MILITARY JUSTICE

1. MILITARY JUSTICE Robert Don Gifford Assistant U.S. Attorney Lt. Col., U.S. Army Reserve JAG Corps Robert.D.Gifford@usdoj.gov Robert.Gifford@us.army.mil (405) 553-8736

2. 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=2191880

3. 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/resources.html

4. 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.

5. For the NPRC Air Force Officers and Enlisted -- September 25, 1947Army Officers separated July 1, 1917Army 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

6. 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: inquire@arch2.nara.gov. 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.

7. 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.

8. 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.

9. 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

10. Another Good ResourceVeterans & Servicemembers Survival Guide The Guide can be found here: http://www.nimj.com/documents/Survival-Guide.pdfOr you can pick and choose a chapter here: http://www.veteransforamerica.org/survival-guide/survival-guide-download/

11. 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.

12. Military Law in Civilian Practice

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

14. What is Military Justice? • “Military justice is to justice what military music is to music.” • Groucho Marx

15. Applies to: • US Army • US Air Force • US Navy • US Marine Corps

16. 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

17. 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

18. 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”

19. Why a separate system? • Unique disciplinary needs of the military. • Need for a quick, efficient system. • Need for worldwide applicability.

20. 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.”

21. 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.

22. 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)

23. 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

24. 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.

25. Other Sources • Regulations (DoD, Army, USAFACFS) • Court Decisions

26. “I beseech your Majesty, let me have Justice, and I will then trust the law.” Spoken to King James I, 1603

27. 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 System of Courts-Martial

28. 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

29. 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.

30. 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

31. 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

32. Military Justice - an evolving concept “The laws of a state change with the changing times.” Aeschylus

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

34. 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

35. 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

36. Critical Forms • DA 3881 (Rights Warning/Waiver) • DD 458 (Charge Sheet) • DA 2823 (Sworn Statement) • DA 2627 (Article 15 Record)

37. Preliminary Considerations • Center of Gravity in the military justice system – Commander. Roles we think of as prosecutor (e.g.- referral and disposition of charges; approval of pretrial agreements) and judge (approval of sentence; considerations for requests for clemency). • Commanders at all levels play personal roles in the MJ process. No superior commander is permitted to influence, directly or indirectly, a subordinate’s decision on the referral or disposition of alleged misconduct. Caveat • The commander (and therefore her prosecutor- Trial Counsel) is expected to balance the critical need for good order and discipline against the critical individual rights of soldiers in general and the accused in particular.

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

39. 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)

40. 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)

41. 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)

42. 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)

43. 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 • Must be detailed to GCM and all SPCM (10 USC 821)

44. 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

45. 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)

46. Search and Seizure • Three basic types: probable cause (MRE 315); Consent, plain view, automobile, etc., with military considerations (MRE 314) and “health and welfare” (MRE 313) • 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.

47. Interrogations/Self-Incrimination • UCMJ Art. 31 (10 USC 831) is the main consideration- gives broader protection that does 5th Amendment as interpreted through Miranda and its progeny; prohibits eliciting any self-incriminating statement from the accused, even if she is not in custody • The accused can give incriminating against herself in a variety of situations in the Army- traditional law enforcement situation, AR 15-6 investigation, informal commander’s inquiry, etc., etc. The key to keeping an incriminating statement in court is to have anyone acting under color of command authority (investigating officer, NCO, commander, etc.) to (a) consult SJA or Trial Counsel if investigation takes a turn against the accused and (b) proficiently use DA Form 3881

48. 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

49. 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)

50. 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 consecutive days) • Correctional Custody for 30 days (E1-E3) • Restricted Rations for 4 days (embarked on vessel only- E1-E3)