Ruth's Truth #16: Service of Process on Military Bases and Subpoenaing Witnesses

After almost 30 years of being a lawyer, just when I think "I've got this, it should be no problem" I realize how much I still have to learn. Recently, while helping a survivor in civilian court, I slammed into a wall that every attorney will hit when there are concurrent military and civilian investigations and proceedings and you need to serve or subpoena someone and/or subpoena documents. Some lessons learned:

Lesson #1: You Cannot Force Service on Base

A servicemember or a dependent who lives on base can legally refuse service. SJA offices and Commands can try to facilitate, but they can't compel anyone to take the papers. Real Life: I ended up having to get someone to serve the person off base, which required some PI skills I did not know I had.

Lesson #2: Subpoenas? Not Without the Touhy Dance

If you need testimony or records, your subpoena means nothing until it goes through the different paths with a full Touhy request. All military departments follow the same legal framework, but each branch has its own implementing regulations and processes. They want everything: case posture, relevance, Privacy Act issues, estimated time. All this takes a lot of time. The 5-day service rule applicable in many states does not apply here.

Lesson #3: Ongoing Investigations Shut Everything Down

If a Military Criminal Investigative Organization (MCIO) is involved, access to witnesses or information becomes impossible until the investigation is done.

Tips

• Try to coordinate service of process with the SJA, but serve off-base when possible. Document your attempts. If a witness who lives on base won't accept service, see if they are willing to testify voluntarily/remotely.
• Start your Touhy request before the court even asks.
• Tell the judge early if there is a military investigation going on, and explain the processes and challenges.
• Keep the victim centered, ensure they have military and civilian victim advocate/victim counsel support, and communicate with all — despite procedural delays.