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In Weisbeck, the Court of Appeals for the Armed Forces addressed the question of a delay in trial after the accused hired a civilian counsel. This is a case your military defense counsel should be aware of. The case does not hold that a delay is automatic, but it does outline how an accused may make arguments in his favor.

An important point is what happens when the prosecution wants to offer evidence under Mil. R. Evid. 404(b), and the defense needs time to investigate and respond to that evidence.

United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) — Summary

Here is a summary of an interesting article about how the Army FAP denies a servicemember of due process, and recommending changes.

We at Cave & Freeburg, have represented many servicemembers caught up in the FAP.

Executive Summary

In United States v. Gree

The appellant contends that the military judge erred in admitting evidence of uncharged acts occurring seventeen months after the charged offenses to establish a common plan or scheme. He argues that this evidence was improperly admitted under Military Rule of Evidence (M.R.E.) 404(b) and that the judge did not conduct a proper M.R.E. 403 balancing test. Additionally, he asserts that the Air Force Court of Criminal Appeals (AFCCA) improperly substituted its reasoning by finding the evidence probative of wrongfulness and intent.

A. M.R.E. 404(b) Evidence

The “Don’t Ask, Don’t Tell” (DADT) policy, enacted in 1993 under President Bill Clinton, represented a compromise allowing gay, lesbian, and bisexual individuals to serve in the U.S. military provided they did not disclose their sexual orientation. This policy prohibited military personnel from discriminating against or harassing closeted service members but mandated discharge for those who openly acknowledged their homosexuality. While intended as a progressive step, DADT effectively institutionalized secrecy, leading to the discharge of thousands solely based on their sexual orientation.

The repeal of DADT in 2011 allowed LGBTQ+ individuals to serve openly. However, many veterans discharged under DADT or prior policies continued to face challenges due to “other than honorable” discharge statuses, which impeded access to military benefits and affected civilian employment opportunities. Their discharge paperwork often explicitly cited their sexual orientation as the reason for separation, perpetuating stigma and discrimination post-service.

In United States v. Deremer, 2025 CCA LEXIS 46, 2025 WL 427756 (N-M.Ct. Crim. App. 20 Feb. 2025), NMCCA decided that when an alleged victim has an SVC, the MCIO must notify the SVC of any interviews, especially those with intent to interrogate the “victim” about a false allegation.

The McOmber rule was based on the CMA’s interpretation of the right to counsel at the time. Following two Supreme Court decisions the Military Rules of Evidence were amended, and in United States v. Finch, McOmber was overruled because its constitutional basis was no longer good law and the Court of Appeals for the Armed Forces [CAAF] established that Mil. R. Evid. 305 governed Section 1044e and 10 U.S.C. § 1565b along with the accompanying DoDI and, in this case, the LSAM are congressional, departmental and service efforts to afford specific (and in some cases different or greater) rights to those in, or related to, the military who report that they are victims sexual assault.

United States v. Deremer, No. 202300205, 2025 CCA LEXIS 46, at *11-12 (N-M Ct. Crim. App. Feb. 7, 2025).