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For over 200 years, soldiers in the United States Army facing court-martial could not help but feel the odds were stacked against them. Although they were assigned defense counsel, their attorneys came from the Staff Judge Advocate’s office—the same office that initiated the actions leading to the court-martial and the need for representation in the first place. And while soldiers did have the option of hiring an attorney from the civilian sector, it also meant their counsel would not be intimately familiar with the intricacies of military law and the court-martial system.

The Officer of the Judge Advocate General did everything it could to assure soldiers they were being provided competent counsel seeking only the best outcomes for their clients. In 1939, for example, The Judge Advocate General Allen Gullion issued a memorandum making it unequivocally clear the trial judge advocate—the prosecuting attorney—should “conduct himself not as plaintiff’s attorney intent up winning for the upon winning for the side he advocates, but as a sworn and impartial member of the court, and should charge himself with the fair and impartial trial of the accused whom he is bound to protect as well as to prosecute.”

Nonetheless, the fact that the prosecuting and defense attorneys in a court case came from the same office had the potential to create the wrong perception. In current parlance, the optics were not very good.

To ensure that Soldiers accused of infractions serious enough to warrant a court-martial received due process, an experimental program called the U.S. Army Trial Defense Service (TDS) was launched in 1980. Though they still fell under organizational umbrella of the Judge Advocate General’s Corps, the attorneys in the TDS operated in a chain of command separate from that of the trial judge advocates. After a two-year test period, the Chief of Staff approved the establishment of the TDS as a permanent division of the United States Legal Services Agency.

Attorneys in the TDS are both military officers and practicing defense attorneys who’ve earned a JD from a law school accredited by the American Bar Association. Though members of the Judge Advocate General’s Corps, their performance is rated and supervised by their superiors in the TDS. They usually serve a two-year tour in the TDS.

TDS attorney offer a complete range of legal services for Soldiers accused of crimes worthy of court-martial or Article 15 punishment. They provide representation not only a courts-martial, but also during criminal investigation and at hearing and other procedures related to the accused’s alleged offense. Just as in the private sector, TDS attorneys and their Soldier-clients communicate with strict confidentiality.

The services offered by TDS do not extend to civilian employees of the Department of Defense or to dependents of Army personnel, nor do they provide representation in civilian cases.

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