-month period. At their discretion, commanders may initiate administrative separation proceedings for a first-time offense or refusal to submit to a lawfully requested alcohol measurement test. Administrative separation under “other than honorable” conditions or a general discharge can adversely affect the rights administered by the Department of Veterans Affairs and the Department of Defense establishments, as well as civilian employment prospects, throughout the service member’s life.
- Revocation of driving privileges on the base or installation.
- Revocation of pass privileges, limiting the service member to the confines of the military installation.
- Non-deployability. Service members pending civilian or military court action may be listed as non-deployable. If non-deployable for more than 12 consecutive months, they may be evaluated for further retention or administrative discharge. Temporary non-deployability of any duration can affect career progression, eligibility for certain assignments, and overall readiness.
- Administrative reduction in rank. Commanders can initiate an administrative reduction in rank for enlisted service members based on documented evidence of the service member’s deficiencies or misconduct.
- Bars to reenlistment. Service members enlist for defined periods of time, typically two, three, or four years, and must renew their periods of service. A bar to reenlistment prevents the service member from reenlisting for subsequent terms, thereby preventing the completion of a military career.
- Revocation of security clearance. This can severely limit career opportunities within the military or in the civilian sector after completion of military service. Depending on the service member’s military occupational specialty, it may result in reclassification to a different specialty or in discharge from military service.
- Referral to the military service’s substance abuse program. Each branch of service offers comprehensive substance abuse programs for its members. These include counseling, therapy, and treatment of substance abuse disorders and range from outpatient options to residential inpatient care or specialized treatment.
These possible administrative actions, alone or in combination, can be extremely stressful for the service member, impacting not only their but also their family’s stability. It can also affect their unit’s readiness, cohesion, and morale. While the service member is unavailable for duty because of their pending legal proceedings, counseling, or participation in rehabilitation or treatment programs, the unit typically operates with fewer personnel, with other members “picking up the slack.” This can lead to a loss of trust and respect among members of the unit, creating additional leadership challenges for the command.
All members of the military take an oath of office, a portion of which for enlisted members requires “obedience of the orders of the officers appointed over them, according to the regulations and the Uniform Code of Military Justice.” Violating the UCMJ and its article proscribing impaired driving means violating the service member’s oath. The military is also a values-based organization, and impaired driving runs counter to the values of military service and erodes personal and unit readiness.
When a military defendant appears in court for an impaired-driving offense, look behind the uniform. You will find a separate system of justice and accountability that has evolved over time to meet the demands of military service. You also will find a service member with a unique set of experiences and responsibilities that may be important to judges, who employ evidence-based sentencing to evaluate recidivism risk and make determinations regarding bail and probation. For example, in performing a risk assessment of the defendant, the service member’s age (likely to be young), criminal history (likely to be minimal because of required background checks and military entrance standards), and service record are important in determining the potential to reoffend. When considering criminogenic needs, substance abuse or mental health issues that may stem from military service might be considered as well as other service-related factors such as combat exposure, traumatic brain injury, post-traumatic stress disorder, and military sexual trauma. Protective factors that decrease the likelihood of reoffending include the military defendant’s employment and educational attainment (at least a high school education or equivalency for enlisted service members and college graduation for officers). Also important is the supervision of commanders, who are responsible for the service member’s health and welfare and will ensure compliance with court-ordered programs. Information about substance abuse or other treatment programs offered by the military also may assist the trial judge in determining appropriate interventions.
Armed with this information, judges can make determinations appropriate to the individual offender, improve safety on our nation’s roadways, and enhance the welfare and readiness of our nation’s fighting forces.