Military Lawyer

 

Sexual Assault/Misconduct Investigations

Servicemembers today face an increasingly hostile cultural and political environment when it comes to allegations of sexual misconduct. Long a hot button issue for commands and Congress, these issues rocketed to the forefront in the wake of Congressional hearings in 2013 and more recently by virtue of the “me too” movement and even the Supreme Court nomination process. Although the law still requires due process, more Servicemembers report being treated as guilty until proven innocent by their command. When “accusers should be believed” becomes the standard talking point, what can the wrongfully accused person do to protect their liberty and reputation?

The first step in response to any allegation of misconduct should be to consult with an experienced military lawyer. While the government may offer a free military lawyer, don’t be surprised if they decline to get involved in your case until you are facing adverse action or court-martial charges. The government may choose to spend months and months on their investigation without providing you any update or progress report. What can/should you be doing during this time?

Our office strongly believes that a proactive approach to case investigation often leads to better results than the “hurry up and wait approach.” While the government slowly wades through its “red tape” and fills out its reports to headquarters, your military lawyer can be discovering useful facts, interviewing critical witnesses and developing the defense strategy. All of this can and should be happening, in most cases, when you hire a military lawyer to defend your rights.

Keep in mind that “do it yourself” may be fine for a tax return or an oil change but could expose you to significant legal jeopardy in an investigation. All actions you take will be carefully examined by the government. Leave witness interviews and the collection of evidence to your defense team to avoid any potential misunderstandings. If in doubt, contact your military lawyer for guidance before you act.

Court-Martial Defense

What exactly is a court-martial? A court-martial is a criminal trial conducted under the authority of the Uniform Code of Military Justice (UCMJ). The modern UCMJ dates to an act of Congress passed on 5 May 1950 (updated regularly) and signed into law by President Harry Truman. It applies to all Servicemembers on active duty and to certain Reserve Component personnel depending on their status.

What are the types of court-martial? The three types of courts-martial are Summary, “BCD Special” and General.

A Summary Court-Martial is the lowest level and used to prosecute minor offenses. The case is heard by a single officer (usually a judge advocate) and limits punishment to no more than 30 days of confinement (as well as others like restriction and extra duty), depending on the rank of the accused.

A “BCD Special” is the middle level and used to prosecute offenses that would be considered more serious misdemeanor level misconduct. The case is heard by a military judge or the accused has the right to choose a panel of officers and/or enlisted members depending on their rank. Maximum punishments are limited to a Bad Conduct Discharge and 12 months of confinement.

A General Court-Martial is the highest level and is used to prosecute serious offenses. The case is heard by a military judge or a panel. A General Court-Martial requires an Article 32 preliminary hearing before it can be forwarded by the command to a military judge for adjudication. The accused has a right to counsel at the Article 32 and may cross-examine government witnesses and request defense witnesses or provide other evidence for consideration. The Preliminary hearing officer’s report is not binding on the command. A General Court-Martial may adjudge any penalty authorized under the UCMJ up to and including Death or a Dishonorable Discharge/Dismissal.

What Questions Should I ask a Military Lawyer When Facing A Court-Martial?

Choosing a military lawyer to defend you is a significant responsibility with so much on the line. Here are some questions (and our answers) to consider as you interview military lawyers:

Q1 – Do you have experience defending and prosecuting military courts-martial? How/where did you get this experience? Have you handled similar cases?
Answer: Yes. Our military lawyers have experience on both sides of the bar. We have served as both military prosecutors and military defense counsel and now as civilian defense counsel. Jon Stanfield tried his first military court-martial in 1999 at Fort Sill, Oklahoma. Our lawyers have handled a wide variety of cases up to and including a fully contested murder trial before military members.

Q2 – Would you consider yourself a trial lawyer or do most of your cases result in a guilty plea?
Answer: We are military trial lawyers. When we review your case, we assume that you are pleading not guilty and want to go to trial. Although some cases may be more defensible than others, our goal is to obtain the best possible results under the circumstances.

Q3 – Is a court-martial defense expensive?
Answer: Yes. Hiring an experienced military lawyer to defend your rights will be a serious commitment of financial resources. We quote most clients a fixed fee or an hourly capped fee after the free initial consultation. Most clients pay their fee from a combination of personal savings, credit and assistance from friends and family.

Q4 – Who will work on my case?
Answer: We use a team approach, but your matter will have a lead counsel and you will receive the lead counsel’s direct contact information. You will receive regular case updates and we return calls as soon as possible.

Q5 – What information will you need from me?
Answer: You are probably the most knowledgeable witness in your own case. We will collect a detailed in-take sheet and you will receive a written checklist of items to assist in your defense. We will update your checklist as the case progresses. We believe in regular client contact and make communicating a daily priority.

Q6 – How do we get started?
Answer: Call our office at 913-827-3729 (or use our online form) to request a free consultation with a military lawyer. There is no cost or obligation in doing so. If your case involves multiple individuals be sure to have the names available for conflict checking purposes to avoid any delay in the consultation.

Non-Judicial Punishment (NJP)

Whether you call it NJP, Article 15, Captain’s Mast, or Office Hours, receiving NJP can have profound impacts on your career and potential for advancement. Authorized by Article 15 of the UCMJ, commands use NJP to dispose of minor disciplinary offenses where the commander sits as both accuser and fact finder/judge. Severity of potential punishment varies depending on whether it is imposed by a Company Grade or Field Grade Commander and the rank of the Servicemember. Potential punishments may include restriction, extra duty, pay forfeiture, rank reduction (E6 and below). Commanders may also choose to file records of NJP in the Servicemembers official file where it can directly affect promotions, security clearances and other aspects of military service.

Right to Refuse NJP. Servicemembers may elect to refuse NJP and demand trial by court-martial. This decision should not be made lightly since a court-martial could result in a federal conviction. The standard of proof for NJP is the same as court-martial – beyond a reasonable doubt. Despite this fact, some command view NJP as a good way to dispose of weak evidentiary cases or those that rely solely on rumors and circumstantial evidence. In these situations, it may be advantageous to discussing a “turn down” with your military lawyer. Keep in mind that the command is not required to proceed to court-martial and is free to pursue other options up to and including administrative separation.

Our office routinely handles these types of matters and is well positioned to talk you through your options before you make a final decision. Call us today to set up a free consultation at 913-827-3729.

Administrative Separation Boards/Boards of Inquiry

No matter how long you serve or your branch of service, you will eventually leave the service and receive an administrative (or punitive) discharge. While everyone hopes to receive an honorable, there are several other types of discharges that can be issued. Here is a brief summary of the discharges:

Honorable (HON)– favorable record

General Discharge (under honorable conditions) (GEN)– satisfactory but failed to meet all expectations for military members. May be entitled to some benefits of service.

Other Than Honorable (OTH) – departure from the conduct and expected performance. Usually based on misconduct. Unlikely to receive any benefits of service or be eligible to reenlist.

Bad Conduct Discharge (BCD)– only issued as Court-Martial Punishment.

Dishonorable Discharge/Dismissal (DD) – the least favorable discharge and only issued as a Court-Martial Punishment.

Administrative Separations. Prior to separating a Servicemember the military must provide written notice and the opportunity to respond in writing (at a minimum). For those Servicemembers exceeding a certain number of years of service (usually six) or facing elimination under an OTH, it must also offer a Separation Board and/or Board of Inquiry prior to making the final determination of future service. Depending on the rank of the respondent, the boards findings and recommendations may be processed locally or forwarded to the Component Headquarters for final action.

No matter your rank or years of service, if you are facing administrative elimination from the service you absolutely should speak with a military lawyer as soon as possible. Your military lawyer will review the basis of the proposed elimination, review/request the evidence to support that basis, interview necessary witnesses, and research the rules and regulations pertaining to the action. In some cases, a detailed response from a military lawyer is all that is required to convince the command to drop the matter. In other cases, your matter may proceed to hearing by the board.

Separation Boards. A separation board normally consists of three members that must be neutral and detached from the facts at issue. They must also be senior to the respondent at least by date of rank and not from the same unit. The government is represented by a recorder that is usually a Judge Advocate. The board may receive advice from a government lawyer that serves as the non-voting legal advisor. The respondent has a right to retain civilian counsel at his or her own expense or accept the free military lawyer provided by the government.

Separation boards have much in common with a court-marital. Both sides may call witnesses, cross examine witnesses, present evidence and offer sworn or unsworn statements. Boards offer a somewhat unique advocacy experience since there is no military judge, the rules of evidence do not apply in most regards, and the government recorder may have significantly less experience in a board than an experienced civilian defense counsel. Our office looks forward to using our experience and advanced advocacy training to obtain the best results possible in these forums.

Discharge Upgrades

Veterans have the right to request a discharge upgrade under several grounds with the Discharge Review Board of their service. Although using an attorney is not required, a trained advocate can assist you in preparing your packet, collecting relevant evidence and crafting your arguments into a compelling call to action. Our office routinely handles these types of matters and looks forward to discussing your case. Please keep in mind that some government eligibility timelines do apply so consult an attorney as soon as possible to discuss your matter. For more information about the application process visit:

Army: Army Review Boards Agency

Navy/Marines: Naval Discharge Review Board

Air Force: Air Force Review Boards Agency

Coast Guard: Coast Guard Discharge Review Board

To request a copy of your military records, visit https://www.archives.gov/veterans/military-service-records. Our office may be able to assist you but if you obtain your own records prior to engaging us it may help to reduce your total legal expenses.

Correction of Military Records

Veterans have the right to request a correction of their military records under several grounds with the appropriate Review Board Agency of their service. Servicemembers are generally required to exhaust all other administrative remedies prior to making an application to the Review Board Agency. Although using an attorney is not required, a trained advocate can assist you in preparing your packet, collecting relevant evidence and crafting your arguments into a compelling call to action. Our office routinely handles these types of matters and looks forward to discussing your case. Please keep in mind that some government eligibility timelines do apply so consult an attorney as soon as possible to discuss your matter. For more information about the application process visit:

Army: Army Review Boards Agency

Navy/Marines: Board for Correction of Naval Records

Air Force: Air Force Review Boards Agency

Coast Guard: Board for Correction of Military Records of the Coast Guard

To request a copy of your military records, visit https://www.archives.gov/veterans/military-service-records. Our office may be able to assist you but if you obtain your own records prior to engaging us it may help to reduce your total legal expenses.

Command Investigations

Few things can cause as much stress and disruption to your life and career as being the subject of an investigation. As the military moves closer and closer to a “zero defect” mindset, commands seem to be launching more investigations than ever. When a command becomes suspicious of a person or activity, they have a wide variety of investigative options at their disposal. Here is a brief description of the most common types of investigations:

Commander’s Inquiry

Authorized under Rule for Court-Martial 303, commanders may order a preliminary inquiry into suspected offenses or an accused. Often done informally, Commanders may make this inquiry personally or may delegate another person to investigate on their behalf. These investigations are commonly used for minor offenses or when the command is contemplating nothing more serious than non-judicial punishment or adverse administrative action.

Informal Investigations Under Army Regulation 15-6 or the Navy’s JAGMAN.

For more serious investigations the command can appoint an investigating officer (IO) and request that he or she make findings and recommendations to the commander about a suspected offense. The investigating officer will receive a briefing from a government attorney before starting their investigation, but the officer may not have any other investigative training or skills. For this reason, these types of investigations often contain significant legal errors that an experienced attorney may identify. Never consent to speak with your chain of command or the IO without your lawyer present.

Upon concluding the investigation, the government may choose to close the matter or pursue adverse administrative action, administrative separation or other punitive options like NJP or a court-martial. The person under investigation may get an opportunity to review the investigation and offer written rebuttal matters. We highly recommend that you utilize the services of an experienced counsel when drafting your rebuttal matters. Doing so gives you a chance to obtain the best results at the lowest level and makes a written record of government error that may be useful for various appeals or requests for reconsideration.

Formal Investigations Under Army Regulation 15-6 or the Navy’s JAGMAN

In the case of a high-profile allegation or other serious incidents like a mass casualty event or vehicle accident, the command may choose to utilize a formal investigation board. This board will take testimony on the record, collect relevant evidence, and issue written findings and recommendations to the convening authority or higher. Needless to say, if you are investigated under such circumstances you should seek qualified counsel immediately.

Law Enforcement Investigations by the Military (CID/NCIS/AFOSI/FBI)

The command refers the most serious allegations to its law enforcement investigative experts at CID/NCIC/AFOSI. These agencies operate through their own, separate chain of command and have some autonomy meant to reduce command influence. They will normally work with the unit’s Trial Counsel (Military Prosecutor) to obtain a titling opinion on the accused and offer regular updates as the investigation unfolds. These investigations can take months or even years to complete depending on the complexity of the allegations. Anyone approached by law enforcement to provide information should first speak with a military lawyer before being questioned. Law Enforcement may appear friendly and “on your side” but don’t be fooled. If they read you a rights warning statement, you are a suspect and they want a confession.

Law Enforcement Investigations by the City/County/State/Foreign National Government.

In addition to federal jurisdiction, there is often a City, County or State that also has legal jurisdiction over your personal conduct. They will not hesitate to use their investigative authority to scrutinize your conduct if it suits their interests. For this reason, it is possible to be investigated by the local government and the federal government at the same time or sequentially. In many cases, especially involving a civilian accuser, the investigation may start on the civilian side. Don’t be surprised though if the military gets involved and the state or local government allow the military to prosecute your case. This happens often enough that we always recommend discussing any state law investigation with an experienced military lawyer, even if the military has not yet asserted primary jurisdiction. Jon Stanfield may be willing to assist on your civilian case if the case is brought Kansas, Missouri or Maryland.

Treat any investigation as a potential career ending event, especially if you are an O4 or above. The military recently created a new military database to house adverse findings even if they do not result in adverse administrative action. This database is then consulted for general officer selection boards.

Sexual Harassment Investigations

In addition to the various general types of investigations covered in our Command Investigation practice area, the military also created a new category of subject matter investigations for Sexual Assault Prevention and Response (SAPR). This program offers complainants an alternative reporting option that is not directly related to the chain of command and includes the option to make a restricted (or private report). These investigations involve different timelines, appeal rights and are among the most sensitive given the current political and military command climate. Our office works on these types of investigations quite routinely.

Inspector General Investigations

In addition to the various general types of investigations covered in our Command Investigation practice area, the military also created a separate investigative agency focused on complaints of fraud, waste or abuse and the welfare of Servicemembers. This agency is not part of the local command and enjoys some autonomy to perform its duties. Information provided to the IG may be confidential (as to the reporter) but is never off the record. These investigations involve different timelines, appeal rights and are among the most sensitive given the current political and military command climate. Our office works on these types of investigations quite routinely. If you are approach by an IG investigator you should consult with a military lawyer before answering any questions.

Rebuttals to Letters of Reprimand

Commands often issue Letters or Memorandums of Reprimand to document alleged misconduct or poor performance. Receiving a reprimand could be a career killer, especially if it is filed in the official personnel file. Servicemembers are provided written notice and the opportunity to submit rebuttal matters prior to the Commander’s decision on whether to file the reprimand locally, permanently, or even to withdraw it. Different services may have different timelines, but you will normally get about seven days to submit your matters. Depending on the complexity of the allegations and your military lawyer’s schedule, a written request for extension may be requested. These requests are often granted but are not guaranteed. If you believe you may receive a reprimand you should speak with a military lawyer as soon as possible. Doing so will help to ensure that you can meet the seven-day deadline to respond if necessary. There is no regulatory “right to counsel” but you may be offered a free attorney is one is available from Legal Assistance and/or Trial/Area Defense.

A permanent filing determination may be appealed if it is untrue or unjust by application to the Suitability Evaluation Board. This option is available to those in the grades of E6 and higher. Servicemembers must overcome the burden by providing clear and convincing evidence. Another option is requesting transfer of the reprimand from the permanent file to the restricted file. The request may be made by those in the grade of E6 and higher. Applicants must also wait at least one year from receiving the reprimand and have at least one non-academic OER/NCOER on file.

Some Commands seem to be turning to reprimands to resolve cases with weak evidence or reluctant accusers. This can be inherently unfair since the reprimand process contains the bare minimum of due process protections. It does not permit the Servicemember to cross-examine his/her accuser and/or challenge the allegations before a neutral fact finder. Despite these structural challenges, a trained defense lawyer can document any deficiencies in the process and help present your best defense to the Command. To discuss the facts of your case and to see if we can help, please contact us at 913-827-3729.

Rebuttals to Negative Evaluations

Each service regularly rates its officers and noncommissioned officers for the purposes of evaluating retention and selection for promotion, training and school courses. Although ratings may be subjective and prone to bias or other undue influence, most ratings are done in accordance with regulatory requirements. Should an officer or NCO disagree with their rating or a specific comment made, each service includes a process to appeal an unfair or unjust comment or rating. Strict timelines may apply so time is of the essence on seeking legal advice. A Commander’s Inquiry or appeal can correct errors, injustices, or other regulatory issues before they become part of your official military records. Even if unsuccessful on first attempt, properly documenting the issues also opens the doors for future appeals to the Boards for Correction of Military Records. Consult a lawyer as soon as possible after receiving an incorrect or unjust evaluation report.

Loss/Suspension of Professional Credentials

Approximately two million people serve in the uniformed armed forces counting active duty and reserve components. To support this large population, the military employs all manner of professionals including Doctors, Nurses, Dentists, Veterinarians and other health care professionals that are licensed to provide care in one or more States. While subject to receiving all other forms of Adverse Administrative Action (Relief for Cause, Reprimand, etc.) they may also be suspended from providing care should allegations arise. These allegations are particularly troublesome for professionals as they impact not only their military career but also, potentially, their ability to practice their profession in the civilian world as well.

An investigation that involves the loss or suspension of professional credentials will involve several detailed steps including peer reviews, board hearings and even a credentials committee process. If you have been notified that you will face such a review, you should interview and select a qualified defense counsel to assist you as soon as possible.

Medical Evaluation Boards (MEB)

Serving your country can be rewarding but it can also be hazardous to your health in any number of ways. High operation tempos, stressful deployments, and demanding physical labor can force otherwise superior Servicemembers into limited utility assignments where they struggle to maintain military standards. This can create tension between the Servicemember and the command if there are different expectations of what a Servicemember can and should be doing at work.

Being in a situation like this can bring up several questions:

Does my health issue warrant consideration for an MEB?

What is a fair disability rating for my health issues?

Should I attempt to work through my issues or accept the MEB findings?

How can I talk to my Doctor or Command about the issues I am facing?

How does the VA disability rating compare to my active duty rating and why are the two different?

Is my MEB being handled fairly and consistent with military regulations?

Your Rights in the Integrated Disability Evaluation System (IDES)

Servicemembers who are participating in the Integrated Disability Evaluation System (IDES) face the uncertain task of navigating their way through both the military medical system and the Veteran’s Administration (VA) at the same time. To complicate matters, all of this involves medical conditions that may leave that Servicemember unable to continue to serve. Add in all the medical jargon present during this process and many individuals find themselves adrift in the system. Unfortunately, the military services only offer limited legal services regarding the IDES process – and many times it may be too late to have a positive impact on your case by the time you see your assigned attorney. Additionally, in many instances, those attorneys work for the military hospital – the very people who may be failing to protect the rights of the Servicemember they serve.

Military Medical System versus the VA

The military medical system and the VA do not look at medicine in the same way. The military medical system is focused on one thing: getting you well enough to get back in the fight. Documentation in your medical records and even official diagnosis of what’s wrong are secondary concerns to them. The VA, on the other hand, is solely focused on what the medical records say – especially those all-important diagnoses and ICDN codes.

When Servicemembers enter the IDES system, they are thrust into the middle of these two different ways of looking at their medical conditions. The military may have been treating an injury for years and years – without ever recording a diagnosis.  In that case, the VA will tell the Servicemember that injury is not service connected because there is no diagnosis – even though their medical records have documented the injury for multiple years. By the time the servicemember is assigned an attorney, it may be too late to correct this error while they’re on active duty, leading to additional paperwork and fighting on their own without help from the military after they’ve left the service. This can lead to gaps in medical coverage and a loss of compensation and other entitlements in the meantime.

Continuity of Care During IDES

Another area where Servicemembers are left to their own devices is with continuity of care while in the IDES system. Once the military medical system enters a Servicemember in to the IDES system they no longer pursue treatments that will cure the Servicemember. They will essentially put a “band aid” on the problem and wait for you to leave active duty. They will not pursue additional surgeries or other treatments that could benefit the Servicemember except as an exception to policy. By the time a military attorney is assigned, the Servicemember may have missed out on medical treatment that could alleviate their medical conditions. Additionally, the military attorney assigned works for the command of the hospital that has already denied the services.

For the answer to these questions, and more, request a consultation with Ms. Leah Linger at 913-827-3729.

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