Courts-Martial Defense
There are four levels of court-martial: summary, special, BCD special and general. The first three have a cap on allowable punishment and the general CM subjects an accused to any allowable punishment per the Uniform Code of Military Justice, UCMJ. A general court-martial begins with an Article 32 hearing and may end with an appeal for clemency or to the Court of Criminal Appeals. I have extensive experience defending clients at all levels and stages of the court-martial process.
Court-Martial Appeals
Military CMs may be appealed in various ways. An accused may appeal a summary CM by submitting an Article 69(b) appeal to the service Judge Advocate General. Special and general CMs may be appealed to the Court of Criminal Appeals and further to the Court of Military Appeals, or even the Supreme Court of the United States. CM sentences may be appealed for clemency only to the Board for Correction of Military/Naval Records. A bad conduct discharge from a special court-martial may also be appealed to the service Discharge Review Board for an upgrade. Denials from a BCMR/BCNR may be appealed to US District Court, who overturn BCMR decisions with frequent regularity. If you’ve received a denial or lost at any level, don’t give up, fresh eyes on a case often find mistakes that can make the difference.
Article 32 Investigation
These precede general CMs and are likened to civilian grand jury hearings. A non-attorney hears testimony and evidence from both sides and makes a recommendation about whether a case should go forward to a panel and at what level of court. Defense attorneys use these hearings to discover the government’s case and how potential witnesses will testify. It is important to have quality representation as it’s never too early to put your best strategy forward.
Article 69(b) Appeals
If you have been convicted at CM within 2 years, you may appeal to the service Judge Advocate General (TJAG). Service TJAGS have the authority to grant clemency, a new trial, or to overturn a case. You may have a better chance of success, since this type of appeal is not restricted to legal error and may revisit the facts of a case.
General Officer Representation
General Officers are frequent and easy targets for Inspectors General and may find their careers derailed as a result of anonymous complaints with very little basis in fact. Complaints are often politically motivated and GOs may have difficulty obtaining witnesses and representation because of the appearance of undue influence and conflict of interest. It is important to contact an attorney at the earliest possible stage to avoid a letter of reprimand and potential reduction by a grade determination board.
UA/AWOL/Deserter
A military member who leaves his authorized place of duty without proper permission is guilty of an offense under the UCMJ. However, unauthorized absence may be mitigated by any number of factors and it is very important to make a good case. An individual who leaves and indicates no intention of returning is a military deserter. Technically, in time of war, the maximum punishment for desertion is death. That’s not going to happen, but the federal authorities will be alerted and if you are stopped by law enforcement for any reason you will be arrested and returned to military control. It is much better if a member returns on his or her own and often the worst punishment is an administrative discharge. Contact an attorney to determine the best place to turn yourself in, negotiate your legal exit from the service and avoid a court-martial or jail time.
Positive Urinalysis/Drug Offenses
If a military member tests positive for a controlled substance or is targeted in a sting operation, he or she generally receives an Article 15 or non-judicial punishment followed by an administrative separation. The goal for most is to either remain in service or receive an Honorable discharge but this usually cannot be accomplished without an administrative separation board. Most are entitled to a hearing and it is imperative that the member takes advantage of all rights. Leaving the service with an Other Than Honorable discharge (OTH) can deprive a member of all VA rights, to include medical care. Representation by an attorney at the Article 15 stage and certainly at the hearing can go a long way to achieving the desired outcome. Don’t be intimidated into waiving your rights as it will negatively affect the rest of your life!
Sexual Assault
This is a hot button issue in the military today and any allegation that is sex-related will be prosecuted to the fullest extent – often no matter how flimsy the evidence. A military conviction for sexual assault may subject the discharged member to lifelong sex offender registry and make it very difficult to obtain employment. If you are questioned by any person concerning a sex-related allegation, do not make a statement and call an attorney immediately! Many accused are convicted at court-martial based on their own statements without any other credible evidence.
Article 15/NJP/Captain’s Mast
The options of probation or deferred adjudication are not available in the military but an Article 15, UCMJ serves a similar purpose. Meant to be used as a training tool for minor offenses, the Article 15 has become the precursor to administrative separation in many cases. The standard of proof is thought to be “beyond a reasonable doubt” since a member can turn down an Art 15 and request a court-martial. Unfortunately, the presiding fact finder is not a judge but a commander, with no specific knowledge of the law. Mistakes at Art 15 are extremely common. There is no right to representation but commanders will generally allow civilian defense attorneys be present to assist the member in presenting the case. In my mind, having an attorney present at an Art 15 is an important check on ignorance of the law or even abuse of discretion, and can set the stage for a successful administrative separation board.
Correction of Military Records/Discharge Upgrade
Each branch of the service has a board that corrects military records (BCMR/BCNR) and one that reviews discharges and makes changes to the DD214 (DRB).
The DRBs are manned by active duty senior members, 05/06, and will conduct a paper review or a personal hearing upon request of the member. The scope of the board’s authority extends only to making changes on the DD214, to include upgrading the characterization of service and changing the narrative reason for separation, separation code and authority for separation. If a member needs an upgrade or change to the reason for separation in order to secure employment or VA benefits, I would strongly recommend requesting a personal appearance, even if you have to travel. The likelihood of success is good even if you were turned down on the paper review. The hearing enables the board to ask questions and get to know you and often results in a positive outcome.
The BCMR/BCNRs are manned by senior government civilians serving in a part-time capacity. They have broad authority to correct records, to include removing documents, awarding medals, adjusting time in service, granting retirement, granting promotions, and reducing court-martial sentences. Unfortunately, the boards have come under increased scrutiny and criticism for not following the law and abdicating their responsibilities to administrative assistants. Currently a class action suit is underway against the Army BCMR that will hopefully result in positive changes. The BCMR/BCNR do not publish statistics but cases may be found on the Air Force Reading Room page at www.board.law.af.mil. Recently, the Secretary of Defense instructed the boards to give special attention to misconduct cases where the accused had been diagnosed with PTSD, particularly those from the Vietnam Era. If your case involves a mental health issue, even peripherally, this may be a very good time to apply to the board.
Administrative Separation/Show Cause/Board of Inquiry
Military members have a right to request a hearing prior to separation if they have been recommended for an Other Than Honorable discharge (OTH) or have 6 or more years’ time in service. The board consists of 3 senior members and is tasked with determining whether an offense occurred, whether separation is appropriate and, if so, what characterization of service. The Navy/Marine boards may also determine retirement grade, if eligible. The member is entitled to representation, the right to testify, call witnesses and present evidence. The government is represented by a trial counsel that presents the government’s case. Since considerable money and benefits are at stake, it is important to have the best possible representation. Weight the cost of hiring an attorney against the potential GI Bill benefit or VA medical treatment, ratings, and compensation. In most cases, it’s well worth it.
Bar to Reenlistment
A member may be barred from reenlisting for any number of reasons, either locally or by the Department Secretary. Bars may be appealed and the member generally cannot get assistance from an active duty defense attorney and may not know the law well enough to draft his or her own appeal. A good appeal may be able to get the bar lifted or postponed and keep the member in service.
DFAS Debt Dispute
Dealing with the Defense Finance and Accounting Service may leave the member feeling like they have entered the Twilight Zone or are a character in a Kafka novel. You simply can’t get a straight answer and you are not alone. Frequently, your Congressman can’t get a straight answer either. Your only hope if you believe you have been wrongly notified of a debt to the government is to contact an attorney. If a case has merit, an attorney in the General Counsel’s Office may review it and render an opinion. You may also appeal in some cases to the Defense Office of Hearings and Appeals (DOHA).
DASEB/MMER
The Department of the Army Suitability Evaluation Board and the Marine Manpower Management Evaluation Review conduct reviews of performance evaluations and may remove the document or return it if it is not an accurate reflection of the member’s performance or violates regulations. Military defense attorneys will not assist in these appeals and legal assistance attorneys may not have adequate expertise to present an effective case. A bad performance evaluation can permanently damage a career and subject the member to separation for quality management purposes. These boards are also necessary precursors to appeal to the Boards for Correction of Military Records. Without assistance by an attorney, members often make unnecessary admissions or fail to include evidence needed to overcome the burden of proof.
VA Disability Claims
The Department of Veterans Affairs has the authority to rate and potentially compensate military veterans whose medical conditions were either incurred or exacerbated (made worse) during a period of military service. Ratings range from 0 to 100% depending on severity and impact on quality of life. A greater than 50% combined rating entitles the veteran to receive monthly tax-free compensation from the VA. If you believe that your rating was inaccurate, you may appeal the decision. In most cases, inaccurate ratings are the result of lack of knowledge of the system by the veterans and lack of sufficient documentation. An attorney can assist at any point in the process and the veteran can also receive assistance from the Disabled Veterans of America (DVA).
Article 138 Complaint
If a member believes that they have been wronged by his or her commander, they may file an Article 138 Complaint. This appeal is to the commander two levels up the chain and is for the purpose of describing the wrong, requesting relief and gaining visibility. A 138 is appropriate if you believe that your commander has harmed you by violating regulations or committing misconduct or an abuse of discretion. These can be very effective and sometimes even the threat is enough to secure relief, particularly in the reserve component where units are spread out and senior commanders lack direct control.
ROTC/Military Academy Disenrollment
This is another area where mistakes and denials of due process are common. University programs are often unaware that cadets are entitled to attorney representation at the disenrollment hearing and the local ombudsman is not trained in advocacy skills. If a cadet is disenrolled and does not enter the service he or she may be forced to repay the entire cost of the education, as well as transfer to a new school.
Advice on SCRA and SBP
The Servicemember’s Civil Relief Act and Survivor Benefit Plan have far-reaching implications in many areas of law. Attorneys practicing in the areas of estate planning, divorce, landlord/tenant, and child custody may need the assistance of a military attorney in order to successfully navigate these complex pieces of legislation.
Marital and Family Law
The US Former Spouses Protection Act and the formulas for divisibility of military retired pay, particularly for reserve members, can be daunting and unfamiliar to many family and divorce lawyers. I consult with family lawyers to provide advice and assistance on the military system and legislation that affects service members and their families.
Medical Evaluation Board/Physical Evaluation Board
The Integrated Disability Evaluation System (IDES) was instituted to avoid duplication of services and disparity in ratings between the military services and the VA. If an individual receives a decision from the service Physical Evaluation Board, they may appeal to the service Formal Physical Evaluation Board where they may be represented by an attorney. The board may not alter the ratings provided by the VA, but may alter the list of unfitting medical conditions thereby increasing the overall rating and possibly qualifying the member for permanent medical retirement. The board may also find that the member is fit to remain in service and continue working toward retirement. This is a very complex system and only an attorney experienced in IDES and trying military medical cases should be retained. I have a background practicing worker’s compensation law and a master’s degree in clinical psychology and have had significant success in gaining the desired result for my clients.
VA Educational Benefits
The new GI Bill has many benefits not available to members previously, particularly the right to transfer the benefit to their dependents. However, applying for benefits may be complicated and many veterans are turned down the first time they apply to the VA. If you believe you have been wrongly denied benefits or told you could not transfer the benefit, contact an attorney to assist in explaining your rights and avenues for appeal. The BCMR/BCNR have granted benefits in cases where the member was unaware they needed to elect to transfer benefits before leaving the service.