Office Of Special Trial Counsel

The Office of Special Trial Counsel (OSTC) is a separate, independent prosecutorial authority within the military justice system. It was created by Congress to remove the decision to prosecute certain serious offenses from the chain of command.

Under the traditional system, a service member’s commander — acting as the convening authority — decided whether to refer charges to court-martial. Under the OSTC framework, a Special Trial Counsel, who is a senior military attorney operating outside the accused’s chain of command, makes that decision independently. The commander no longer controls whether covered charges go to court-martial.

This is one of the most significant structural reforms to the Uniform Code of Military Justice in decades. If you are facing charges involving a covered offense, your case will be handled by the OSTC — not by your command. Having a court-martial defense lawyer who understands how the OSTC process works is critical.

For years, the military justice system faced criticism over how sexual assault cases were handled. Critics argued that commanders — who are not lawyers — should not make prosecution decisions in serious criminal cases. Reports of inconsistent charging decisions, the perception of command influence, and concerns about low conviction rates in sexual assault cases led to calls for reform.

Congress responded with the National Defense Authorization Act for Fiscal Year 2022 (FY22 NDAA), which stripped charging authority from commanders for certain covered offenses and transferred it to an independent Special Trial Counsel.

The OSTC became operational in phases:

• December 2022: Initial OSTC offices established

• 2023: Phased implementation across all military branches

• December 27, 2023: Full operational authority for all covered offenses

The reform applies military-wide across all branches — Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard — and is implemented uniformly through the UCMJ and the Rules for Courts-Martial.

The OSTC has exclusive authority over certain “covered offenses” — serious violent, sexual, and coercive crimes under the UCMJ. Once the OSTC exercises authority over a covered offense, it also has discretion over “known offenses” (any other offense allegedly committed by the same accused) and “related offenses” (offenses allegedly committed by a victim or witness to the covered offense).

Covered offenses under OSTC authority include:

• Article 117a — Wrongful broadcast or distribution of intimate visual images

• Article 118 — Murder

• Article 119 — Manslaughter

• Article 119a — Death or injury of an unborn child

• Article 120 — Rape and sexual assault

• Article 120a — Mailing of obscene matter

• Article 120b — Rape and sexual assault of a child

• Article 120c — Other sexual misconduct

• Article 125 — Kidnapping

• Article 128b — Domestic violence

• Article 130 — Stalking

• Article 132 — Retaliation

• Article 134 — Child pornography

• Article 134 — Sexual harassment (effective January 1, 2025)

Additionally, Article 80 (attempts) and Article 81 (conspiracy) to commit any covered offense also fall under OSTC authority. (U.S. Army OSTC)

These cases are typically tried at a general court-martial, which carries the most severe punishments under the UCMJ, including punitive discharges and lengthy confinement. For a full breakdown of maximum punishments, see court-martial punishments and sentencing.

The OSTC represents a fundamental break from the command-centric model of military justice. Under the traditional system, a commander served as the convening authority — deciding whether to refer charges, what charges to bring, and what forum to use. Under the OSTC framework, commanders can no longer overrule a Special Trial Counsel’s decision to charge, decline, or dismiss a covered offense.

Arguments in Favor

Supporters of the reform argue that independent prosecution decisions:

• Improve fairness and consistency in charging decisions

• Remove the appearance of command influence in serious cases

• Increase confidence in the military justice system, particularly among victims

• Align military prosecution with civilian prosecutorial independence

Critic Concerns

Critics of the reform raise concerns that:

• It weakens the commander’s authority over unit discipline

• It creates a “two-track” justice system — one for covered offenses and one for everything else

• It is too early to determine whether independent prosecution truly improves outcomes

Regardless of the debate, the OSTC is now the law. Service members accused of covered offenses face a prosecution process that is independent of their chain of command.

For an accused service member, the OSTC changes the dynamics of the case in several important ways:

• Earlier charging: The OSTC often makes charging decisions more quickly than the traditional command-driven process, which means less time to prepare

• More formal litigation: Cases are prosecution-driven rather than command-driven, resulting in fewer informal resolutions and more formal litigation

• Less command flexibility: Commanders can no longer resolve covered offenses through Article 15 NJP or other informal means — the decision belongs to the OSTC

• Independent prosecutor: The Special Trial Counsel is not part of the accused’s chain of command and has no stake in unit morale or retention — only in whether to prosecute

This means the defense strategy must be adapted. Early intervention by an experienced defense lawyer is more important than ever — not to engage with the convening authority, but to build the strongest possible defense before charges are referred.

The OSTC changed who decides whether to prosecute covered offenses. It did not change what the government must prove. The constitutional presumption of innocence, the government’s burden of proof beyond a reasonable doubt, the right to counsel, the right to confront witnesses, and the right to a fair trial — all remain unchanged.

The OSTC also did not change the maximum punishments available for covered offenses. A covered offense tried under OSTC authority carries the same maximum punishment as it would under the traditional system — the difference is who makes the charging decision, not what happens at trial.

What it does mean is that if you are accused of a covered offense, your case will be handled by an independent prosecutor, not your command. The most important step you can take is consulting with a court-martial defense lawyer who understands the OSTC process and can build your defense from the start.

What is the Office of Special Trial Counsel (OSTC)?

The OSTC is an independent prosecutorial authority within the military justice system, created by Congress under the FY22 NDAA. A Special Trial Counsel — a senior military attorney outside the accused’s chain of command — decides whether to bring charges for certain covered offenses. The commander no longer controls whether covered charges go to court-martial.

When did the OSTC become operational?

The OSTC became operational in phases beginning in December 2022 and reached full operational authority for all covered offenses on December 27, 2023. The reform applies across all military branches.

What offenses fall under OSTC authority?

The OSTC has exclusive authority over covered offenses including murder, manslaughter, rape, sexual assault, sexual assault of a child, domestic violence, kidnapping, stalking, retaliation, child pornography, and sexual harassment. Attempts and conspiracy to commit any covered offense also fall under OSTC authority. Once the OSTC exercises authority over a covered offense, it also has discretion over known and related offenses.

Can a commander overrule a Special Trial Counsel’s decision?

No. Under the OSTC framework, commanders cannot overrule a Special Trial Counsel’s decision to charge, decline, or dismiss a covered offense. The charging decision belongs exclusively to the Special Trial Counsel, not the chain of command.

Does the OSTC handle all military criminal cases?

No. The OSTC only handles covered offenses — certain serious violent, sexual, and coercive crimes. All other offenses under the UCMJ continue to be handled through the traditional command-driven process, where the convening authority decides whether to refer charges.

How does the OSTC affect my defense strategy?

The OSTC changes the dynamics of your case. Cases are prosecution-driven rather than command-driven, often resulting in earlier charging, more formal litigation, and less opportunity for informal command-level resolution. This means early intervention by a defense lawyer is critical — to build the strongest possible defense before charges are referred.

Can the OSTC add non-covered charges to my case?

Yes. Once the OSTC exercises authority over a covered offense, it also has discretion over “known offenses” — any other offense allegedly committed by the same accused — and “related offenses” — offenses allegedly committed by a victim or witness to the covered offense. This means non-covered charges can be pulled into OSTC jurisdiction.

What happens if I’m accused of a covered offense?

If you are accused of a covered offense, your case will be handled by the OSTC — not by your chain of command. An independent Special Trial Counsel will decide whether to refer your case to court-martial. These cases are typically tried at a general court-martial, which carries the most severe punishments under the UCMJ. You should consult with a court-martial defense lawyer immediately.