When a Soldier commits a UCMJ offense, it may be tempting for command teams to distance themselves from the situation, especially if the Soldier is being separated from the Army, but it is precisely in these circumstances that leaders must step up.

The DOD Annual Report on Suicide in the Military CY 2023 found that about a third (33.8%)of active- duty Soldiers who died by suicide in 2023 had administrative or Uniform Code of Military Justice legal problems, “such as nonjudicial punishment, under investigation or administrative separation,” in the year prior to their death.

“It is still a commander’s responsibility to … make sure that the Soldier is taken care of day-to-day regardless of what legal process they are going through,” said Col. Kevin Goke, the Deputy for Resilience at the Army Directorate of Prevention, Resilience and Readiness. “The command team is there to support the Soldier; the legal side is there to take care of the legal.”

“Our job as Trial Defense Service attorneys is to guide clients through the court-martial process,” said Maj. Sarah Bailey, Training Officer, Trial Defense Service.“ It is really up to the command team to stay involved and be responsible for Soldiers’ welfare; we don’t want defense (lawyers) to step into that command role.”

Bailey said that although legal professionals have an obligation to the welfare of their client, they are also limited by the rules of confidentiality in attorney-client privilege.

“This is critical to understand: We cannot break confidentiality unless someone clearly expresses an intent (of) suicide or harm,” she said. Bailey said attorneys representing clients can only break confidentiality in two circumstances: if the client indicates that they are an immediate threat to themselves or that they are an immediate threat to another person, at which point attorneys can take immediate action. However, getting Soldiers help with other personal challenges as they go through legal proceedings, such as financial, Family, behavioral health and other day-to-day needs, is the role of command teams.

“We have no mental health or legal assistance resources of our own, and we are not able to observe and monitor clients the same way a command team can,” Bailey said. “Put simply, we aren’t equipped to take the role of a command team in caring for a Soldier facing immense legal stressors.”

When the Suicide Prevention and Response Independent Review Committee, established by the DOD in 2022 to “address and prevent suicide in the military,” released its final report, the findings noted that service members under investigation could be considered a “high-risk subgroup warranting targeted prevention” efforts. The SPRIRC made several recommendations regarding these service members with pending legal issues, which are being actioned at the DOD level. Meanwhile, the Army has also taken steps to address risk in this subgroup. Suicide Prevention Program managers take a comprehensive approach at the installation level to connect command teams and Soldiers to helping resources, such as Behavioral Health and nonclinical services like chaplains and Military and

Family Life counselors, highlighting that these resources are also available if there is a need when Soldiers are involved in legal proceedings, Goke said.

The Army’s annual suicide prevention training identifies legal involvement as one of the risk factors for suicide. Additional factors that increase suicide risk include relationship problems, work setbacks and medical problems, according to the Brigade and Battalion Commander’s Handbook for Suicide Prevention, published by the Center for Army Lessons Learned and written by experts at DPRR.

The suicide prevention handbook outlines leader responsibilities in mitigating suicide risk and states that commanders and first sergeants should be “closely monitoring medical and legal actions as known risk factors” for suicide.

One tool available to Commanders to monitor the overall risk picture for a Soldier is the Commander’s Risk Reduction Toolkit, which consolidates Soldiers’ individual information, tracking up to 40 risk factors, including administrative and legal action, to identify their potential for high-risk behavior.

When a Soldier is going through legal action and also experiencing additional life stressors, it warrants even closer attention from the command team, and the first step is a conversation with the high-risk Soldier, said Goke.

The Army’s Lethal Means Safety Toolkit and Awareness Materials provide conversation guides for commanders to talk to high-risk Soldiers about safely storing their personally owned firearm. Firearms are the leading method used in suicide deaths across the military.

Soldier Resources

Soldiers have several ways to seek help if legal proceedings are becoming overwhelming. The Brandon Act gives Soldiers the right to, at any time or in any place, directly request a mental health evaluation by asking a Commander or Supervisor, E-6 and above. The request is confidential, and Soldiers are not required to provide a reason for the request.

“What the Brandon Act, in essence, does is … it requires the commander to facilitate a referral to the MTF (military treatment facility) or (mental) health care resources,” said Goke.

Soldiers can also reach out to a military mental health provider without going through a supervisor or seek help from Military OneSource, which provides confidential, nonclinical counseling.

At any time, a Soldier who is under investigation or thinks they may be under investigation can reach out to their installation’s Trial Defense Service office and ask for a suspect rights consultation, Bailey said. While some offenses within the military justice process can be relatively minor, like an Article 15 for missing PT formation, other times the criminal offenses committed by a Soldier can be serious, and the emotional and career repercussions of those crimes can impact leaders and the Soldiers in the unit.

The SPRIRC noted “that service members under investigation are often ostracized by their peers, increasing their sense of isolation and undermining a core source of social support.”

However, command teams have a duty to set aside the negative emotions they may feel about the charges a Soldier is facing and to focus on their job as leaders, said Goke.

“Commanders look at risk and their job is to mitigate risk,” Goke said. “Transitioning the Soldier to the civilian sector may be seen as risk mitigation, but through that separation process, what can be lost is the Soldier—and they are still a Soldier until the day they take the uniform off.”

“Commanders have broad legal authority and responsibility to take action for suicide prevention when their Soldier is identified as at risk,” said Maj. Cathy Hartsfield, Associate Professor of Criminal Law at The Judge Advocate General’s Legal Center and School. Commanders should consult with their legal office to understand their authorities and responsibilities per Army and DOD policy.

If you’re thinking about suicide, or know someone who needs help, call 988 and press 1 for the Military Crisis Line.