Blinded Veterans Guide to The

2013-08-28-Military Justice

Seminars@Hadley

Blinded Veterans’ Guide to the

Military Justice System

Presented by

Tom White – Clinical Director, Veterans Legal Support Center & Clinic, John Marshall Law School

Moderated by

Larry Muffet

August 28, 2013

Larry Muffet

Welcome to Seminars@Hadley. My name is Larry Muffet. I’m a member of Hadley Seminars team and I also work in Curricular Affairs. Today’s seminar topic is the Blinded Veterans’ Guide to the Military Justice System. Our presenter, today, is a distinguished lawyer and Army veteran. Tom White is the clinical director of the Veterans’ Legal Support Center and Clinic at the John Marshall Law School. He is also a former JAG officer and taught Constitutional Law at Westpoint. Tom is a graduate of Purdue University and the Valparaiso University School of Law. Today, Tom will be sharing his knowledge and insights on the Military Justice System.

Tom White

So that’s a little bit about my background. It’s a little bit of everything, all over the place. The thing about being a JAG officer and as far as our knowledge, we have a lot of knowledge about an inch deep and a mile wide, especially in the Army. The Air Force, I’ve had an opportunity to spend a year studying with the Air Force JAG officers. Also, with Marine JAG officers and there was one Coast Guard officer in my Master of Laws class.

And this Master of Laws was in Military Law and, of course, it covers a wide range and one of those areas being very important to the military because it’s a unique system outside of our civilian system and that is our Military Justice System, which just kind of like my earlier officer time as a Military Intelligence Officer. Yes, I know, typically Military Intelligence, Military Justice, they’re an oxymoron.

I get that a lot and I hope, with some of the recent events that have occurred and that have been obviously publicized, that there has been a little bit more education to the public about our system; but there’s just such a lack of knowledge of the system. Not just amongst civilians, but also our own military personnel, who may have spent a 3 year term or 20 years and really never had to deal with the Military Justice System; which is good in many ways.

But on the other hand, if they were in the chain of command, they probably dabbled in it here and there. The point being is that there’s such a small percent and I just like to point out that at least the military today, with all the services, we are the 1 percenters that serve our nation. And I started that slogan on my own. I was going to get t-shirts too. But we’re the real 1 percenters and because of that, there is this huge gap of knowledge of our system because we are identified, and the Supreme Court has identified us being a society within a society and that goes all the way back to what is required of a good military and that is obviously good order and discipline.

And then, obviously, the other things that the Army and Air Force and the other services strive for and that is duty, courage, those types of things that are emphasized whether you’re going to your Air Force training or your Army initial training. It’s still trying to implicate those values and they’re important because they all end up somewhere along the line intersecting with our Military Justice System.

So to kind of give you a brief overview of some of the things with the Military Justice System, how about a quick story? Just three or four days ago, I was listening to a particular news channel and they were talking about the verdict in the Bradley Manning – I’m sorry. We won’t name names. This guy who is our – anyway. So in the Bradley Manning case, and there was a Civilian Federal Prosecutor. Federal prosecutor.

Now the thing about the military is we are also federal. We use all the same federal rules of evidence. However, our military punitive laws such as – they’re different that you don’t have a civilian equivalent. You know, you don’t show up to work at Wendy’s or wherever, next time you show up, you’ll get your walking papers. Well in the military, as you know, you can be charged with FTR. Failure to Repair, under Article 86, for a short not going to your place of duty or if you’re gone for an extended period of time, AWOL. And if you’re up to 30 days, potentially desertion.

And all those could, potentially, end up with some type of punitive action and we’ll get into that a little bit more. The different types of punitive action as compared to administrative action. But this discussion on this news channel. So you had this Federal Civilian Prosecutor talking about that Bradley Manning had been sentenced to 35 years and that he wasn’t going to serve the full term and all that and that he would roughly serve 10 years or so.

And the thing about that – and what was great is the former JAG, who was the other guest, let her continue and she finished. And then the news anchor turned to the gentlemen and said, so what is your take on this? He said, well first I’d like to point out that the sentence that he received in the military, it’s different as it relates to the sentence. He will serve two-thirds of that sentence guaranteed. If he’s good, while he’s at Leavenworth, he will get five days credit per month for good time credit.

The civilian prosecutor was a little embarrassed, but it’s not unusual for even someone of that stature not to be familiar with our sentencing guidelines because they are different. Along with our punitive – our Articles 86, AWOL. Again, this is the Uniform Code of Military Justice. All services follow the UCMJ. So it’s not just the Army. They all use the same manual for Courts Marshall. The MCM.

Obviously, it’s available on the Internet. The manual for Courts Marshall and those punitive articles along with the rules of evidence are also included in there. But in particular with some of those punitive articles, they’re specific to the military and there’s a reason for it and the reason I’ve already discussed. You have Article 88. You cannot disparage the Commander in Chief, the Vice President, Congressman, State Representative, anything like that while you are in uniform or really anytime. If you’re active duty, it’s a big no no. And you can be punished for it and it has occurred in the past as far as punishment for things like that.

But there are also similarities too. I mean, we have Article 118, which is murder. We have Article 120, which is rape. Article 125, forceful sodomy. Then we also have the catchall, which some of you may have heard of, at least for officers. Conduct unbecoming of an officer and a gentleman. I love that as a prosecutor, because if I don’t have the evidence to prove that say this officer at a particular fort – actually, he was a Westpointer, got so drunk, he broke into the golf course shed, somehow put on a dog collar and decided to completely disrobe. And then he got a golf cart and decided it was his job to go around and collect all the flags on all 18 holes.

Now, obviously, your Military Police are always Johnny on the spot on stuff like that and – yes, they did catch him. They were curious why he was naked as a J-bird and could not understand the dog collar. Anyway, for something like that, it’s just much easier for a military prosecutor just to charge the individual with conduct unbecoming of an officer and a gentleman because all I got to do is I got to say he did or didn’t do something and by the way, it was contrary to the good order of discipline or it was definitely conduct unbecoming an officer. So you only have to prove two charges. Again, that’s unique to the military.

So let’s back up a little bit and let’s talk about administrative actions. Administrative actions, they fall up under the Military Justice System because it is another way that essentially, the commander, which is that – when we say commander, the first level commander would be your company-level commander. Your captain. That individual would have in his or her authority to initiate either administrative or punitive action.

So let’s start with administrative action. Action that may – let’s say you showed up late to your physical training formation or you showed up late to work. What could the commander do in order to get that young military member’s attention? Well, in his little kit bag, he has a number of things. The one thing, he could counsel the young serviceman and say, you know, this will not be tolerated. He can do it verbally or do it written, or he could do a little bit of what we call corrective training and these things that I’m telling you now, they’re all in the manual for Courts Marshall. They’re all available and listed.

So what could the commander do? The commander could say, okay, for the next week, you will show up 30 minutes early. You will stand outside the First Sergeant, the Gunnery Sergeant’s office and you will escort the First Sergeant or whatever over to your place of duty or over to the physical fitness field. That would be corrective training. Now, is that punishment? No. What you’re doing is you’re addressing, essentially, what would be considered his inability to properly learn how the military life works. You’re not at Kmart anymore or whatever. So you want to get their attention and these administrative actions allow you to do that and they can increase in severity.

So this individual continues, does not learn from escorting the First Sergeant. Well, administrative action could also allow the commander, if the soldier or sailor or airman is of the rank of E4 or below, the commander administratively, just by filling out a form, can administratively reduce the soldier one rank. Why and how and what’s the basis? Well, he or she is not acting or working at the level of their rank and so, therefore, the commander can administratively reduce them one grade.

Now, that may not sound like a lot, but when you’re talking money, that’s a lot. And also, when you came in with all your buddies, you’re all the same rank, and now you’re one rank lower than the rest of your buddies and they’re telling you what to do. That gets to be a little bit, I guess you would say, irritating. Is it punishment? No. That is administrative action allowed within the regulations.

Some other more severe administrative actions. Let’s say there is a pattern of misconduct where the soldier is late for work, he shows up hot on a urinalysis or what have you. There are available, as long as it’s documented each time – because that’s the other thing. In order for me to, as a former military prosecutor, to handle a case like that, I would need good documentation, if this is going before an administrative board, to convince them that this soldier should not be retained and should be administratively discharged out of the Army. So there are various regulations in all the services that allow for this.

There are three types of administrative discharges. There are only three and the first one would be honorable. Shouldn’t pose any issues there. You should have heard that one before. The second being general, under honorable conditions; and the worst of the three is being an other than honorable discharge. Now why would that even matter? Well, it matters in a few ways. It matters because on your DD214 that the individual would get when they’re forced out, it will reflect at the bottom, the reason and it will state the type of discharge.

So when they go for employment or let’s say VA benefits. That can have an effect on whether or not they get employment, whether or not they’re eligible for certain benefits because it all correlates. The VA recognizes if you received an honorable discharge, you’re eligible for all the benefits; but as you get a lesser form of discharge, the availability of those benefits decreases. This is where there’s another area of disconnect between the barracks lawyers and civilians and then those that actually practice in the field, the poor JAG lawyers.

The other area that you can receive discharges – and I’ve talked to you about administrative. Let’s move over to punitive. And punitive action, there are a couple of types of punitive action. Punitive action, essentially, what it is, it is action that really can take away your liberty and liberty is defined in many ways but one that most people would associate it with would be your freedom of movement. You being, maybe, put behind bars or restricted to an area or not allowed to go anywhere, that type of thing.

There are, essentially, two areas of punitive action. Again, comparing it to administrative, those things that I mentioned, those are not considered punishment. Even though they may end up with a negative-type discharge, it is not punishment in the eyes of the military. So with punitive action, you have what is called and it is covered in Article 15 of the UCMJ and that is non-judicial punishment, otherwise known as a Captain’s Mask or pretty much Article 15 in the Air Force and the Army and then I think the Navy and the Marine Corps are both Captain’s Masks.

Essentially, depending on the level of commander, you can have a company-grade Article 15 or you look at the possibility of 14 days of extra duty. Now this is duty on top of once you’re done at work, then you’re mopping the floors or waxing the floors or what have you. Fourteen days restriction. Yeah. Holiday season is coming up. Typically, as you probably all know, this would be a four day weekend for most people in uniform and, of course, unless you’re deployed; but this would be a four day weekend and if you are currently under restriction, you’re not going anywhere and you’re going to sit in your barracks room and contemplate your life or what have you.

Like in The Great Escape, the baseball off the cinderblock walls. I don’t suggest that because somebody’s going to complain and then the commander’s going to show up. Okay, anyway. After receiving 14 days restriction, you can be reduced, potentially, by one grade and you can lose pay. That would be company-grade non-judicial punishment. The next level, which is much more severe, can be given by your battalion-level commander, your brigade-level commander, or and what I’ve seen in and assisted in many, many, many times when I was a legal advisor to the 5th Corps Commander, General Officer Article 15s.

Yes, I have drafted and been the prosecutor in the room when a full-bird Colonel receives an Article 15 and at that level, you can essentially – similar to 60 days restriction, 45 days extra duty, but the real hit is typically what – as far as officers are concerned, the real hit is the half-month’s pay for two months. So for whatever screw-up it was you did, in this particular case that I’m recalling happened to do with violation of General Order #1 in the area of operations in dealing with pornographic material and with that, there were a number of officers that were involved and they all received General Officer Article 15s. And you can imagine, whether it’s a Colonel or a Major, there were half-month’s pay for two months. That’s a lot of cash for – well, you get the idea.

So that’s one area of punitive action. Now, it does not typically lead to a type of discharge. It may if you’ve got a really aggressive prosecutor who wants to take that now and turn it around and maybe administratively request that the officer resign their commission. Which is possible and that sometimes happens.

The other area of punitive action is one that have been in the news. There’s different levels of courts marshal. You’re dealing with the Summary Court Marshal, which is the lowest-level courts marshal; which really, all it is, it is a field-grade/General Officer Article 15 on steroids because what you have is you have the individual who has been accused of doing the bad things in front of an independent selected officer. Typically, a major or higher, kind of pleading their case. That major or higher is not a JAG, has no legal training. They just listen to the evidence and they have at their disposal the potential to put that individual in confinement for up to 30 days.

Confinement being, if you were say out in San Diego, they have a facility out there. If you’re on the East coast, they have a facility in South Carolina. In the Midwest, you’ve got Fort Knox and always, the best one is Fort Leavenworth. That would be a Summary Court Marshal. You typically would do that if the offense was serious enough that a field-grade Article 15 – it’s just not enough. And also, maybe the individual already has an Article 15 and you want to send a message.