30 August 2009
The Department of Veterans Affairs is moving closer to simplifying the process for many non-combat veterans filing claims for service-connected post-traumatic stress disorder.
Under a proposed change published in the Aug. 24 Federal Register, VA would eliminate a requirement that a veteran must provide evidence documenting that he witnessed or experienced a traumatic event. Certain veterans, including those who engaged in combat with the enemy, and those who were prisoners of war, already are exempt from the documentation requirement.
The proposed change also does not apply exclusively to those who served in combat zones. It refers to traumatic events that are “consistent with the places, types and circumstances of the veteran’s service.”
A psychiatrist or psychologist must confirm that the traumatic event is adequate to support a diagnosis of PTSD and that the veterans’ symptoms are related to the traumatic event, according to the proposed change.
It is hoped the move also will simplify the process for VA and reduce its benefits claims backlog. VA will accept comments on the proposed change by Oct. 23, but information was not immediately available about how long it would take after that to put the new rules in place.
The change was agreed to more than 17 months ago by then-VA Secretary Dr. James Peake, at the request of Sen. Daniel Akaka, D-Hawaii.
A veteran’s own testimony alone may be enough to establish that the traumatic event happened, without corroborating evidence. According to the Federal Register notice, a veteran’s lay testimony is already sufficient in cases in which PTSD was diagnosed during military service and the traumatic event is related to that service; or in cases in which the veteran engaged in combat with the enemy or was a prisoner of war, and the traumatic event was related to that experience.
But in all other claims for service-connected PTSD under current rules, VA regulations require supporting evidence corroborating the traumatic event. The change eliminating this requirement will especially help people in combat support jobs, such as nurses, doctors and truck drivers, who may suffer from PTSD without necessarily experiencing direct combat, veterans advocates said.
Current rules require veterans to provide written verification, such as a statement from a commander or doctor, or testimony from co-workers, that they were involved in a traumatic situation in order to receive disability compensation for PTSD from VA.
29 August 2009
Action will be taken to separate a member when it is clearly established that:
a. Despite attempts to rehabilitate the soldier while enrolled in the Army Substance Abuse Program (ASAP), further efforts are unlikely to succeed; and
b. The commander determines that further rehabilitation efforts are not practical, thus declaring the soldier a rehab failure.
2. WHAT MUST THE COMMANDER DO BEFORE THEY CAN INITIATE A CHAPTER 9 FOR AN ASAP REHABILITATION FAILURE? The following must take place, unless waived under special circumstances.
a. The soldier must be formally enrolled in ASAP for substance abuse.
b. The soldier refuses to participate in the program.
c. The soldier doesn’t satisfactory complete the ASAP program.
d. The soldier lacks potential in the military due to an alcohol, drug, or other substance abuse problem.
e. If long-term rehabilitation is necessary at a civilian institute.
There is nothing in Chapter 9, AR 635-200, that prevents a separation under a different section if the case should arise.
3. PROCEDURES. The unit commander forwards the packet to the intermediate commander, who can either disapprove the unit commander’s discharge request and direct reassignment, or forward the packet recommending approval. If a soldier has six or more years in the service, the approving authority can convene a board of officers and enlisted to hear the case and make recommendations on retention and type of discharge. The approval authority has the discretion to suspend the discharge for up to six months to give the soldier a chance to rehabilitate himself/herself. Accrued leave at time of discharge is governed by AR 630-5.
4. WHAT ARE YOUR RIGHTS?
a. You have the right to consult with a military defense counsel within a reasonable time, or civilian counsel at your own expense.
b. You have a right to submit statements on your own behalf.
c. You have a right to obtain copies of documents which your commander will forward in support of his separation recommendation.
d. If you have six or more years in the active service you have a right to an Administrative separation Board.
e. You have a right to waive the above rights in writing. Failure to respond in seven days (not signing the form) means you give up all your rights.
5. TYPE OF DISCHARGE. Members separated under this program will normally be given either an Honorable or a General, Under Honorable Conditions Discharge Certificate (Para 9-4, AR 635-200).
a. Honorable: An honorable discharge will be given for proper military behavior and proficient performance of duty. If the soldier has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should receive an honorable discharge. If there are infractions of discipline, the seriousness and frequency will be evaluated. When there is a doubt, it should be resolved in favor of the honorable discharge. It is the pattern of behavior, not the isolated incident, that is important.
b. General: This is a discharge of separation under honorable conditions. A general discharge is given to a soldier whose record and performance is satisfactory. This is usually given to someone who had frequent non-judicial punishments but not for serious infractions. when this type of discharge is issued, the commander must state the specific basis for it.
6. EFFECT OF DIFFERENT KINDS OF DISCHARGES. At the present time, the only people eligible for educational benefits are those that are issued an Honorable Discharge Certificate and that serve on Active duty for a specified amount of time. For other veteran’s benefits and programs, the military gives the same entitlements for both an honorable discharge and a general discharge under honorable conditions. With either discharge, veteran’s benefits depend on the length of service and other factors. The eligibility for all other benefits are to be determined by the agency assigned to oversee such benefits.
7. TIMING OF SEPARATION: You will be separated as soon as possible. Note: Any misconduct committed after discharge is approved, but before separation (approximately 10 working days after approval by the separation authority), can still be prosecuted.
8. HOW TO FIGHT BACK IF YOU DID NOT WANT THE DISCHARGE OR IF YOU WANT AN HONORABLE INSTEAD OF A GENERAL DISCHARGE; The main way of opposing the discharge if you have less than six years of service is with statements. You may also request a personal interview with the separation authority, but he does not have to grant you one.
You can submit a statement that you write yourself, stating your side of the negative information that your commander has compiled, and respectfully stating why you want to stay in the Army or why you believe you should be given an honorable discharge. If you have requested a reassignment and been denied it, you should mention this too. You should include a positive statement about the Army.
Statements from supervisors and co-workers are also very important. If you are opposing the discharge, statements should address the negative items in your packet, and address the areas covered in paragraph 1, the basis for the action. The statements should specifically and directly comment on whether these factors are true of you. Hopefully, the supervisors will also recommend that you be retained on active duty or that you receive an honorable discharge if you are separated from the service. You should keep copies of all such letters you get because you can use them in an attempt to have your discharge upgraded, if necessary
If you are seeking an honorable discharge, the statements should specifically and directly comment on the factors listed in paragraph 5 regarding “types of discharges.” Also include copies of any good certificates, letters or awards. If your discharge is approved and you still wish to stay in the Army, you should write a letter to the Separation Authority requesting that the execution of the discharge be suspended for six (6) months so that you can prove your ability and commitment to soldier back into the Army.
This post provides general information concerning Chapter 14, AR 635-200, Separation for Misconduct. AR 635-200 contains more specific information.
I. Basis for Chapter Elimination: There are four types of Chapter 14 separation actions: (1) conviction by a civil court; (2) pattern of minor military disciplinary infractions; (3) pattern of military or civilian misconduct; and (4) commission of a serious offense. Each type is different from the others and requires separate grounds for separation.
II. Command Requirements before Separation:
(1) Conviction by a Civil Court (paragraph 14-5). The commander must believe that the specific circumstances of the civilian conviction warrant separation from the Army; separation is not mandatory. Additionally, the civilian conviction must be for an offense that if tried by court-martial, would authorize a punitive discharge, or the sentence by civilian authorities includes confinement for 6 months or more, without regard to suspension or probation.
(2) Pattern of Minor Military Disciplinary Infractions (paragraph 14-12a). The commander must provide evidence of a pattern of misconduct consisting solely of two or more minor military disciplinary infractions. The type of behavior that qualifies for minor disciplinary infractions is very discretionary on the commander’s part. Before initiating separation under Chapter 14, the commander must insure that the soldier has had adequate counseling and an adequate opportunity for rehabilitation. Rehabilitation efforts vary, but may include a transfer to a new section or platoon within the unit or to a new unit.
(3) Pattern of Military or Civilian Misconduct (paragraph 14-12b). Similar to (2) above, the commander must provide evidence of discreditable involvement with civil or military authorities that is prejudicial to good order and discipline in the Army. Before initiating separation under Chapter 14, the commander must insure that the soldier has had adequate counseling and an adequate opportunity for rehabilitation. Rehabilitation efforts vary, but may include a transfer to a new section or platoon within the unit or to a new unit.
(4) Commission of a Serious Offense (paragraph 14-12c). The commander must provide evidence of a specific military or civilian offense that the commander believes warrants separation from the Army. The offense, if tried by a court-martial would authorize a punitive discharge upon conviction.
III. Soldier Rights: Soldiers have the right to consult with a military trial defense service attorney or with private civilian counsel at their own expense and to submit matters for the separation authority to consider before the separation authority makes a final decision regarding separation. Additionally, soldiers with at least 6 years of service OR soldiers who are facing the possibility of an Other Than Honorable (OTH) discharge are entitled to an Administrative Separation Board. All soldiers pending Chapter 14 separation should consult with an attorney before making any decisions concerning the Chapter 14 separation.
IV: Separation Authority: The separation authority is normally the Special Court-Martial Convening Authority, who is typically the first colonel in the chain of command. However, if an Other Than Honorable (OTH) discharge is recommended, the separation authority is normally the General Court-Martial Convening Authority, who is typically the Commanding General.
V. Characterization of Service: An honorable, general, or OTH discharge is possible under Chapter 14 proceedings. Soldiers in an entry level status (which means they have 180 days active duty service or less) may receive an uncharacterized description of service.
VI. Separation Pay: Separation pay is not authorized.
You have been informed that your commander has started nonjudicial punishment (“Article 15”) procedures against you. This sheet is designed to help you understand the DA Form 2627 (the “Article 15” form) and to prepare you for the briefing which you will receive from your local trial defense office. If after reading this paper and hearing the briefing, you have any questions whatsoever, please ensure that you ask one of the trial defense attorneys at your local TDS office.
Along with a DA Form 2627, you should have received your commander’s supporting documents. These are the reports or statements upon which he had based his decision to offer you an Article 15. If you don’t have these with you, inform the paralegal assisting you that you need this evidence. He or she should ensure that your command gives you these documents prior to your making your decision.
1. On the first line of the form, ensure that all information about you is correct. Be sure your base pay is correct because any forfeitures of pay you may receive will be based on this amount.
2. Block 1 of this form contains a description of the offense or offenses you have allegedly committed. Read the charges carefully and think through your response to them.
3. In Block 3 of DA Form 2627, the first decision you must make is whether to have your case resolved by Article 15 procedures or whether to request a trial by court-martial. Electing to have your case resolved by Article 15 procedures does not mean that you are admitting guilt; it means that you want your commander to be the person who decides whether you are guilty, rather than a judge or a jury. There are other aspects of Article 15s you should understand before you make your decision:
a) The level of proof is the same at both an Article 15 hearing and a court-martial; all must be convinced of your guilt by the evidence presented “beyond a reasonable doubt” before you can be found guilty.
b) Whatever the outcome of the hearing, an Article 15 is not considered a conviction and will not appear in your civilian record. On the other hand, if you demand a trial by Courts-Martial and you are convicted, this would be a federal conviction that would stay with you even after you leave the Army.
c) You will not receive a military lawyer to represent you at the Article 15 hearing. However, there is also no military prosecutor at an Article 15 hearing. At a court-martial, you most likely would be entitled to be represented by a military lawyer at no cost to you, but there would also be a prosecutor present. Under either an Article 15 or a court-martial, you have the right to hire civilian counsel to represent you.
d) At a court-martial, the maximum punishment you may be facing would depend upon the charge(s) and the level of court-martial. If your command referred the case to a Bad Conduct Discharge level court-martial, the maximum punishment would probably be 12 months of confinement, reduction to the grade of E1 (regardless of your current pay grade), forfeiture of two-thirds of your pay each month for 12 months, and a Bad Conduct Discharge. The maximum punishments for Article 15’s are listed below:
(The grade of the commander imposing the Article 15 is important because it will determine the maximum punishment you could receive. If the officer is a CPT or below, it is a Company Grade Article 15; if he/she is a MAJ or above, you have been offered a Field Grade Article 15.)
COMPANY GRADE FIELD GRADE
Restriction: 14 days 60 days
Extra Duty: 14 days 45 days
Pay Forfeiture 7 days 1/2 of a month pay for 2
months in a row
Rank Reduction (E4 & below) 1 grade 1 or more grades
Rank Reduction (E5 & E6) None 1 grade (from BN CDR only)
Rank Reduction (E7 and up) None None
(Restriction and extra duty, if you receive both, they must be served at the same time. If, in a Field Grade Article 15, you get 45 days extra duty, you may only receive 45 days restriction.)
If you are thinking of asking for a court-martial, you MUST talk with a military attorney before you make the decision.
4. Should you decide to have your case resolved by Article 15 procedures, you have additional decisions to make in Block 3.
a) You may also choose whether the hearing is open or closed. An open hearing means that anyone can observe the proceedings. A closed hearing means that only you, your commander, the witnesses for you and the witnesses against you are eligible to be present for the hearing.
b) You may choose to have someone speak on your behalf if you wish, that is, do the talking for you and explain your side of the story to the commander. You are not authorized a military attorney to represent you in an Article 15 hearing. However, you may hire a civilian counsel to represent you. In many cases, however, your military lawyer will sufficiently prepare you to represent yourself. If you feel unprepared after speaking to your military lawyer, a civilian lawyer could also assist you in preparing for the Article 15 hearing.
c) You must also decide whether to present matters in your defense, mitigation, or extenuation.
* Evidence, in your defense would be something related directly to the offense you have been charged with that shows you are not guilty of it.
* Mitigation, refers to testimony or statements from people that know you as to your character, performance of duty, or other positive aspect about you.
* Extenuation, regards circumstances related to the offense which tend to make the offense less severe (like an excuse).
5. You should sign and date the form in the signature Block next to your typed name and grade.
6. When you have decided which witnesses you wish to bring before the commander and exactly what evidence you wish to present, it is a good idea to make a list of the witnesses and determine an order which you’d like them to testify. A memo for that purpose is available on my website. You have the right to have witnesses testify, assuming that they are reasonably available. The better organized your case is, the better chance you will have of defending yourself and avoiding punishment or receiving a lesser punishment. Any documents you may have that would support your version of the facts may be presented during the hearing to your commander. He should listen to all your witnesses and consider all your evidence before coming to a decision.
7. After your hearing, if your commander finds you guilty of an offense, he should give you an opportunity to present matters that will help him decide what punishment is appropriate for you. You may use the Personal Financial Statement that I provide on my website to argue that reduction in rank and forfeiture of pay will make your situation worse. You may request that all or part of the punishment be suspended. Remember, that if you commit further misconduct during the period of suspension, you will have the suspended punishment imposed AND could be given a second Article 15 for the additional misconduct. Your commander will enter the punishment imposed in Block 4.
8. In Block 5, if you are an E-5 or above, your commander will choose to have the Article 15 placed in the restricted or the performance fiche of your records. The restricted fiche is generally not viewed by promotion or school boards. If you are an E-5 or above, and have already had one Article 15 as an E-5 or above, this one will automatically be placed in your performance fiche. If you are an E-5 or above, and you are found guilty at Article 15 proceedings, one of the most important requests you can make it to have the Article 15 placed in your restricted fiche. Otherwise, it will almost surely have a detrimental impact on your military career.
9. If you feel you’ve been punished excessively or evidence on your behalf was not properly considered, you may appeal to the next level of command within 5 days. If you appeal, you should check Block 7c and provide written statements to support your position because you are not entitled to any personal appearance in front of the appeal authority (although you may request one). If you don’t submit these statements from yourself and the others who spoke for you at the original hearing, the appeal authority may never get your side of what happened. The appeal authority can take any action to lessen the punishment, but may NOT INCREASE the punishment given by your commander. If you’ve been given restriction or extra duty as a punishment and you appeal, you should request that your restriction and extra duty be suspended if the appeal takes more than five days to come down. If you so request and the appeal is not decided within 5 days, the extra duty and restriction imposed MUST be suspended until the appeal is decided. A sample request to suspend the punishment memorandum is available on my website.
Visit my website at armycourtmartialdefense.com to obtain the memorandums referenced in this posting.
28 August 2009
Know your rights if you are suspected of committing a crime, what to expect, and how to respond effectively! If you are taken in by MPs, CID agents, or called to a police station and advised of your rights, you are a suspect. You may be a suspect through rumors, or if you are implicated in a matter being investigated by the police or your unit. This guide prepares you to talk to a defense attorney. THIS DOES NOT REPLACE ADVICE FROM AN ATTORNEY!
1. BASIC RULE…KEEP YOUR MOUTH SHUT! As a suspect, it does not help to discuss the matter with anyone other than your defense attorney. Do not talk with civilian or military police or your chain of command about what you are suspected of until you see or talk to an attorney.
2. YOUR RIGHTS: Before you can use your rights you have to know what they are and why your have them. The following is a summary of your rights as a suspect:
a. RIGHT TO REMAIN SILENT AND SEARCHES: You have the right to remain silent. Provide the police with basic identification information about yourself. Tell them your name, unit, and show your ID card. Cooperate if they want fingerprints, hair samples, photographs, blood, or other things. You do not have the right to refuse or to have a lawyer present at this point. Take notice of what the police do and how they do it in order to tell your attorney. The police can search you and your belongings if you were either arrested or if they have obtained a search warrant. If the police request a writing sample or ask you to say certain phrases or words for a recording, ask to see an attorney first. Avoid problems if your request to see an attorney is denied. Comply with specific orders given to you by the police (i.e. unlock car, open wall locker, etc.). You will have to right to object in court to what the police find during an illegal search.
b. RIGHT TO COUNSEL: The Constitution gives you the right not to be questioned by the police or your chain of command without first seeing an attorney. It exists so that you do not become the prosecutor’s key witness at your own court-martial. You will be appointed a Trial Defense Services (TDS) attorney, or you may hire a civilian attorney at no cost to the government. What you discuss with an attorney is confidential. You do not have to wait until charges are read to consult with an attorney.
c. LINEUPS: You have the right to an attorney after charges are read to you, or pretrial restraints were used (confinement, restriction, revoked privileges), or you are requested to be in an identification lineup. A lineup is a big step in an investigation and if a lawyer does not monitor the police, the witness may unduly identify you as the offender. For instance, others in the lineup may be dressed differently, wear glasses, or have a beard. Ask for an attorney if you are called to be in a lineup and ensure that you cooperate if your request for an attorney is denied.
3. WHAT TO EXPECT: despite a right to remain silent, the police may sway you to tell them about the case. It is legal for them to get you to waive your rights to remain silent and to see a lawyer. Whether they follow proper steps or not often depends upon how strongly the investigator wants to solve the case. What the police say is not recorded, and you can expect that their version will not be yours at the trial. All too often the judge will accept the police version of what was done to encourage you to talk.
4. LEGAL TACTICS: Police investigators can lie to you about evidence they say they have to get you to talk to them and to get you to confess. Military courts have said the following:
"An investigator’s use of artifice or some other forms of
deception is permissible as long as the artifice is not
likely to produce an untrue confession."
Investigators my lie and say to you they found an object at the scene of a crime that has your fingerprints. They can get you to admit involvement in an incident by claiming that witnesses saw you, or that they have you on video tape, or possibly that your license plate number was recorded. They can say people heard you make incriminating statements, even if it is not true. Investigators may appeal to clearing your conscience, religious beliefs, and suggest how a lie detector test can be used if you do not tell the truth. The police may not have enough evidence to charge you with a crime unless you admit it. As long as the police are not too outrageous in their tactics to get you to waive your rights it is permitted. Be sure that if the courts give police permission to lie, it will be used to the extreme. Without help from a lawyer, it is hard to tell what, if anything, the police say is true, and you may not know if what you say is incriminating.
5. ILLEGAL TACTICS: Police cannot use force, threats of force, or threats of prosecution to make you talk. Police cannot promise that if you talk you will not be prosecuted or that you will get an Article 15. Even if they say it is urgent for you to cooperate right now, nothing will happen if you ask for an attorney to be present. No promise for special treatment can be kept; police do not have the authority. You may be told that the investigator will recommend leniency if you cooperate, and although this may be true, the offer will still stand and be better enforced with an attorney present. If an offense is investigated at the unit level, the unit commander or first sergeant may promise certain action if you agree or refuse to talk. Although you do not have as much to lose as with talking to the police, you should be cautious. Remember, the police are not only curious about the case; they aim to solve it with minimal effort. If you talk it can save them a lot of time and trouble, and it can also provide the prosecution with valuable evidence. Let your attorney negotiate with the prosecution. If you already confessed you may not have any bargaining chips left. Soldiers who waive their rights and do not have an attorney present usually regret it later. In fact, soldiers have confessed to offenses that the police could have never proven.
6. OTHER CONSIDERATIONS:
a. If you talk without an attorney present, the information you provide may not be accurately recorded. Everything you say and everything the police think you said will be recorded. But you will not be told what goes into the report. You will be asked to make a written sworn statement. The investigator types these statements as he talks to you. You must realize that the investigator wants to solve the case, and what goes in the report could be more damaging to you that you can imagine. The police know the facts and what they must prove to nail you. Unless a lawyer is present, you may be unaware that you are signing a statement under oath that contains inaccurate details. It is hard to challenge statements later in court. If you want to change the statement, you may be accused of false swearing or lying.
b. A lawyer is appointed to defend you for the sole reason that the Constitution protects you from self-incrimination. The police enforce criminal statutes to deter citizens from disobeying the law. There are laws and procedures that permit, direct, and limit an investigator’s action concerning solving a case. If you decide to retain the services of Mr. Coombs, you can be assured that he will guard your rights during an investigation and to keep the police within their legal limits.
7. WHEN YOU EXERCISE YOUR RIGHTS:
a. If you tell the police you want to talk to an attorney, all the questions directed to you should cease. If the questioning does not cease you will know that the police are out of line and you should continue to firmly ask to see a lawyer. If a TDS attorney or a civilian attorney cannot be reached, continue to ask that someone from your unit be contacted. Be persistent and never be belligerent or combative. Make an appointment to see an attorney at your first opportunity.
b. If a TDS defense attorney is available you will go to that attorney’s office or that attorney will go to the police station. The TDS attorney will talk to you in private and you can tell them everything that you know concerning the incident under investigation. Be sure to give the TDS attorney the names of witnesses who may be helpful. The TDS attorney or your civilian attorney will then talk to the police and obtain accurate information about what they know and what they do not know.
c. If you and your attorney decide that it may be to your advantage to talk to the police they your attorney can be with you during the interview. Your attorney will ensure you are questioned fairly and without coercion. Your attorney will review any written statement you make for the sake of accuracy and to be sure it contains to incriminating statements.
d. After you have been given accurate information about the case you, along with the help of your attorney, may wish to cooperate with the police. Without the assistance of your attorney, you are not in the position to decide whether you are innocent or guilty. Many soldiers make the mistake of thinking they are guilty and the only way to help themselves is to talk. Your attorney knows the law and what the police must prove in order for you to be found guilty. If you decide that you want to tell the police everything you do have the right to do so, even if your attorney advises against it. If you decide to confess your attorney should be present to make sure the statement you give is accurate. This will avoid your confessing to a crime that is more serious than the offense you may have committed, and it will prevent you from confessing to crimes that the police cannot prove.
e. Although the advice above is primarily intended to apply to police investigations, it also applied to unit investigations as well. Do not make a distinction between the two. Police usually do not get involved with a case unless it involves serious misconduct. Unit investigations usually deal with minor breaches of discipline. Consequently, it may not be important to always invoke your rights when questioned by your commander or first sergeant. For example, you may be late to formation and your first sergeant reads you your rights and wants to know why you were late. If you were late because you had a flat tire, then it is probably best to admit you were late so you can give him your reason for being late. Responding to this type of questioning so you can defend yourself may put an end to the matter on the spot. Be sure to use your judgment in cases involving minor disciplinary infractions, but for more serious incidents you should discuss the matter with an attorney.
8. AFTER THE INVESTIGATION:
a. Once an investigation is completed a copy of the final police report is sent to your unit commander and the prosecutor. The commander will discuss the case with the prosecutor to select what level of action is appropriate. The selection depends on the seriousness of the offense, the facts and circumstances of the case, and the type of job you have done as a soldier. Your commander may decide to do nothing about the matter, or your commander may decide to give you a reprimand or take other administrative action against you. The commander may offer you an Article 15 or refer the matter to a superior officer for a Field Grade Article 15. If you are found guilty of an offense with the Article 15 process, the punishment is limited and it is not a federal conviction.
b. If your commander feels that the case is too serious for Article 15 punishment they may recommend trial by court-martial. The case will then be referred to your battalion or higher-level commander for action. Your case may be referred to one of four levels of court-martial.
c. A summary court-martial (SCM) is the lowest level of court-martial. A line or staff officer is selected by your battalion commander to investigate the charges and to decide upon your guilt. If you are found guilty, the summary court-martial officer recommends a punishment to your battalion commander, who in turn may approve all or part of the recommended punishment but may not increase it. You do not have the right to a military attorney at a summary court-martial, but you may hire a civilian lawyer to represent you. A finding of guilty at a SCM is not a federal conviction. The maximum time of confinement from a SCM is thirty (30) days.
d. You have the right to be represented by a military attorney at no cost to you at a special or general court-martial OR you may hire a civilian lawyer at no expense to the government to represent you. Conviction by either of these types of court-martial is a federal conviction. If your command sends your case to a special court-martial (SPCM), the maximum punishment you could receive is twelve months of confinement, reduction to E1, and forfeiture of two-thirds pay per month for twelve months. Your case may instead be sent to a bad-conduct discharge special court-martial (BCD-SPCM) or a general court-martial (GCM). A BCD-SPCM may adjudge the same sentence as a SPCM, but can also discharge you from service under a bad-conduct discharge. A GCM may adjudge any sentence up to the maximum authorized by law for each offense with which you were charged. This may include a dishonorable discharge or a bad-conduct discharge, confinement, forfeiture of all pay and allowances, and reduction to E1. Before a case is sent to a GCM an investigating officer will be appointed to examine all the charges and evidence to determine whether the evidence supports each charge. You have the opportunity to be present during this Article 32 Investigation and have your attorney question witnesses against you.
9. DO’S AND DON’TS: Below is an outline of guidelines that you must keep in mind if you are a suspect:
a. If, for some reason, you decide to waive your rights and talk to the police, never lie to them. If you talk and do not tell the truth, then you can expect to be charged with false swearing or false official statement. You don’t need this.
b. Do not get into trouble while you are under investigation. Do not give you commander a reason to limit your privileges or to put you into pre-trial confinement before the trial even commences. Engaging in misconduct while you are suspected or charged with offenses is devastating to your case. You must not do anything illegal or anything that even “looks” illegal. Pick your friends carefully. For example, if you are suspected of or charged with buying or using ecstasy in a club downtown, do not continue going to the same club or hanging out with people that go to that club or are expected of buying or using the same drug.
c. Do not make statements to anyone about the case under investigation. “Anybody” include “everybody”: CID agents, MPI, MPs, social workers, psychiatrists, your commander, your first sergeant, platoon leader, platoon sergeant, squad leader, section chief, coworkers, friends, roommates, drinking buddies, girlfriends or boyfriends, and even family. All of these people can be potential witnesses against you, and the prosecutors will not hesitate to question those close to you.
(1) Statements are characterized in many ways; sworn or unsworn, written, oral, signed or unsigned, verbal and or physical (a nod of your head to answer a question is a physical statement).
(2) Statements related to the offenses can be the following: Admissions of guilt; partial admissions of guilt; denials of guilt; comments about the circumstances of the offense. It can include statements that might establish a motive or intent for the offense. For example, a soldier is charged with stealing money. This same soldier then complains constantly about money problems and debts. These statements may later be admitted into evidence against that soldier at their court-martial to establish his motive for stealing.
(3) Do not put your roommate, girlfriend or boyfriend, or friends in the position of having to lie in court to protect you. If you talk to these people, do not tell them anything incriminating and do not lie. If they ask you about the case, tell them your attorney advised you not to discuss the case. Following this advice is the best way to hold your bargaining position in the case.
d. You duty performance from now on should be outstanding!
(1) Allegations or charges against you, in effect, puts you under a microscope. Your chain of command will watch you closely. If you get a bad attitude, show disrespect, display poor duty performance, neglect your appearance and bearing, you may lose support from your chain of command. You may also risk pre-trial confinement, restriction, and additional charges.
(2) Draw up a list of people who know a little about the incident under investigation . Think of the people who can testify about your character and duty performance. Give this to your attorney and provide your attorney with specific and accurate details of what you know. Do any tasks your attorney gives you to assist in your defense.
e. Do not talk to victims of an offense or other persons who may be government witnesses. It is a separate and serious offense to threaten, bribe, or make promises to witnesses. Let your attorney do the talking to all government witnesses.
f. Do not lie to your attorney or anyone else about your case. If you do, it will haunt you later. Keep your attorney informed of any developments in your case.
g. If anyone questions you about these offenses, tell them you wish to remain silent and to consult with an attorney.
Contact the law firm of David E. Coombs for a free initial consultation.
27 August 2009
Your attorney's job (depending on the goal of your Article 32) is to do everything he can to make the government actually work. If done effectively, the attorney can make the experience a painful one for the TC, discover a lot about your case, and show the client how the attorney will fight for them at trial.
General Rules that Govern an Article 32
The rules that govern an Article 32 hearing are straightforward. RCM 405, case law, and DA PAM 27-17 are your sources. It is important to note that while the rules of evidence generally do not apply to the Article 32, MRE 301, 302, 303, 305, 412, and the rules of evidence regarding privileges do. I found that just by reading through RCM 405, you will see how an effective advocate can really control the flow of the Article 32.
Preparing for the Article 32
When preparing for the Article 32, I review the sworn statements and other case related documents. After reviewing this documentation, I contact all of the witnesses and start investigating the offense myself. I never rely on CID or MPI to do the work for me. That being said, I always make sure to go look at the CID or MPI file myself. I never rely upon the TC to make an accurate or complete copy of their files. In my experience, they rarely do. You would be surprised how many times I have obtained statements from the CID file that the TC did not have.
Investigating the case means I speak to each of the witnesses. In most instances, I never take a sworn statement from a witness (if a defense counsel does take a sworn statement, it will be discoverable by the government). Instead, I simply take detailed notes. Once I feel that I know what witnesses will be required, I list them on my witness list request. I think it is a good idea to hear from everyone whether they are good or bad for your case. This way, you can lock them into their testimony and better plan for trial. The one exception would be if the government were not aware of the witness.
Questions at the 32
I ask only opened ended and non-leading questions of witnesses. These are questions that start with who, what, where, when, why and how. I also like asking “then what happened next” questions. When I ask these questions, I am trying to flush out as much information as possible. This is important because I never want to be surprised later at the court martial.
This method of asking questions will take care of the “making it painful for the TC” part. When I do this, the TC will have the tendency to want to complain. By thoroughly understanding RCM 405, I am able to put a silencer on the TC's complaints.
Specific Rules of Interest
The first gem to be familiar with is the discussion to RCM 405(a) “The investigation serves as a means of discovery.” I use this rule to argue why I should be given leeway when asking questions or for production of witnesses and/or evidence. This also achieves the second stated purpose of an Article 32 - discovering everything about your case.
Fact Gathering for Motions
RCM 405(e) and the discussion to it supports a client's right to bring in other issues to the Article 32 such as, inquiry into the legality of a search or admissibility of a confession. Recently, I used this provision to dive into a unlawful pretrial punishment issue under Article 13 of the UCMJ. Having the witnesses under oath made make my Article 13 motion that much easier.
Production of Witnesses
The production of witnesses is usually the most hard fought issue at an Article 32. I make sure that the Investigating Officer (IO) knows that they decide witness production not the TC. TCs have a habit of acting as if the denial power is theirs to wield. Generally, if the witness is relevant to the investigation, not cumulative, and reasonably available then they should be produced under RCM 405(g).
Whether a witness is available or not is governed by RCM 405(g)(1)(A) and (g)(2)(A). The rule states that “a witness is ‘reasonably available’ when the witness is located within 100 miles of the situs of the investigation and the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on military operations of obtaining the witness’ appearance.”
Normally what this means is the government is going to oppose the production of most out of town witnesses. I always press the IO with the discussion to the rule that talks about using a balancing test when determining availability. Specifically, the rule states that the “more important the testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to permit nonproduction.” The discussion also references the possibility of changing the time and place of the investigation to permit appearance of the witness.
The analysis has one additional wrinkle if the witness is a civilian. If a civilian witness refuses to testify, then under RCM 405(g)(2)(B), they are unavailable because a civilian witness cannot be compelled to attend a pretrial investigation. I always make sure to request that the IO contact the witness themselves to ensure that the witness does not want to attend either in person or by telephone.
What to Do When Production is Denied
If the IO determines that the witness is not available or simply decides they are not relevant, I get them to state on the record the basis for their determination. This can later be the grounds for my request to ask the military judge to reopen the Article 32. Additionally, to preserve the issue, I always object to the IO considering any alternatives to live testimony (unless I decide it is okay to conduct the witness questioning by telephone).
A good defense counsel should understand that RCM 405(g)(4)(A) covers alternatives to testimony when witnesses are not produced. This rule allows your defense counsel to prevent the IO from considering unsworn statements (unless time of war), stipulations of fact or expected testimony, or offers of proof of expected testimony. What this rule means is that CID reports or CID agents testifying what someone else told them is not allowed. I never let the TC get away with just calling the CID or MPI agent! I make them work by holding their feet to the fire on what an IO is allowed to considered.
RCM 405(h)(1)(A) states, “the defense shall be given wide latitude in cross-examining witnesses.” I use this section to argue again, why I should be allowed to ask just about any question I want to ask. I would not be afraid of arguing with the IO on this or any other issue. Their opinion is advisory. Even if they see things your way the government doesn’t have to follow the IO’s recommendation. So use the Article 32 to suit your ends and get the most bang for our buck.
Ruling On Objections
According to RCM 405(h)(2), the IO is not required to rule on objections. When the TC objects to something. I argue to the IO that they are only required to note the objection and not rule on it. In other words, I should be allowed to do whatever it is that I am trying to do.
I also always request that each witness review the summarized version of their Article 32 testimony and sign that they believe it is accurate. DA PAM 27-17 allows for the DC to request this. At trial, being able to say the witness reviewed their summarized transcript and signed it memorializing that it was accurate will help me impeach the witness if they try to change their story during the court-martial.
Finally, having a thorough 32 where you flush out the good and the bad is an excellent way to test the strength of the government's case. By forcing the government to go through a dry run of a contested court martial at the Article 32, I can help you make informed decisions in your case. The whole goal being to achieve the best possible outcome.
26 August 2009
My client was charged with rape and committing indecent acts with his step-daughter. From my perspective, I thought the case had gone well. While I believed he would be convicted of the indecent acts, I thought he had a chance of being acquitted of the rape. The case continued in his absence. It turns out I was right and he was acquitted of the rape.
That evening before the verdict my client left my office faced with an uncertain future. I felt that I had done everything to prepare him for the events that would transpire the next day. I went to my hotel room feeling comfortable about my representation. Meanwhile, my client was apparently feeling that his life had no value. He was not living; he was numb and hopeless enough to attempt to take his own life. I failed to see this when he left my office.
Before I go any further, I want to speak to the skeptics out there. You may believe that a defense attorney’s only job is to raise the legal defense and leave the handholding to someone else. I disagree.
Developing a good rapport with a client is important because without the client’s trust and confidence: the client might restrict the flow of information needed to prepare and present a quality defense; a poor relationship between attorney and client can result in either or both avoiding visits or telephone calls (affecting the defense); and a poor relationship can result in the client feeling that they don’t have anyone in their corner.
Defense counsel, in general, focus primarily on the legal issues in the case. However, this does not mean that they should abdicate their responsibility for identifying when a client is in trouble or when they need something more than just an attorney. A defense counsel is likely the most educated, responsible and attentive person in the client’s life at the time.
Unless a client has friends or family providing personal support, the defense counsel is probably it. Most clients have a wide range of pressures weighing down upon them. Besides the obvious concern of a conviction and confinement, many clients are forced to endure being treated like a pariah in their unit. Their family and friend support usually breaks down; they have financial concerns; and many fail to tell their parents or friends the full extent of their legal troubles. They see the government working against them with their only protection being their defense counsel.
The clients that I have represented are often first time offenders with limited experience with the military judicial system. The task that I take seriously is developing an open line of communication. The best way that I have found to do this is by showing my client that I am willing to fight for them.
I believe that it is critical to keep a client informed about the status of their case and what I am going to try to do for them in their case. The best way to achieve this goal is to schedule regular visits with a client. Even if these visits are short ten minute updates, I have found that my clients value and look forward to these regular visits. Additionally, I always ask my clients if there is anything they want to talk about at the end of each meeting. This way, my clients never leave a meeting with questions on their mind.
When you are charged with a crime or facing the possibility of separation, you have a lot of important decisions to make. Your attorney should give you time to make these important decisions (such as forum, plea, whether to testify or not). When discussing the decisions you have to make, your attorney should explain all of your options. After fully explaining all of your options, you attorney should then let you decide what is best.
I always take the time to fully explain the options available to my client. I never discuss these important issues at the last minute and expect my client to make a decision under pressure. If you find yourself in a position where you need a defense attorney, I hope you consider contacting me. I will gladly help you navigate through the UCMJ system to get back to you life with the least amount of disruption. I will do this by not just being your attorney, but someone that you can turn to for sound advice.
The goal of this blog is to provide relevant information to my client-soldiers in such a way that it is easy to understand and to apply. This blog will also provide a forum to discuss UCMJ issues that affect soldiers and their effective representation.
The materials on this site may be duplicated by anyone. If you have any areas of court-martial defense, administrative separations, or nonjudicial punishment that you would like to see covered, please feel free to contact me. It is my hope this blog will assist you in understanding your rights.
David E. Coombs