Areas of Practice - Military Law continued...
Whether you are facing Courts-Martial, a Board of Inquiry, Administrative Separation, or other adverse administrative action, your best line of defense is a well-seasoned attorney with significant, hands-on, military legal experience. The outcome of your case depends as much on the experience and judgment of your attorney as it does his courtroom advocacy skills. The military’s administrative and criminal litigation processes are complex and you need a lawyer who knows the system in order to provide you with the best legal advice. Attorney Mike Walther will give you an honest appraisal of your situation and if retained, will strive to secure the best possible resolution of your case.
Attorney Walther’s initial experience as a prosecutor and defense attorney began in the active-duty Air Force JAG Corps from 1984-1993, and continued with service as an Air Reserve JAG until 2003. In 2003, he transferred to the U.S. Army JAG Corps, serving in a variety of criminal law and national security law positions. In 2006, he mobilized to active duty and served in Iraq on the staff of the Multi-National Corps – Iraq, as legal advisor to the Future Operations Staff. In mid-2007, he was transferred to the staff of General David Petraeus, Commander of Multi-National Force – Iraq, and served as Director of the Law and Order Task Force, helping to restore the Iraqi criminal justice system. From 2010 until his retirement in 2012, Lieutenant Colonel Walther served as a military judge, presiding over the trial of U.S. soldiers and helping to train Army prosecutors and defense attorneys.
Office Manager and Paralegal Marla A. Walther supervised U.S. Air Force legal offices in Wyoming, Italy, and Mississippi before her retirement from active duty as a senior noncommissioned officer. Her expertise in military justice and administrative law matters further insures that the clients of Walther Law P.C. will receive thoughtful, sensitive, and zealous representation at every stage of the military proceeding.
Choose from the list below to see a short summary of what you might expect to happen if you are suspected or accused of a military offense. You should also explore our list of Frequently Asked Questions, and contact us for a free consultation regarding the specifics of your case.
In the military, non-judicial punishment may be imposed by a commander as a means of dealing with minor violations of the Uniform Code of Military Justice (UCMJ). The term “Article 15,” comes from the authorizing provision of the UCMJ, and some services employ other shorthand terms such as “NJP,” “Captain’s Mast” or “Office Hours” to refer to the same legal authority and process. While non-judicial punishment is administrative in nature, it can still have a profoundly negative impact on a military member's career. Therefore, if you have been offered non-judicial punishment, we encourage you to contact Walther Law for a free consultation to discuss your options.
Non-judicial Punishment Proceedings/Article 15 OverviewWhen a military service member is “offered” non-judicial punishment, the commander is essentially notifying the member that he or she is suspected of having committed an offense under the UCMJ. The “offer” of non-judicial punishment presents the member with a choice: accept non-judicial punishment from the commander, or decline non-judicial punishment and demand trial by court-martial. Service members ordinarily have the right to consult with counsel before making this important decision.
If you decide to accept non-judicial punishment, you lose your right to demand trial by court-martial. However, it is not an admission of guilt. Agreeing to accept non-judicial punishment simply means you agree to allow the commander to serve as your judge and jury – determining your guilt or innocence and, if appropriate, your punishment. Once you “accept” the Article 15, the imposing commander must listen to your side of the case (should you decide to present any matters in defense, extenuation, or mitigation) before making a final decision. You may present witnesses or other evidence (statements, police reports, etc.), and may personally address the commander. Your evidence and statements may demonstrate your innocence of the alleged offense, suggest the offense was less-serious than alleged, or urge the imposition of a less-severe punishment. You may also choose to remain silent and accept whatever punishment the commander metes out.
The rules regarding whether a lawyer can be present to assist you in making your presentation to the commander is service dependent. However, the general rule is that you may have someone – typically a supervisor or fellow-service member – speak on your behalf. You also have the right to have witnesses testify on your behalf. These may be either “fact” witnesses or “character” witnesses. A fact witness is a person who can testify or provide evidence tending to show that you are not guilty of the offense alleged. A character witness is someone who will testify that you are a “good soldier” and, thus, unlikely to have committed the offense alleged. Alternatively, the character witness might testify that, even if you did commit the offense, you should receive little punishment and restored to duty. If a witness cannot be personally present to address the commander, written statements and other documents can be presented.
After all the evidence has been received, the commander will decide whether you committed the offense alleged. If the commander decides that you are not guilty of the offense, the proceeding ends. If he or she concludes that you committed the offense alleged, the commander will then determine what punishment should be imposed. As noted above, you may present evidence in extenuation and mitigation to influence the commander’s decision as to an appropriate punishment. Matters in extenuation serve to explain the circumstances surrounding the offense. Matters in mitigation are introduced to lessen the possible punishment you might receive because of your personal situation, service record, acts of bravery, reputation, etc. If a service member has a tenuous personal situation; for example, if married with children, it is especially important to provide the commander with evidence of your family’s financial situation and what impact rank reduction and forfeitures would have on your spouse and children.
Maximum punishments which may be imposed upon enlisted personnel under Article 15 vary depending upon the rank of the commander imposing the punishment:
Field Grade Article 15 (Imposed by a Major/Lieutenant Commander or higher)
Restriction: 60 days, or if combined with extra duty, 45 days
Extra duty: 45 days
Forfeiture of pay: one-half basic pay for 2 months
Reduction in Grade: E-4 or below may be reduced to E-1; E-5 and E-6 may be reduced one pay grade if the officer imposing the punishment has the authority to promote to E-5 and E-6. Reduction for E-7 and above varies depending upon service.
Restriction: 14 days
Extra duty: 14 days
Forfeiture of pay: 7 days basic pay
Reduction in Grade: E-4 or below may be reduced one grade. No reduction for E-5 or above.
Individual service regulations vary somewhat on the implementation of these rules. Punishment options are different for commissioned officer non-judicial punishment actions. Moreover, the imposition of non-judicial punishment on a commissioned officer is generally seen as career-terminating.
Sometimes, an imposing commander may decide to “suspend” the non-judicial punishment in much the same way that a civilian criminal court might suspend all or part of a sentence. Simply put, after determining a punishment, the commander suspends enforcement of the punishment for a set period of time to allow the service member to demonstrate that he or she has “learned their lesson.” If the member completes this set period of time without further misconduct, the punishment will be dismissed. However, should further misconduct occur (even very minor misconduct) during the period of suspension, the suspension will be lifted immediately and the punishment will be fully imposed as initially decided. Unsuspended punishments typically begin immediately upon a finding of guilt.
The member may appeal the commander’s Article 15 decision to the next higher commander within five calendar days from the date the initial punishment is announced. If the member fails to submit an appeal within five calendar days, the commander may reject the appeal as untimely.
There are a variety of other, follow-on administrative actions that may/will be initiated after the imposition of non-judicial punishment under Article 15. These follow-on administrative actions are very service-specific and include such matters as establishment of an Unfavorable Information File, Performance/Restricted OPMF Section Filing, Officer Selection Record Filing, Performance/Fitness Report annotation, etc.
If the service member decides to refuse or “turn down” the Article 15 action, the chain of command will then decide whether to drop the case or forward it for court-martial action. The decision whether to turn down an Article 15 and demand a court-martial is a serious decision and should not be made without first consulting with a lawyer, preferably a seasoned trial lawyer who can help you fully assess the evidence and give you well-reasoned advice regarding the benefits and dangers inherent in the choice. If the command decides to go forward with a court-martial, then, depending on the circumstances of your case, the command will refer your case to a Summary Court-Martial, a Special Court-Martial, or a General Court-Martial. In many cases involving an Article 15 turn-down, a Summary Court-Martial will be convened, but this preference is very service-specific. In some services, the tendency is to move directly to trial by Special Court-Martial when an Article 15 is turned down. The punishment that can be imposed by a Special Court-Martial is substantially higher than that imposed under Article 15. Moreover, the future consequences of a conviction by Special Court-Martial (tantamount to a federal conviction) can be particularly harsh.
The decision to accept or refuse non-judicial punishment is one that has many implications and can play a major role in bringing your military career to an abrupt end. There are many factors to be considered and you need the assistance and counseling of a lawyer with extensive military experience to help you make the best decision. If you have been offered non-judicial punishment pursuant to Article 15, please contact Walther Law for a free consultation regarding your case. We will assist you in making an informed decision regarding whether to accept or refuse non-judicial punishment. Should you elect to accept non-judicial punishment, we will assist you in preparing your presentation to the commander and, if necessary, your appeal of any punishment received.
Courts-Martial To be accused of a crime in any court system can be a traumatic event. However, being the subject of criminal charges in the military can be especially frightening because it is such a unique criminal court system. While most people have a general understanding of the civilian criminal justice system, the unique nature of the military’s approach can be very confusing. A criminal trial in the military is known as a Court-Martial. While many of the criminal allegations addressed in a Court-Martial have similar charges in the civilian system, the Court-Martial process is extremely unique and differs in many significant aspects from a civilian criminal trial. For that reason, any attorney representing a military member at a Court-Martial should have specific, military experience.
Attorney Mike Walther has litigated hundreds of Courts-Martial: as a prosecutor, defense counsel, and even as a military judge. He has done so with outstanding success. Your future – more specifically, your freedom, livelihood, and reputation – depend upon how effectively your lawyer represents you. If you are facing Court-Martial charges, or believe you may be, you should contact Walther Law for a free consultation regarding the circumstances of your case. For now, here’s a brief overview of the Court-Martial process.
Court-Martial Overview – Types of Courts-Martial Courts-martial are governed by a variety of rules with which most civilian attorneys are unfamiliar. These include: the Uniform Code of Military Justice (UCMJ); the Rules for Courts-Martial (RCM); the Military Rules of Evidence (MRE); and a number of service-specific regulations, administrative procedures, and Rules of Court. There are three types of Court-Martial: Summary (SCM), Special (SPCM), and General (GCM).
The SCM is the lowest level Court-Martial in the military justice system. The SCM is ordinarily used to dispose of relatively minor offenses where nonjudicial punishment (see above) is considered insufficiently severe. The SCM is composed of one officer who acts as judge, prosecutor, and defense counsel. He or she is charged with impartially inquiring into both sides of the matter and ensuring that the interests of both the Government and the service member are safeguarded and that justice is done. A military defense counsel is typically not authorized to represent the service member in a Summary Court-Martial, but service regulations differ on this point. A civilian defense counsel may represent the member at the member's expense, if the appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it.
The service member is not required to accept trial by SCM. He or she may decline to be tried by SCM. However, the command does have the option to convene a SPCM or GCM (addressed below) if the SCM is declined. At the SCM, the member has the right to cross examine any witnesses, call witnesses and produce evidence, testify under oath in the findings (guilty/not guilty) phase, remain silent; and raise motions. If convicted, similar rights apply during the sentencing phase of the case. The member may testify under oath; make an unsworn statement; remain silent; and/or present matters in extenuation and mitigation. There are also a variety of post-trial procedures that apply to the SCM.
The maximum punishment that may be imposed by SCM follows:
For E-5 and above:
- Reduction of one pay grade
- Forfeiture of two-thirds pay for one month
- Restriction for sixty days
For E-4 and below:
- Reduction to E-1
- Forfeiture of two-thirds pay for one month
- Confinement for thirty days or hard labor without confinement for forty-five days or restriction for sixty days
The prevalence of SCMs is also service-specific. Some services appear to disfavor SCMs, preferring instead to utilize SPCMs where nonjudicial punishment is insufficient. Other services use the SCM more frequently, seeing it as an efficient way to dispose of cases more serious than those calling for an Article 15, but not serious enough for a SPCM.
Special Court-MartialThe SPCM is the intermediate level of Court-Martial in the military. The jurisdictional maximum imposable punishment for this court is reduction in grade to E-1; forfeiture of two-thirds pay per month for a period of twelve months; confinement for a period of twelve months; imposition of a bad conduct discharge; and a fine. The amount of the fine may not exceed the total forfeitures which could be imposed; nor can the combination of a fine and forfeiture exceed the total amount of permissible forfeitures. Unless the service member elects trial by military judge alone, the jurisdictional minimum number of court members (jury) is three officer members, to include, at the election of the enlisted accused, at least one-third enlisted members. This “forum selection” is discussed below.
General Court-MartialThe GCM is the most serious type of Court-Martial. The jurisdictional maximum imposable punishment for this court is reduction to the grade of E-1 (officers cannot be reduced); forfeiture of all pay and allowances; confinement for life without eligibility for parole; imposition of a dishonorable discharge (dismissal for officers); death (if capital); and a fine in an unlimited amount. The maximum imposable punishment in any given trial for the GCM is determined by the charged offenses; most offenses do not include death as an option, and most offenses provide for a confinement cap well below life. Unless the service member elects trial by military judge alone, the jurisdictional minimum number of court members is five officer members, to include, at the election of an enlisted accused, at least one-third enlisted members.
Court-Martial Overview – Pre-Trial Process
The Court-Martial process typically begins at the conclusion of a law enforcement investigation. The report of investigation is provided to the service member’s chain of command. In consultation with the local JAG office, the commander determines the proper disposition level for the case. Of course, the commander will have a variety of options besides trial by Court-Martial, to include nonjudicial punishment action (see above), administrative discharge action (see below), or other lower-level adverse administrative action. If the commander determines Court-Martial action is appropriate, he or she will “prefer” charges against the member. From this point on in the process, the member is known as “the accused.” The preferral is no more than the commander's statement that he or she believes the charges to be true, and a formal notification to the accused that he or she is now under charges and the Court-Martial process has begun.
If the commander has determined that the case should proceed to SPCM, the Court-Martial can quickly be convened and the case set for trial. A Court-Martial is “convened” in the military when a designated senior officer (often O-6 or above), the “Convening Authority” (CA) directs that a Court-Martial take place and appoints court members to the case from within his or her command. Some services have their CA appoint new members each time a Court-Martial is convened. Other services have their CA appoint court members to serve on all courts convened within a certain period of time; for example, six months.
When the CA convenes a Court-Martial, he or she “refers” the charges to trial by Court-Martial. Upon notice of this referral action, the accused can be tried after a statutory waiting period of three days, although there is typically a longer period before the trial begins. Once the case has been referred, a military judge is detailed to the case and sets the trial date.
The Article 32 Hearing ProcessIf the commander determines that the case should proceed to GCM, the process differs significantly. The preferral process is the same, but no case can proceed to trial by GCM without a preliminary investigation (much like a civilian Grand Jury investigation) under Article 32, UCMJ. This investigation is designed to protect service members from baseless charges. When required, an Article 32 investigation is conducted by an impartial Investigating Officer (IO) appointed by the CA. Service practices regarding Article 32s differ, with some customarily appointing experienced Judge Advocates as IOs while others appoint non-JAG officers, who often have little, if any, legal training as IOs. Where the IO is a non-JAG, the IO is assigned a legal advisor from the local JAG office to assist him or her during the investigation.
The IO is charged with determining three things: whether there are reasonable grounds to believe an offense occurred and the accused committed it; whether the charges are in proper form; and the appropriate level of disposition for the case. An accused has a variety of rights at an Article 32 hearing. They include:
- Be informed of the charges under investigation;
- Be informed of the identity of the accuser;
- With very limited exceptions, be present throughout the taking of evidence;
- Be represented by counsel;
- Be informed of the witnesses and other evidence known to the IO;
- Be informed of the purpose of the investigation;
- Be informed of the right against self-incrimination;
- Cross examine witnesses who testify;
- Have witnesses produced if their appearance meets the applicable requirements;
- Have evidence within military control produced if certain requirements are met;
- Present anything in defense, extenuation, and mitigation;
- Make a statement in any form.
When the IO concludes the Article 32 investigation, he or she makes recommendations in a written report to the CA. Although the CA is not bound by the recommendations of the IO, he or she may adopt them in whole or in part. After the Article 32 investigation, the CA may refer the case to trial by GCM, SPCM, or may dismiss the case altogether. Alternatively, the CA may determine that some administrative mechanism, i.e., a Letter of Reprimand or Administrative Discharge Action, is appropriate. However, in the vast majority of cases, once the Article 32 investigation has been completed the case is referred to a GCM.
Upon notice of this referral action, the accused can be tried after a statutory waiting period of five days, although, again, there is typically a longer period before the trial begins. As with the SPCM, the assigned military judge, or a superior judge, will review the schedules of all counsel and set a trial date.
Court Martial Overview – The Trial
The trial begins with a session out of the presence of the court members. At the beginning of this session, the military judge asks the accused about his or her choices regarding various rights. The military judge will ask the accused by whom he or she wants to be represented and whether he or she wants to be tried by court members or by military judge sitting alone. Also during this session, the lawyers for each side may ask the judge to rule on certain points of law. Typical motions at this phase may involve the suppression of evidence due to an improper search or seizure, suppression of statements made by the accused due to a rights violation, and attempts to introduce or exclude evidence under the Military Rules of Evidence. After the military judge rules on any motions brought before the court, the accused enters his or her pleas in the case. If the accused pleads guilty, the military judge will question him or her to determine if the pleas are knowing and voluntary. If the judge determines the pleas are provident, or acceptable, the case proceeds to sentencing. If the accused pleads not guilty, and has elected trial by court members, the “findings” (guilty/not guilty) phase of the trial begins. The trial starts with opening statements by each side. These statements are the lawyers' views of what the evidence will show.
The Government then begins their case. The prosecutors in the military are referred to as “Trial Counsel.” Trial Counsel presents their evidence and witnesses and the Defense has an opportunity to question all witnesses called by the Government. At the conclusion of the Government's case, the Defense may present a case, or may remain silent and present no evidence. If the Defense puts on a case, all witnesses called by the Defense are subject to cross examination by the Trial Counsel, to include the accused if he or she testifies.
After both sides have an opportunity to present possible rebuttal evidence, the military judge will close the court and have a session with the lawyers and the accused to determine what instructions he will provide the members. The judge is obligated to instruct the members on the law applicable in the case; sometimes there are disagreements as to the appropriate instructions, and the judge will rule on these issues out of the presence of the court members. The members are then called back into the courtroom and the judge provides the substantive instructions to the members.
The lawyers then make closing arguments. Closing arguments are more than just the lawyers' recitation of the facts; these arguments are the lawyers' opportunity to convince the judge or members that their respective cases are the more believable. After the arguments of the lawyers, the military judge provides the instructions on the applicable procedures for closed session deliberations, voting by the members, and announcing the findings. In the military, unlike the civilian community, an accused can be convicted if two-thirds of the members vote for conviction on any given offense – a unanimous verdict is not required. If the accused is convicted of an offense before the court, the case proceeds immediately to the sentencing phase. If the accused is acquitted - or found “Not Guilty” – of all charged offenses, the trial is over and the accused returns to duty.
In the civilian community, there is often a period of time between a conviction and the sentencing phase of the trial. This respite allows for completion of such items as a sentencing report for the judge; it is also often undertaken before a judge without a jury and governed by state or federal sentencing guidelines. In the military, however, the sentencing phase of the trial follows immediately after the findings phase. The accused is sentenced by the same forum he or she selected for the findings phase; that is, if he or she elected trial by members, he or she is sentenced by members, if he or she elected trial by military judge alone, he or she is sentenced by military judge alone.
The sentence case procedure mirrors the findings case procedure in that the Trial Counsel goes first. The Trial Counsel presents a number of mandatory items from the accused's military record, and any other evidence directly relating to or resulting from the offenses of which the accused has been convicted. The Trial Counsel's evidence is known as “matters in aggravation.” The Defense goes next, and presents matters in “extenuation and mitigation.” At the conclusion of the evidence, the judge again instructs the jury, the lawyers argue, and the jury deliberates. If the accused is sentenced to confinement, the confinement takes place immediately, with very limited exceptions. If the accused is sentenced to a reduction in rank or forfeitures, the effective dates of those portions of the sentence depend upon the service of the accused. If the accused is sentenced to a punitive discharge, the effective date is driven by the completion of post-trial processing and any appeals in the case.
Court-Martial Overview – Your Important Trial Rights
When a case proceeds to trial, an accused has a variety of rights. These include:
- -To be represented by military (no cost) and civilian defense counsel (member's expense);
- -To raise motions regarding points of law in dispute;
- -To be tried by court members (jury) or a military judge alone;
- -To invoke the Military Rules of Evidence regarding admissibility of evidence;
- -To rely on the Government's burden to establish the charged offenses by legal and competent evidence beyond a reasonable doubt;
- -To remain silent
- -To testify;
- -To request the production of relevant witnesses and evidence;
- -To have access to information available to the Government counsel through the “Discovery” process; and
- -If convicted, to present matters in extenuation and mitigation.
While all these rights are important, and are exercised most effectively with the assistance of a seasoned trial practitioner, some bear further explanation:
The Right to CounselThe right to counsel is the foundation for effectively and persuasively exercising all other rights available to an accused in a Court-Martial. An accused is entitled to be represented by detailed military defense counsel, free of charge. Different services make defense counsel assignment decisions based upon different criteria. Some services tend to place second-assignment JAGs or above in defense counsel billets, while other services may assign JAGs fresh out of law school. You should be sure to ask your detailed counsel about his or her level as experience as a lawyer, a defense counsel, and counsel in the type of case you are facing. In addition to your detailed counsel, you may ask for another military counsel to represent you.
If the requested counsel is reasonably available (different service rules apply), he or she will be appointed to represent you also free of charge. If this second military counsel is appointed, however, you would no longer have the right to keep your originally detailed military counsel. You may ask your original counsel's superiors to allow him or her to remain on the case, but hat request would not have to be granted; that is because you are entitled to only one military lawyer. If you asked for a specific military lawyer, you should again be very careful to question that person about his or her level of experience, especially in a case like the one you face. These may be hard or awkward questions to ask, but you should get past that and do so – your future depends upon it.
In addition to military counsel, you may also be represented by a civilian counsel of your choosing, but you must pay for the civilian. If you are represented by a civilian, you can keep your military lawyer on the case to assist the civilian, or you can be represented alone by the civilian. It is usually not a good idea to dismiss your military lawyer, so think very carefully about that issue if it comes up. If you decide to hire a civilian, question that person too, extensively, about his or her experience. Ask them about such areas as prior military service, prior JAG experience, familiarity with military law, representative samples of cases they have tried, how many cases have been litigated, and their ability to dedicate sufficient time to your case.
Right to Confront Witnesses.
The right to confront witnesses means the right to cross-examine witnesses. However, it means much more than simply standing up and asking the witness any questions that come to mind. The cross examination right, properly exercised, requires significant preparation, and a great deal of thought as to how the cross examination of each witness plays into the overall case strategy. It certainly requires interviewing each opposing witness prior to trial; sometimes on more than one occasion. Simply, it requires experience to be conducted effectively.
Right to Select Forum. In a Court-Martial, an accused may be tried by either court-members or by military judge alone. If tried by military judge alone, the judge first determines whether the accused is guilty or not guilty of the charged offenses. If the judge finds the accused guilty of any charged offense, the judge also determines the sentence in the case. The accused may also be tried by court members. If the accused is enlisted, and he or she elects enlisted membership on the court, the Court-Martial panels must include at least one-third enlisted membership; however, typically no enlisted member will come from the accused's unit, and no enlisted member will be junior to the accused. If the accused elects trial by members, the members must vote by secret written ballot to determine the guilt or innocence of the accused. If there is a conviction, the members again vote, by secret written ballot, to determine the sentence of the accused.
In the military, with one limited exception, court members are only excused if it can be demonstrated that they cannot hear the case fairly and impartially. However, the lawyers do get a chance, as noted above, to question the court members in order to determine whether they are fair and impartial. Additionally, each side is permitted one challenge against a court member, which results in the excusal of the court member, without demonstrating partiality. This exercise, too, requires significant study of the background of the court members as set forth in their background data sheets supplied before trial, and application of experience to determine which court members are better suited to sit. For example, one may think it would be a good idea from a Defense perspective, to try and remove any women from a Court-Martial panel in a sexual assault case. This is not always the case; in fact, in some sexual assault cases, it is a good idea to try and keep women on the Court-Martial panel. Only years of experience puts the Defense in a position to make such calls.
The Right to Testify. The right to testify is much more than an accused's right to sit before the jury and tell his or her side of the story. Whether or not to testify is a decision made by the accused with the advice of his or her lawyer. However, an accused will never be in a position to make such a decision until he or she is fully prepared for the prospect of testifying. The military defense attorney should prepare the accused for trial testimony by actually taking an accused into the courtroom and conducting a mock examination – to include cross examination – with an accused. Only then can an accused make an informed judgment about whether or not to testify. In fact, only then can a military defense lawyer make an informed recommendation to an accused about whether or not to testify. This part of trial preparation, like all others, requires significant experience. Only the seasoned advocate is in the best position to make such crucial recommendations to an accused as his or her future hangs in the balance.
Court-Martial Appeals - Overview
For a military member convicted at a court-martial, there are a variety of different appellate reviews that one can pursue. The type of appellate review depends upon the adjudged sentence and the type of court-martial. Military members are entitled to legal representation during all phases of appellate review. Following a conviction by court-martial, a legal review of the proceeding is conducted by the responsible military service. A judge advocate conducts the review in less serious cases and the service’s Judge Advocate General is the review authority in more serious cases. The Judge Advocate General may elect to certify any case he/she reviews to their respective Court of Criminal Appeals.
For those military members whose sentences included death, punitive discharge, or confinement for one year or more, they will be automatically entitled to an appellate review of their case by their service’s Court of Criminal Appeals. These Courts of Criminal Appeals are the Air Force Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, the Army Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals.
After review by the Court of Criminal Appeals, the Court of Appeals for the Armed Forces (CAAF) may elect to review any case. Review is automatic in death penalty cases and cases certified to the court by The Judge Advocate General of each service. CAAF reviews only questions of law and legal sufficiency. Cases reviewed by CAAF may be considered for review by the Supreme Court of the United States.
Involuntary Administrative Discharges
Military members may be involuntarily separated from the military by administrative discharge. The bases for administrative discharges are varied, and can range from minor misconduct to medical issues to homosexuality. While an administrative discharge from the military is less severe than a court-martial, it can still have lifelong, significant effects upon one’s employability, eligibility for Veterans’ Benefits, and social standing. If you have been informed that you are being considered for administrative discharge from the military, we encourage you to call Walther Law P.C. for a free consultation about your case.
Administrative Discharge – Overview
Service regulations permit the government to administratively separate service members whose performance, conduct, or physical and mental conditions indicate a lack of ability to continue to serve. Some of the grounds include misconduct due to drug abuse, minor disciplinary infractions, commission of a serious civilian offense, or a pattern of misconduct; presence of a pre-existing physical or mental condition that limits the ability to continue to serve; failure to meet weight or physical fitness standards; failure of an alcohol or drug rehabilitation program; hardship; and for “the good of the service.”
These proceedings include procedures for characterization of service, allow the following potential outcomes:
Honorable Discharge: allows the service member to retain many rights administered by the Veteran’s Administration and the Department of Defense; however, administrative reenlistment codes attached to the characterization of service could preclude reentry into another branch of the Armed Forces.
General Discharge (under honorable conditions): is the characterization of discharge usually awarded in cases where a service member’s is generally honorable, but certain negative aspects cause it to receive a lower categorization than an Honorable Discharge. This characterization of service, although honorable, may be viewed less favorably by some future employers.
Under Other than Honorable Conditions Discharge (OTH or UOTHC): this type of discharge deprives one of substantially all rights administered by the Veteran’s Administration and the Department of Defense. It is likely to have a negative impact on the ability of an individual to obtain future employment, and may act as a bar on obtaining jobs in federal, state and local government. Obviously, the characterization of your discharge may have a serious impact on your future. That’s why it’s important to fully exercise your rights by having a qualified attorney representing you at every stage of the proceeding. Remember – a defense in depth. There are two different processes for administrative discharge: Notification Processing or Board Processing. Most cases are processed using notification procedures, where the notification and the member's response are limited to writings. If a member is entitled to have his/her case heard by an administrative discharge board, however, board procedures are used.
Administrative Discharge – The Discharge Board Process
A member recommended for discharge (Respondent) must be offered a hearing by an administrative discharge board if the command seeks to characterize the Respondent’s service as Under Other Than Honorable Conditions. In addition, there are other criteria that entitle a Respondent to a board hearing, though these criteria differ slightly from service to service. Some examples of the criteria that would automatically entitle a Respondent to a board hearing are:
|Rank: If the member is a noncommissioned officer at the time discharge processing starts;
Time In Service: If the member has a certain number of years of total service at the time discharge processing starts (this number varies service to service);
Basis for Discharge: If the reason for the administrative discharge is 1) homosexual conduct, or 2) in the interest of national security, automatically entitle the service member to a board hearing. An administrative discharge board is comprised of three (3) members senior in rank to the Respondent, a Legal Advisor (typically a JAG), and a Recorder, who serves as the “prosecutor” and represents the command. Board proceedings are administrative in nature and the board is not bound by formal rules of evidence. Thus, the board may consider information which might not be admissible at a court-martial. Further, the board’s decisions are based upon preponderance of the evidence presented, rather than beyond a reasonable doubt.
At an administrative board, the Respondent has a variety of rights, including:
|Appearance: the right to appear in person before the board, with or without counsel;
An Impartial Board: including the right to challenge any voting member of the board for cause, i.e., by showing that the member cannot render a fair and impartial decision;
Testify or Remain Silent: the right to submit an oral or written statement, to testify on his/her own behalf, or to remain silent;
Present Witnesses: the right to request the attendance of witnesses at the hearing;
Submit Documentary Evidence: the right to submit any answers, depositions, sworn or unsworn statements, affidavits, certificates, or stipulations; and
Question the Government’s Witnesses: the right to question any witness who appears before the board, or have counsel questions the witnesses on his/her behalf.
When the administrative board convenes, the board considers all the evidence, both for and against the Respondent. In closed session deliberations, the board members then vote upon the following findings and recommendations:
Findings of Fact: determining whether each allegation set out in the notification memorandum is supported by a preponderance of the evidence;
Existence of a Basis for Discharge: based on the findings of fact, whether a basis for discharge exists;
Recommendation: whether the Respondent should be discharged or retained in the service;
Characterization (if discharge is recommended): based on the totality of the Respondent’s record during the current enlistment, a recommendation concerning the characterization of service, i.e., Honorable, General (under honorable conditions), or Under Other than Honorable Conditions. [Note: in some cases, depending on the grounds for discharge, only an Honorable or General discharge characterization is permitted.]; and
Probation Recommendation: in some cases where the Board recommends discharge it is also authorized to recommend Probation and Rehabilitation. These findings of fact and recommendations are forwarded to the Respondent’s chain-of-command. Generally, the board’s findings of fact and recommendations are binding upon the chain of command, although there are some service-specific exceptions.
If the board finds that you did not commit the disqualifying act or have the disqualifying condition, then the case is normally closed. If it finds that you should not be discharged, this normally closes the issue, although the government can forward the case to higher headquarters for further action. For a finding of discharge, both you and the government can go to the General Court-Martial Convening authority (GCMCA) for further consideration. The GCMCA has the power to disapprove findings adverse to you, can upgrade the condition of your discharge, or can suspend the discharge based on your continued good conduct. Conversely, if he disagrees with a favorable discharge characterization, the GCMCA can go to the Service Secretary seeking a less favorable characterization.
Contrary to popular belief, a service member’s discharge or discharge characterization is not automatically upgraded after six (6) months. There are procedures whereby one can request relief from the Discharge Review Board or the Board for Military Corrections to upgrade the discharge characterization. However, as a general rule, the basis for the discharge and its characterization will likely follow you for the rest of your life. That’s why it is imperative that a military member facing administrative discharge be represented by a lawyer experienced in military law and discharge board litigation.
Remember, you have the right to be present at all sessions of the Administrative Discharge Board and to be represented by a military lawyer, including your detailed military lawyer, a military lawyer you request, and/or a civilian military lawyer that you retain. This is a substantial evidentiary hearing, which includes the right to challenge the government’s evidence, cross examine their witnesses, present your own witnesses and evidence, and testify on your own behalf.
In short, this is something you can and should fight. If you have been notified that your command seeks to administratively discharge you from the military, please contact Walther Law P.C. This is a defining moment in your military career and can impact the rest of your personal and professional life. Attorney Mike Walther has decades of proven experience as a military lawyer. Call now for a free consultation.
When a service member is discharged from active duty, he or she receives a DD Form 214. The DD 214 records the reason or basis for separation, the characterization of service, and a reentry or reenlistment code. A service member who completes his or her full contract term, and does so admirably, will typically receive an "honorable" characterization of service and will be entitled to the full complement of rights and benefits. They will also typically receive an "RE-1" reentry code, which will allow them to reenlist at a future date in one of the branches of the armed forces.
When there is misconduct during service that leads to an early discharge, the DD 214 entries will usually not be as stellar and will impact on the benefits received. A typical negative discharge DD 214 will record "misconduct" as the reason for separation, "under other than honorable conditions" as the characterization, and "RE-4" for the reentry code. Service members could also receive a "general under honorable conditions" characterization.
These negative entries are critically important. Only service members who receive an "honorable" characterization typically qualify for the GI Bill educational benefits. Those who receive an "RE-4" reentry code will find in very difficult to enter any branch of the armed forces. Further, potential employers may not be as interested in hiring those with negative entries on their DD 214. For this reason, it is critical that you receive the best possible characterization of service when discharged from active duty. (See Administrative Discharge Boards above.)
Once you are discharged, there is a process to upgrade your discharge. However, there is no automatic upgrade process for any negative entries that you received. Service members must file with their respective Discharge Review Board (DRB) or Board for Correction of Naval/Military Records (BCNR/BCMR) to upgrade a discharge.
If you have been discharged and are contemplating a filing with a DRB or BCNR/BCMR, it can be very helpful to have an experienced military lawyer assist with the process. It is important to make the best possible filing the first time, since requests for reconsideration usually must include new information that was not available during the first filing, and usually have lower odds of success.
Boards for Correction of Military Records
In addition to having the authority to upgrade administrative discharges, the Boards for Correction of Military Records are also empowered to correct other aspects of your permanent military record when appropriate. The services have procedures in place to ensure that adverse material does not enter the records of service members unless some form of due process is provided. This simply means that the service member must be given a chance to prevent erroneous or incomplete information from becoming a part of his or her permanent record. Despite these regulations, however, errors are often made, facts are distorted, and the information that goes into a permanent record does not accurately reflect the service of the member. The impact of such erroneous or inaccurate records can seriously impact a service member’s career in a variety of ways, including failure of promotion and denial of reenlistment.
Correction of Military Records – Overview
As result of the reality that adverse and inaccurate information can find its way into the records of service members, Congress has provided the means for a service member to petition for removal of this information. Through the Board for Correction of Naval Records (BCNR) or Board for Correction Military Records (BCMR), a factual proceeding is available to attack inaccurate and incorrect information and remove it; to remove the stigma of being passed over from promotion as a result of that information; to get a special selection board to reevaluate your corrected records against your peers, and be selected; and, under the right circumstances, to receive compensation for the pay you would have earned if you had been promoted with your contemporaries.
Information that can be removed under the proper circumstances includes adverse performance evaluations or fitness reports, adverse counseling, improperly filed or processed nonjudicial punishments, or erroneous courts-martial results. Experience shows that, in the face of administrative errors or manifest injustice, the possible remedies are varied, and are intended to restore you and your career, as much as possible, to the position it would have been in without the error.
Correction of Military Records – Process
The procedures under these boards place the burden on you to present evidence of administrative error or factual inaccuracy that results in an injustice. This means that you are responsible for investigating the error, collecting evidence, drafting the petition, and submitting this to the board for their evaluation.
Unfortunately, most active duty military lawyers have limited experience in this area, and may be precluded by service regulations or by the demands of their court-martial caseloads from assisting a service member with this petition. It is not unusual for an active military attorney to provide a package of written materials describing the promise, and a vague indication that they would be glad to review the package without providing substantive help. As the process of the boards is both rule and evidence intensive, this approach is often inadequate.
Requests for corrections have time limits. The member must file within a given time period of discovering the error. Do not hesitate in exercising your options. Your future career is at stake. Contact Walther Law for a free consultation regarding your case. RETURN TO topics