MILITARY JUSTICE

Robert Don Gifford Assistant U.S. Attorney Lt. Col., U.S. Army Reserve JAG Corps [email protected] [email protected]

(405) 553-8736

Why you need to know this stuff

• "Recently in

Porter v. McCollum

, the U.S. Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. • The

Porter

Court stated we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=21918 80

Getting Records

    The Veteran Client/Defendant War Hero, Decorations, Outstanding Evals, Awards, etc.

All on-line: http://www.archives.gov/veterans/ Another good resource: http://www.yourvaadvocate.com/res ources.html

Nat’l Personnel Records Center

 The National Personnel Records Center , Military Personnel Records (NPRC-MPR), in St. Louis, MO, is the repository of millions of military personnel, health, and medical records of discharged and deceased veterans of all services during the 20th century. NPRC (MPR) also stores medical treatment records of retirees from all services, as well as records for dependent and other persons treated at naval medical facilities. Copies of most military and medical records on file at NPRC (MPR), including the DD Form 214, Report of Separation (or equivalent), can be made available upon request.

For the NPRC

  Air Force Officers and Enlisted -- September 25, 1947 Army Officers separated July 1, 1917 Army Enlisted separated November 1, 1912 Navy Officers separated January 1, 1903 Navy Enlisted separated January 1, 1886 Marine Corps Officers and Enlisted separated January 1, 1905 Coast Guard Officers and Enlisted separated January 1, 1898

Need records before this date?

  Military personnel records for individuals separated before these dates are on file at the National Archives and Records Administration, Old Military and Civil Records Branch (NWCTB), Washington, DC 20408. E mail address: [email protected]

. Federal law ( 5 USC 552a(b) ) requires that all requests for records and information be submitted in writing. The easiest way to do this is by using Standard Form (SF) 180 , Request Pertaining to Military Records.

The Freedom of Information Act (FOIA)

 The Freedom of Information Act, or FOIA (5 U.S.C. 552, as amended), generally provides any person with the statutory right, enforceable in court, to obtain access to Government information in executive branch agency records. This right to access is limited when such information is protected from disclosure by one of FOIA's nine statutory exemptions. Click for more information on the Provisions of the Freedom of Information Act .

FOIA and Official Military Personnel Files (OMPF)



The public has access to certain military service information without the veteran's authorization or that of the next of-kin (the un-remarried widow

or widower, son, daughter,

father, mother, brother or sister) of deceased veterans.

What you get

 Examples of information which may be available from Federal (non-archival) Official Military Personnel Files (OMPF) without an unwarranted invasion of privacy include: • Name, Service Number, Dates of Service , Branch of Service, Final Duty Status , Final Rank, Salary, Assignments and Geographical Locations, Source of Commission, Military Education Level, Promotion Sequence Number, Awards and decorations (eligibility only, not actual medals), Photograph, Transcript of Courts-Martial Trials, Place of entrance and separation



Another Good Resource

Veterans & Servicemembers Survival Guide

The Guide can be found here: http://www.nimj.com/documents/Su rvival-Guide.pdf

Or you can pick and choose a chapter here: http://www.veteransforamerica.org/ survival-guide/survival-guide download/

Tools to get records

   Just ask! Call the OSJA Ask for AR 15-6 investigations (Army) (usually conducted by an officer who is non-law enforcement or JAG).

The Air Force does similar “informal” investigations as well.

Military Law in Civilian Practice

Justice is . . .

“the hope of all who suffer, the dread of all who wrong.” John Greenleaf Whittier

What is Military Justice?

 “Military justice is to justice what military music is to music.” – Groucho Marx

Applies to:

US Army US Air Force US Navy US Marine Corps

Military Justice - An Overview

 Who is subject to Military Justice?

 Why do we need a separate system?

 What is the legal basis for our system?

 Overview of the court system.

 Evolving nature of the system.

 Conclusion

Jurisdiction - Who is subject?

 Active Duty Soldiers, Sailors, Airmen, Marines - Coast Guard in time of War  Reserve/National Guard in drill status – also subject to State Military Code  DOES NOT apply to civilians except: – Martial law declared – No competent civilian courts exist

What crimes are subject to military justice?

 Any crime contained in the UCMJ  Under the Assimilated Crimes Act, state law crimes that are not covered may also be prosecuted  Applies On- and Off-post  May have concurrent jurisdiction with local law enforcment  May be prosecuted by “two sovereigns”

Why a separate system?

 Unique disciplinary needs of the military.

 Need for a quick, efficient system.

 Need for worldwide applicability.

Legal Basis for the Military Justice System

 Constitution - Article I, Section 8, Clause 14, states that “Congress shall have the Power . . . [t]o make Rules for the Government and Regulation of the land and naval forces.”

Evolution of the system

 Original Articles of War - derived from the British Code of 1765  Revised in 1806  Revised during the War of 1812 and Seminole Wars  Changed again in 1874  Overhauled in 1917  Replaced by UCMJ in 1951.

UCMJ

 Enacted by Congress in 1950  Took effect in 1951  Provides a single source for all services  Replaced Articles of War (Army) and “Rocks and Shoals” (Navy)

Manual for Courts Martial

 Enacted by Executive Order of the President  Constitutionality has survived, but is still subject to question in individual cases  Sets out RCM, MRE, NJP, and Punitive Articles

MANUAL FOR COURTS-MARTIAL UNITED STATES (2005 EDITION)

The 2005 Edition of the MCM is a complete revision of the 2002 MCM incorporating all Executive Orders (EO) through 3 December 2004 (EO 12473 promulgating the 1984 MCM; EO 12484, 15 Nov 84; EO 12550, 19 Feb 86; EO 12586, 3 Mar 87; EO 12708, 23 Mar 90; EO 12767, 27 Jun 91; EO 12888, 23 Dec 93; EO 12936, 10 Nov 94; EO 12960, 12 May 95; EO 13086, 27 May 98; EO 13140, 6 Oct 99; EO 13262, 11 Apr 02; EO 13365, 3 Dec 04). Copies of each Executive Order can be found in Appendix 25.

Other Sources

 Regulations (DoD, Army, USAFACFS)  Court Decisions

“I beseech your Majesty, let me have Justice, and I will then trust the law.”

Spoken to King James I, 1603

System of Courts-Martial

 Dates back to 1776  Older than Federal Ct.

 Civilian Appellate Ct. established in 1950  Currently, three levels of appeal  ACCA (ACMR)  CAAF (COMA)  United States Supreme Court by writ of certiorari

Army Court of Criminal Appeals (ACCA)

 Replaced the Army Court of Military Review in 1994  Three Judges - all Senior Judge Advocates  Reviews all cases in which the following are adjudged: – death penalty – punitive discharges (DD, BCD, Dismissal) – confinement for one year or more

Court of Appeals for the Armed Forces (CAAF)

 Replaced COMA  Composed of 5 Civilian Judges  All lawyers  15 year terms  No more than 3 from any political party  Named by Pres./S.Ct.

Supreme Court of the United States

 Has authority to hear appeals from CAAF  Grants hearing by discretion  Must apply for

Writ of Certiorari

 4 Justices must vote to hear case; 5 needed to reverse a decision

It is the function of the courts to make sure, in cases properly coming before them, that the men and women constituting our Armed Forces are treated as honored members of a society whose rights do not turn on the charity of their military commander . . . . A member of the Armed Forces is entitled to equal justice under law not as conceived by the generosity of a commander but as written in the Constitution.”

Justice Douglas, 1968

Military Justice - an evolving concept

“The laws of a state change with the changing times.”

Aeschylus



“Laws and institutions must go hand in hand with the progress of the human mind.”

Thomas Jefferson

Still Changing

 The UCMJ is subject to evolution in three ways: – Congress or the President changing the Rules – CAAF’s interpretation – The Supreme Court’s interpretation

References

      AR 26-27 (Rules of Professional Conduct for Lawyers- esp. Rules 1.13, 2.1 and 3.8) Manual for Courts-Martial (MCM) 2008 AR 27-10 (Military Justice) DA PAM 27-9 (Military Judge’s Benchbook) www.jagcnet.army.mil

LAAWS XXI CD/DVD set

Critical Forms

    DA 3881 (Rights Warning/Waiver) DD 458 (Charge Sheet) DA 2823 (Sworn Statement) DA 2627 (Article 15 Record)

Preliminary Considerations

 Center of Gravity in the military justice system prosecutor (e.g.- referral and disposition of  for requests for clemency).

Commanders at all levels play personal roles in the MJ process. No superior commander is  disposition of alleged misconduct. Caveat The commander (and therefore her prosecutor- Trial Counsel) is expected to balance the critical need for good order and of soldiers in general and the accused in

No Action Commander’s Disciplinary Options “The Spectrum” Adverse Admin Actions Admin Separation Article 15 Court-Martial Consequences to Soldier

Roles in Military Justice System

Company/Battery Commander  Receives initial report of misconduct (RCM 301), makes a preliminary inquiry into the alleged offense (RCM 303) and makes and initial disposition decision on any case for which authority has not been withheld by a superior commander (RCM 306)  Can dispose of charges by dismissal, administrative action, Company Grade Article 15 (see Part IV, MCM and AR 27-10, Ch. 3) or forwarding to superior commander for disposition   Typically also is the commander who orders probable cause searches or health and welfare inspections (MRE 313-316) Can order suspects into pretrial restraint or confinement with the support of his MJ office and with proper available facilities (see, generally, RCM 304-305)

Battalion Commander

    Can dispose of charges by dismissal, administrative action, Field Grade Article 15, forwarding to a subordinate or superior commander for disposition or by referral to a Summary Court Martial (MCM Ch. 3-IX, DA PAM 27-7) Can order probable cause search (rare) or a battalion-wide health and welfare inspection Receipt of properly sworn charge sheet (DD 458) acts as a “filing” of the charges for Statute of Limitation purposes (10 USC 843, RCM 403).

Authorized, as a Court Martial Convening Authority, to enter into pretrial agreements with the accused (RCM 705)

Brigade Commander

     Can dispose of charges by dismissal, administrative action, Field Grade Article 15, forwarding to a subordinate or superior commander for disposition or by referral to a Summary, Special or Bad-Conduct Special Court Martial (RCM 404) Referral to SPCM or BCD SPCM requires “adequate pretrial advice” from the Staff Judge Advocate (RCM 406) Can direct probable cause searches or health and welfare inspections within his command (very rare) Is authorized to begin a formal pretrial (Article 32) investigation (RCM 404, 405, 10 USC 832, DA PAM 27-17) Authorized, as a Court Martial Convening Authority, to enter into pretrial agreements with the accused (RCM 705)

General Court Martial Convening Authority

     Can dispose of charges by dismissal, administrative action, Field Grade Article 15, forwarding to a subordinate or superior commander for disposition or by referral to a Summary, Special, Bad-Conduct Special or General Court Martial (RCM 404) Referral to GCM requires “adequate pretrial advice” from the Staff Judge Advocate (RCM 406) Is authorized to begin a formal pretrial (Article 32) investigation (RCM 404, 405, 10 USC 832, DA PAM 27-17) Authorized, as a Court Martial Convening Authority, to enter into pretrial agreements with the accused (RCM 705) Lowest authority who may grant immunity to an accused to compel testimony against the privilege of self-incrimination (RCM 704)

Trial Counsel (10 USC 838)

      Clerk (Panel, Dockets, Records) Procurer of witnesses and evidence for both sides General “gofer” (Lunch, Escorts, Bailiff) Command’s chief advisor on MJ issues Advocate for the Government’s case USC 821)

Defense Counsel (10 USC 838)

   Advocate for the Defense case Must be detailed to all SPCM and GCM Advises soldiers on Article 15s, adverse personnel actions and other issues adverse to command such as suspect rights

Military Judge

  Judge in the traditional sense (RCM 801) Once charges are referred for trial, has broad discretion over the case, even above and beyond the Convening Authority (the bomb is a granted Motion for Finding of Not Guilty (RCM 917)

Search and Seizure

    Three basic types: probable cause (MRE 315); Consent, plain view, automobile, etc., with military considerations (MRE 314) and “health and welfare” PC search can be authorized on any military property (e.g., barracks, foot/wall lockers) and any non government property on a government facility (e.g., POV on a military post). On non-government property off government facility, get civilian authority cooperation PC Search can be authorized by commander or by a neutral, detached magistrate (rare in deployed situations) PC Search can be based on written sworn or unsworn statements of witnesses communicated in any reasonable way to the authorizing official. The authority to search can be verbal, but I recommend reducing it to writing ASAP. The Army has forms (DA 3744 and DA 3745), but memoranda for record will do.

Interrogations/Self-Incrimination

 UCMJ Art. 31 (10 USC 831) is the main 5 th Amendment as interpreted through Miranda  she is not in custody The accused can give incriminating against herself in a variety of situations in the Army investigation, informal commander’s inquiry, etc., statement in court is to have anyone acting or Trial Counsel if investigation takes a turn Form 3881

Nonjudicial Punishment

      Part IV, MCM; AR 27-10, Ch. 3. and Appx. B Article 15 UCMJ- preferred method of handling minor offenses Accused always has right to refuse and demand Court-Martial Accused MUST be afforded opportunity to seek counsel except in Summary Article 15 procedure Officers- seek GO Article 15 Key: fill out DA 2627 properly and know sequence of events in reading it to the accused

Company/Battery Grade Article 15

       Admonition or Reprimand Reduce E4 and below one grade Forfeit seven days pay at rank held after Article 15 (compute at reduced rank, even if suspended) Restriction for 14 days Extra Duty for 14 days Correctional Custody for 7 days (E1-E3) Bread and water for 3 days (embarked on vessel only- E1-E3)

Field Grade Article 15

       Admonition or Reprimand Reduce E4 and below to E1 or any intermediate grade; Reduce E5 and E6 one grade Forfeit ½ of one month’s pay for two months at rank held after Article 15 (compute at reduced rank, even if suspended) Restriction for 60 days Extra Duty for 45 days (combinations of Restriction and Extra Duty cannot exceed 45 Correctional Custody for 30 days (E1-E3) vessel only- E1-E3)

Summary Court Martial

    1301; 1303); No right to counsel at proceeding (DA PAM 27-7; MCM Appx. IX) Officers, cadets and midshipmen exempt from SCM (RCM 1301 (c)) Maximum punishments (RCM 1301): • 30 days’ confinement (E4 and below) • 45 days’ hard labor w/o confinement (E4 and below) • Forfeiture ½ one month’s pay (E4 and below) • Reduction to lowest enlisted grade (E4 and below) or one grade (E5 and above) • No Punitive Discharge (RCM 1301)

BCD Special Court Martial

   (Officers SHOULD go to GCM) Accused and government both represented by counsel; presided over by Military Judge- 3 Accused’s motion Maximum Punishments (Enlisted) • Confinement for one year • Reduction to lowest enlisted grade • Total forfeitures of pay and allowances

General Court Martial

   Tries any member of the military (10 USC 817) At least 5 members (10 USC 829 (b)) May impose any punishment authorized under the Code to any soldier (10 USC 818)

Sentencing

   Bifurcated procedure (RCM 1001 (a)) Accused has the right to ask for relaxed rules of evidence (RCM 1001 (c)(3)- Good Soldier Books, “He’s a Good Boy” letters from Mom, etc.

Military Judge does not know the quantum of a Pretrial Agreement before she passes sentence (DA PAM 27-9, Ch. 2-2-8); panel does not even know there is a PTA (RCM 705 (e))

Common Problems

          Improper filling out of DA 2627 (no/improper improper administrative data) Punishment imposed before adjudication Punishment exceeds commander’s authority Suspension of punishments for longer than is authorized (120 days for Article 15s/SCMs) Commander’s actions/words that indicate the he is not impartial or has prejudged the case Unit forgetting/not providing for accused NCOs/junior officers jumping into role of commander Improper pretrial restriction/confinement Failure to involve CID at the right time Failure to protect accused’s right against self incrimination in administrative proceeding or

And now, time for a game of:

IS THIS A CRIME?

 Having unclean arms or equipment.

 Using insulting language toward a sentry.

 Refusing to submit to a dental exam.

 Straggling.

 Using contemptuous language against the President or Vice-President.

 Concealing evidence of another’s crime.

YES!

 Violation of Arts. 134 & 92 (Failure to obey a lawful order - confinement from 3-6 mos.)  Art. 134; 3 mos.

 Art 92; from 3 mos. to 2 years.

 Art. 134; 3 mos.

 Art. 88; 1 year confinement.

 Art. 134; (Misprision); 3 years.

In conclusion,

Words to live by:

 “You should never wear your best trousers when you go out to fight for freedom and liberty.” Henrik Ibsen

 Our system of military justice represents our best efforts at balancing two competing needs: first, the need for maintaining good order and discipline, in the interests of national security; second, the need for respecting the rights of every citizen, in the interests of our very survival.

Our system is not perfect, but . . .

It is “a system of military justice that is notably more sensitive to due process concerns than the one prevailing through most of our country’s history. . . .” Justice Ginsburg, concurring in

Weiss v. U.S.

(1992)

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