By Colonel (Ret) Doug O’Connell

As Soldiers and Airmen, we’re conditioned to immediately comply with orders. The lives of our battle buddies might depend on unhesitatingly following commands. Starting on the first day of basic training we learn to respect and obey military authority. We belong to a warrior culture that values concepts like duty, integrity, and candor. These character traits make us valuable members of our unit, but do little to prepare us to protect our own rights when accused of misconduct.

We all want to believe that our military family wouldn’t treat us unfairly or conduct a biased investigation void of integrity. However, time and time again defendants are faced with the sad truth that military investigations are not fair or just.

If you find yourself confronted by military law enforcement, this article is designed to provide an overview of your legal rights. Each situation is unique, with different facts and different allegations. This article isn’t legal advice; it’s a review of some of your basic legal rights. The laws applicable to your specific situation can depend on a variety of factors, which is why it’s important to consult with an experienced Military Criminal Defense Attorney regarding your specific situation.

Agreeing to Talk to CID/OSI Agents & Answering Questions

When military investigative agents contact you, their questions may seem harmless at first. Sometimes the agents will be asking about other Soldiers or Airmen. Gradually, the questions may become more pointed and focused on you. Some service members who spoke with agents later reported that they really didn’t understand that they could refuse to answer the questions. Some service members cooperate because they didn’t have anything to hide. Almost all underestimated the seriousness of the situation and failed to grasp that they were the targets of a federal investigation that could land them in prison.

The government’s ability to prove misconduct often turns on a suspect’s understanding of the rules or regulations at a given point of time or why the servicemember did or didn’t do something. Cases can be won or lost on the government’s ability to prove intent. In many cases, agents can’t prove the servicemember did something intentionally without obtaining a statement from the suspect.

You should seriously consider speaking with an Attorney before speaking with federal agents. Each situation is different but in most cases, I tell my clients to politely and respectfully inform the Agent that they will be happy to cooperate, but they want to speak with their Attorney first. A trained and conscientious agent will cease questioning once you state you want to talk to your Attorney. However, in some investigations unscrupulous agents have attempted to shame former service members into waiving their rights and providing answers. Statements like “if you didn’t do anything wrong, you should have nothing to hide” or “involving an Attorney will only complicate things and make you look guilty of something.”

Title 10 Agents Don’t Have Any Jurisdiction Over National Guard Service Members

Assuming you are in the National Guard, serving your State Title 32 (state) status, CID & OSI Agents lack inherent jurisdiction to compel you to do anything. Under the law, you’re like a civilian to Title 10 investigators. In other words, they can’t order you to answer their questions, or do things like turn over documents or emails. Unfortunately, because this is a technical legal distinction in an era of “One Military, One Fight,” your National Guard unit commander may not clearly understand this. Military commanders have broad authority to conduct investigations and compel Soldiers under their command to do certain things. However, your commander may not fully understand the nature of Title 32 status and wrongly order you to submit to the demands of Title 10 CID agents. Here again, an Attorney is crucial to helping to protect your rights. Your Attorney can help explain the law to your commander consult with state National Guard Judge Advocates (guard Attorneys) and or insist that the CID agents produce a search warrant. If you don’t have an Attorney, and you find yourself in a situation where your National Guard chain of command is ordering you to do something to comply Federal CID agents or investigators, then you should try to ensure everyone involved understands that you are not voluntarily complying, but only following the compulsory orders of your chain of command. Unfortunately, refusing to cooperate may put you at odds with your chain of command, or at least cast a shadow over your service. You may feel like the “right” thing to do is cooperate. At the end of the day, we all swore an oath to protect and defend the Constitution. Your individual Constitutional rights are part of that same oath of allegiance. And it may be better to protect yourself and be temporarily viewed in a negative light than voluntarily waive your rights and be convicted of a crime.
Polygraph Examinations.

Agents sometimes ask service members to take polygraph examinations. A polygraph or “lie detector” is a machine that measures physiological attributes such as blood pressure and heart rate. Supposedly, these machines can indicate if the answer to a question is deceptive or deceitful by monitoring the subject’s physical response when answering the question. The government’s polygraph examiner interprets the results and issues a report. Normally these reports are phrased in terms of “deception indicated,” “no deception indicated,” or “inconclusive.”

There are some important things you should think about before agreeing to take a polygraph test at the request of federal agents:

1. First, you should discuss this request with an Attorney before agreeing or scheduling an appointment for the test. An Attorney can help you sort through your individual situation, and help you weigh the pros and cons of submitting to a polygraph exam. Most Attorneys will insist on being present for the test and will probably request a copy of the questions to be asked ahead of time.
2. You’re United States citizen. As long as our Constitution stands, you are not ever required to prove your innocence. In other words, you shouldn’t feel compelled to submit to a polygraph exam in order to “clear your name,” or “eliminate yourself as a suspect.”
3. Polygraph machines are deemed so unreliable that their results are generally not admissible in Federal Court and most state courts. However, your statements made during or in conjunction with the test may be admissible and could possibly be used against you.
4. If the agents had enough evidence against you to proceed with a case, why would they waste time on a test that can’t be admitted into evidence?
5. It’s doubtful that the agents will allow you to choose your own independent polygraph examiner. They’ll likely insist on using an examiner at a major military installation.
6. Some people, regardless of veracity react poorly to the stress of a polygraph test. It has nothing to do with your fitness, strength or mental stamina. If you’ve never been through a polygraph examination, then you won’t know how you will react until your wired to the machine.

Reaching Out to Your Buddies for Support

If you’re the subject of an investigation, you may be confused, scared and feel vulnerable. Your instinct may be to look to your buddies and chain of command for support and reassurance. Likewise, you may think you can clear up the entire mess by explaining your actions. Both actions are risky. Talking to your buddies could potentially make them witnesses. You probably won’t know what the agents think you did that violated the law, so even seemingly innocent conversations with buddies and guard leaders might come back to haunt you. In the event you are brought to trial, it would be normal for government agents to ask members of your unit what you told them about the investigation. Likewise, reaching out to other Soldiers or Airmen involved in your situation may seem like a logical move. However, you’re risking a government accusation and potential charge of witness tampering. Your Attorney is the best person to contact witnesses.

“Lawyering Up”

You’ve seen this in the movies and on TV dramas. The cops (the good guys) are working hard to solve the heinous crime and all the evidence points to a prime suspect (the bad guy). To the great disappointment to the good guys, instead of breaking down under their brilliant questioning and confessing, the suspected perpetrator invokes his Constitutional right to an Attorney. On TV, the cops say things like the “perp lawyered up.” While this might be entertaining in a made for TV movie, it is an entirely different situation, when the government investigators are trying to prove you’re guilty of a crime.
The idea of “lawyering up” likely seems foreign to you. You may think only guilty people need lawyers. Likewise, you may think you can just explain everything and convince the CID agents of your innocence. Good luck with that. Our Constitution guarantees you the right to an Attorney when accused of a crime. You’ve literally pledged your life to protect and defend this same Constitution. You shouldn’t feel guilty or ashamed about exercising your right to an Attorney.

Each military installation has Trial Defense Service (TDS) or Area Defense Counsel. These are Judge Advocate (JAG) Attorneys who are assigned to provide advice and representation to fellow service members. If you’re currently serving you’re entitled to support from these Attorneys free of charge. If you’ve ETSed from service, the TDS/ADC Counsel will not be able to assist you. If you’re in the Guard and think you might be under investigation, call your state National Guard Headquarters and ask to speak with TDS/ADC. Since these Attorneys are traditional “part time” service members like you, it may a little while before you speak with an actual Attorney. In the meantime, it is perfectly legal to tell CID that you’ve called TDS or ADC and will wait to speak with your Attorney before talking to them.

Ultimately, if you’re officially charged with a crime in civilian court (indicted), you’ll have to hire an Attorney. Military JAGs can’t defend you in federal or state court. Depending on your income status you may qualify for a court appointed Attorney.

However, if you’re being investigated for a criminal offense, you may want to consider hiring a criminal defense attorney immediately. In some cases, an attorney can not only protect your rights but also help shape your options and potentially negotiate a resolution with the prosecutors before formal charges are filed.

Conclusion

Regardless of your level of involvement in an incident, if you come under scrutiny you must protect your rights. An Attorney can help but it will be up to you to take the steps needed to shield yourself from what could be a life-altering situation.

Colonel (Ret) Doug O’Connell is a Criminal Defense Attorney with over 30 years of experience. A former state and federal prosecutor, Doug represents service members across the country. His firm, O’Connell West, PLLC currently has offices in Austin, Killeen, San Antonio and Taylor, TX.

Unfortunately, it’s gotten to the point that it’s difficult to keep track of all the different types and reasons for military investigations, but here are just a few:  minor misconduct, Inspector General (IG) complaints, sexual harassment, reprisals, security infractions and classified data spillage, Equal Opportunity and Equal Employment Opportunity (EO/EEO) complaints, toxic command climate, safety and accidents, line of duty, property loss or damage, etc.

The problem, of course, is if you are the subject of the investigation, there are numerous repercussions possible, including a Section 15, removal from your position, derogatory comments on your Officer Evaluation Report (OER) or NCO Evaluation Report (NCOER), a General Officer Memorandum of Reprimand (GOMOR), financial liability, administrative separation, or even a court-martial.

Here are a few tips that I have gleaned from decades of advising clients and commanders:

1. Once notified you are under investigation, immediately write down your recollection of the relevant facts. Do not share your notes with anyone, except your attorney.
2. Despite what your boss or anyone else says, do not assume they have your best interests in mind or that they are only conducting an investigation “to document what happened and protect you.”
3. Get a copy of the regulation(s) that govern the particular type of investigation you are facing and educate yourself on the regulatory guidance.
4. Be extremely cautious when interacting with the person who made the allegation; if you outrank this person and take some sort of adverse action against him or her – even a negative counseling statement – you may end up facing TCMJ action for reprisal.
5. Decide whether you want to make a statement. If you do make a statement, when you meet with the investigating officer, make sure to let her know who else she should speak with and what additional evidence she should look for.
6. If you intend to hire an attorney, do not wait until the investigation is closed and you have been served with a GOMOR or other adverse action. A proactive attorney will take steps while the investigation is underway to protect your rights and ensure the best possible outcome.

Lieutenant Colonel (Ret) Scott Walters is a retired Army JAG and an attorney in the San Antonio office of O’Connell West, PLLC.  If you need a free legal consultation regarding a legal issue, call 512-547-7265.

Being in a car wreck can be a stressful and confusing situation.  The more traumatic the accident, the more taxing the aftermath will be.  Here are some tips to help protect your rights if you find yourself dealing with a serious collision.

Your immediate action will be to make sure everyone is safe and being cared for as needed.  Make sure you call the police – even if you think someone else may have already called.

Gather Information. Write down everyone’s name, contact information, and Insurance Company.  Make a notation is the person was a driver, passenger or witness.  Try to match people to the vehicles involved.  For example: “Felicia Smith, passenger in the Red Honda.”  Obtain the police officers names and employee numbers when possible.

Make Notes.  Record as much information as you can about the weather, road conditions, traffic volume.  Describe the damage to the vehicles. Make note of how many ambulances arrived at the scene, and number of EMS personnel. If you have observations about things like faulty streetlights or turn signals be sure capture those observations.  Did anyone take blame for the accident? If so, try to annotate specifically what they said. Consider using your voice recorder on your phone and try to do this as soon as possible after the accident.

Injuries?  Ask people involve if they’re injured.  Remember and note who describes injuries and who says “I’m fine.”  Was anyone taken to the hospital?

Take Photos!  Use your phone camera to take as many photographs as possible.  Try to focus on where vehicles ended up being positioned relative to the other vehicles involved. Photograph vehicle damage as much as possible, and look for skid marks or other indicators of breaking or lack of breaking.  If any of the vehicles appear to be commercial / business vehicles try to capture images that document the business name.  Take photos of license plates but make sure the photo identifies the vehicle the plate belongs to.

Watch What You Say!  You’ll need to contact your insurance company, but if you’re concerned that the accident might be your fault, talk to an Attorney first.  When you do speak to your insurance company, understand the call will be recorded.  If you are seriously injured and the accident was not your fault, it’s especially important to speak with an Attorney BEFORE you talk to any insurance company representatives.

Doug O’Connell is an Attorney representing people in serious personal injury cases.  If you have questions please contact Doug at Doug@OConnellWest.com or (512) 547-7265.

On October 4th the Army issued updates to Army Regulation 600-85, The Army Substance Abuse Program. Among other things, this regulation prescribes which substances are forbidden to be ingested by members of the United States Army, to include the Army National Guard. The regulation also prescribes procedures for conducting drug testing and Commander’s responsibilities for training and executing the substance abuse program.

One of the most significant changes in the recent update to AR 600-85, relates to Tetrahydrocannabinol Delta 8. Known as “Delta 8” this substance is a THC cannabis concentrate and is currently legal in Texas. Delta 8 is commonly found in convenience stores throughout Texas. However, the latest version of AR 600-85 bans Soldiers from ingesting Delta 8 by any means and adds this substance to the panel of substances tested for in Department of the Army urinalysis tests. As a practical matter, this means that Soldiers with a positive urinalysis sample for THC can no longer claim the positive result is from a legal form of THC.

The updated regulation also warns Soldiers to “make every effort to avoid” all food products with poppy seeds since newer seeds “may contain elevated levels of codeine” which could cause red flags during drug tests. Here again, the new regulations will make it more difficult for Soldiers to claim a poppy seed bagel caused the positive urinalysis, not an illegal substance containing opiates.

Among the other changes to the regulation, substance abuse prevention and deterrence training is now required. In addition, Unit Prevention Leaders are now called Unit Deterrence Leaders.

The current version of AR 600-85 retains the requirement that National Guard Company / Troop Commanders test 10 percent of their Soldiers each month with each Soldier tested at least once per year.

Retired Colonel Doug O’Connell is a partner at the O’Connell West, PLLC law firm. OC-West offers a Military & Veterans discount. If you need to speak with an Attorney, call 512-547-7265 for a free consultation.

Military service members facing civilian court criminal charges should approach deferred adjudication with caution, as it can have significant implications for their careers, security clearances, and future opportunities. While deferred adjudication may seem appealing—offering a chance to avoid a formal conviction—it often carries hidden risks that can disproportionately affect those in the military.

First, deferred adjudication is not equivalent to a dismissal or acquittal. It typically requires an admission of guilt or a plea, which will be treated as a conviction in military contexts. Military law and service regulations prioritize good order and discipline, meaning commanders will view such pleas as evidence of misconduct, even without a formal conviction. A deferred adjudication can also lead to administrative actions, such as non-judicial punishment, separation proceedings, or unfavorable evaluations, which can derail a service member’s career.

Second, security clearances are a cornerstone of many military roles. Deferred adjudication often appears on background checks, as it involves court supervision, probation, or other conditions. Clearance adjudicators may interpret this as evidence of untrustworthiness or poor judgment, especially for charges involving violence, drugs, or moral turpitude. A suspended or revoked clearance can limit job assignments, halt promotions, or force early separation, as many billets require clearance eligibility.

Third, military culture emphasizes accountability and integrity. Accepting deferred adjudication may be seen as sidestepping responsibility, which can erode trust among peers and leadership. Service members are held to a higher standard, and actions that might seem minor in civilian life—such as a deferred plea for a misdemeanor—can trigger disproportionate consequences in the military, including damage to reputation and credibility.

Finally, the long-term impact extends beyond active duty. Veterans seeking civilian jobs, especially in law enforcement or government, may face scrutiny over deferred adjudication records. These records, while not always convictions, can complicate background checks and licensing processes, limiting post-service opportunities.

by Doug O’Connell, Attorney at Law

Divorce in the military is a common occurrence. Multiple deployments and the stream of never-ending conflicts which national guardsmen and their families have to endure have taken a toll on the military family. When divorce is imminent, the parties must divide up the property in the estate and often, the military retirement is one of the most valuable assets in the community estate. Recognizing the value of the military retirement to the family unit, Congress provided the states authority to divide the military retired pay in divorce according to state law in 1982 by enacting the Uniformed Services Former Spouses’ Protection Act (USFSPA).

The USFSPA permits state courts to partition military retired pay in a divorce for pay periods after June 24, 1981. The portion of retired pay subject to division by the courts is called “disposable retired pay”. The USFSPA defines disposable retired pay as the total monthly retired pay less amounts waived to receive disability compensation and Survivor Benefit Plan premiums. Disposable retired pay may also include other less common deductions, but for the most part, the survivor benefit plan and disability compensation are the main “reducers” when calculating disposable retired pay.
Generally, a retired national guardsman becomes eligible to apply for a retired pay after he or she reaches the age of 60, and after the completion of 20 years of qualifying service under the point system. A “good year” for retirement purposes includes any year in which the servicemember accumulated at least 50 points.

Military retirements are often viewed as a windfall or leverage point in a divorce proceeding. In the case where a reserve component servicemember is seeking dissolution of marriage, he or she should be carefully informed about the potential division retired pay. Unfortunately, some attorneys mistakenly apply an automatic division of 50% of retirement benefits. If it is determined that a former spouse is to receive a portion of retired pay, the formula should consider the points accumulated only during the time the couple were married, as well as the rank of the military spouse at the time of divorce. Without these two considerations, servicemembers risk giving up retirement payments the former spouse may not otherwise be entitled by law.

Doug O’Connell is a retired Colonel who focuses on representing military service members, veterans, first responders and their family members. Call 512-547-7265 or email Doug@OConnellWest.com.