10/04/2026
A s*xual assault allegation the Office of Special Trial Counsel (OSTC) decides not to prosecute can get revived and court-martialed as assault consummated by a battery. That’s one example of the kind of serious case within the exclusive authority of OSTC that can be repurposed and relabeled Under the Uniform Code of Military Justice (UCMJ). The Court of Appeals for the Armed Forces blessed this maneuver on September 1, 2026, in United States v. Kruse. Prior to the Kruse case, an ambiguity existed under the UCMJ about what could be done with a deferred case.
In Kruse, OSTC initially had decision-making control over the case because it was a domestic violence allegation under Article 128b; domestic violence is one of the “covered offenses” belonging to OSTC. OSTC decided the evidence wouldn't lead to a guilty verdict and declined to prosecute, a process known as deferral. The command then relabeled the conduct as assault under Article 128, a non-covered offense, and sent the case to court-martial (along with other charges). The military judge threw out the assault charges, finding that conduct remained under the sole discretion of OSTC. The government appealed to the Navy-Marine Corps Court of Criminal Appeals (N-MCCA) and the military judge’s decision was reversed. The defense then appealed to CAAF, and CAAF affirmed the N-MCCA’s decision. In light of the Kruse case, the only thing a convening authority can't do after a deferral is refer the conduct to a court-martial as a covered offense. Relabeling as a non-covered offense is allowed.
What happens to a deferred case depends on the branch and on the command. Army commands take deferred conduct to court-martial more often than anyone else. Navy and Coast Guard courts-martial of deferred conduct are rare; they usually opt for an administrative separation. The Air Force and Space Force typically drop the case or go with a reprimand paired with an administrative separation.
OSTC goes out of its way to defer cases. It only wants the easy ones that won’t put its conviction percentage at risk. Defense attorneys need to engage with OSTC as early and as often as possible to provide context, exculpatory information, and reasons the case should be deferred. Especially in light of the Kruse decision, the defense needs to stay active even after deferral because the threat is still live and a court-martial remains possible. Doing nothing and assuming the danger has passed is the worst available choice.
Read more here: https://ucmjlawyers.com/court-martialed-if-ostc-declines-to-prosecute/
An OSTC deferral doesn't end the case. Learn how commanders can still court-martial, how each branch handles it, and what the CAAF ruling means.
