Military investigations frequently begin long before the subject of that investigation receives any formal notice. By the time a soldier learns that their name has come up in an inquiry, statements may already have been taken, records reviewed, and witnesses interviewed. The absence of official notification does not mean the process has not started. It often means the opposite.
The period before charges are preferred is also the period when the most important decisions can still be made. Evidence that exists in favor of the defense can be identified, preserved, and protected. Witnesses whose accounts support the accused can be documented before their recollections fade or their availability changes. Acting quickly in this window is not about getting ahead of investigators. It is about ensuring that the defense starts with the same foundation the prosecution is already building.
How Military Investigations Begin Without Formal Notice
Most UCMJ investigations begin with a report or referral, not with a notification to the subject. A complaint from another service member, a mandatory report from a commander, an anonymous tip, or the discovery of evidence during an unrelated inquiry can all trigger an investigation without any requirement that the person under scrutiny be informed at the outset.
Once an investigation is opened, investigators typically develop their case through witness interviews, records requests, digital evidence collection, and surveillance before approaching the subject directly. This sequence is deliberate. By the time the subject is contacted, the government often has a substantial evidentiary foundation already in place. The service member who learns about an investigation through informal channels and acts immediately has a narrow window to preserve options that will close the moment formal contact is made.
Signs That an Investigation Is Already Underway
By the time a service member learns informally that their name has come up, investigators have often already done substantial work. Fellow soldiers who have been interviewed may become suddenly distant. Supervisors who were previously direct begin giving vague or careful answers. A request for records that seemed routine turns out to have been connected to a larger inquiry. These shifts in the environment around a service member are not coincidental, and recognizing them for what they are creates the opportunity to act before formal contact is made.
Other signs include being asked by a peer about events from a specific date, receiving questions that seem tangentially related to a particular incident, or noticing that documents or equipment have been reviewed or inventoried without a clear administrative reason. None of these observations are conclusive, but any of them, particularly in combination, warrants immediate consultation with defense counsel.
What You Can Legally Do Before Charges Are Preferred
Before charges are preferred, a service member has significant freedom to act in ways that protect their interests without creating legal risk. Contacting an attorney is the most important of these steps, and it can be done without any notification to the chain of command. Identifying witnesses who have relevant information and ensuring their recollections are documented while they are current is another legitimate and valuable step. Preserving personal records, communications, and documentation that may be relevant to a defense is appropriate as long as it is done in a way that does not interfere with any existing preservation order or investigative hold.
What a service member cannot do is destroy, alter, or conceal evidence once an investigation is underway. The line between preserving one’s own records and obstructing an investigation depends on the specific circumstances, and counsel can advise on exactly where that line falls in any given case.
Protecting Existing Records Without Creating Obstruction Risk
The instinct to delete messages, remove documents, or otherwise clean up a digital or physical record when an investigation is suspected is understandable and dangerous. Investigators routinely examine deletion history, and evidence of deliberate destruction after an investigation begins can support an obstruction charge that is independent of whatever underlying offense is being investigated. The service member who destroys potential evidence while under investigation has created a second problem that may be worse than the first.
The appropriate approach is to stop creating new content related to the subject matter of the investigation, preserve what exists, and allow counsel to advise on what, if anything, should be proactively disclosed. Records that exist and are unfavorable can often be addressed through defense strategy. Records that were destroyed become an inference of guilt that is very difficult to overcome.
Why the Pre-Charge Phase Is the Most Important Window
Once charges are preferred, the government has established a formal record, and the defense begins from a position of responding to that record. In the pre-charge phase, the defense has the opportunity to shape the record before it is set. Witnesses who have not yet been fully interviewed can be reached. Evidence that supports the defense can be identified and preserved. The attorney-client relationship can be established in a context where the government’s case is not yet complete and certain avenues of investigation remain open.
Every day that passes in the pre-charge phase without defense involvement is a day the government uses to strengthen its case. The service member who acts immediately upon learning of an investigation is in a fundamentally different position than one who waits for formal notification. That difference often determines what options remain available when the case formally begins.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.