UNIT LEVEL LEGAL ISSUES

1. UNIT LEVEL LEGAL ISSUES CPT W. Lance Blanco OTAG SJA Office Telephone: 916-854-3505

2. Unit Level Legal Issues • Commander’s Disciplinary Options • Administrative Action • Nonjudicial Punishment / Procedures • Courts-Martial Levels & Punishments • Bench Warrant Procedures • Mobilization Issues

3. Command Options for Dealing with Misconduct

4. OPTIONSLight Severe

5. The Commander’s Tools AdministrativeNon-JudicialUCMJ Counseling Summ. Art 15 SCM Reprimand CG Art. 15 SPCM Pull Pass/Leave FG Art. 15 BCDSPCM Corrective Trng. GO Art. 15 GCM Rehab Tx. Adverse NCOER Bar to Reenlist Promotion List Removal Admin Reduction Admin Separation Flag

6. Adverse Adminstrative Action • Counseling and Admonition – Letters of Reprimand - Counsel IAW AR 135-178 CH 2-4 - Filing Decision – OMPF/Restricted (AR 600-37) - Allow for rebuttal • Bar to Reenlist - Discretionary Grounds (untrainable / unsuitable) - Mandatory Grounds (family care plan/weight/PT/removed for cause from NCOES school) - Periodic Review – Every Three Months • Removal from Promotion List – NGB 600-200, Sec. X • Flags (AR 600-8-2) (Regular, AFPT, Weight)

7. Administrative Separation • Board required of over six years of service or OTH sought • Available characterizations of service, Honorable, General, Other Than Honorable • No Rules of Evidence • Attorney Representation Provided for respondent • Must go to DA if over 18 years in service

8. Fundamental Principles • Train and Correct Deficient Behavior – attempt to fix the problem early • Counsel and Document All Steps Taken – create a record for training purposes and for possible use at later proceedings • Escalate Disciplinary Actions As Appropriate – allow soldier to overcome mistakes but do not allow repeated misconduct • Consult Judge Advocate Frequently – JAs work for commanders

9. Non-Judicial Punishment (NJP, Article 15, CMVC 450.1)

10. Non-Judicial Punishment • Used to address instances of minor misconduct • Provides the accused with the option to demand a trial by court-martial • Serves as a training tool to reform problem soldiers • Creates a record of punishment for later use in UCMJ or administrative actions (if required) • Allows service member to overcome past misconduct without the permanent stigma of a court-martial conviction on their record

11. Who May Administer NJP? Any commander, “commissioned officer or a warrant officer (WO2 and above) who by virtue of that officer’s grade and assignment exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is recognized as a command.”AR 27-10, para. 3-7 (CMCM)

12. Commanders May Impose NJP Against Whom? A member of the commander’s unit. A person attached to the commander’s unit. A person attached to the commander’s unit for UCMJ purposes.

13. Requirements For NJP Imposition • Service Member (SM) committed an offense in violation of the UCMJ • The SM must have been in a military jurisdictional status at the time the offense was committed • The Commander investigated the offense, identified the elements of the offense and verified that an offense was committed by the accused • Commander decides whether Summarized or Formal proceedings should be used

14. Advise Soldier of the Following: • Commander’s intent to proceed under CMVC, Sec. 450.1(Article 15) • Intent to proceed under formal or summarized proceedings • The maximum punishment imposable under formal / summarized proceedings • The Right to remain silent • A full list of the offenses alleged, and the article of the UCMJ allegedly violated

15. Advise (continued) • The right to demand trial by court-martial (a “turn-down”) • The right to confront witnesses, examine evidence, submit matters in defense, extenuation, and mitigation. • That the SM has a reasonable period of time to respond (24hrs-summarized / 48hrs – formal) • The right to Appeal (summarized - 3 calendar days / formal - 5 calendar days)

16. Differences Between Summarized and Formal Proceedings • Under Summarized, the SM has no right to consult w/legal counsel, and no right to a spokesperson. • Also under Summarized, Punishments of Reduction and Fine are not authorized.

17. SM Accepts Art. 15 Commander may proceed with hearing once a reasonable amount of time has expired SM presents evidence to Commander Commander makes findings and decides whether or not to impose punishment SM Turns Down Art. 15 What Happens Next? Art. 15 process is terminated Commander consults with JAG and determines whether or not to initiate Court-Martial

18. Important Points • Strongly encourage SM to seek legal advice before deciding whether to turn down Art. 15 (prevents allegations that the proceeding was ‘unfair’) • Allow for reasonable delays so that SM can consult with counsel, prepare case, gather evidence, etc. Allow extensions for time to appeal if reasonable • Ensure that Art. 15 packet contains enough evidence to sustain a finding of guilty (e.g. Sworn Statements, Photos, Documents) • Do not pre-judge soldier until he/she is heard and presented evidence

19. More Important Points • The same standard of guilt applies to NJP as it does to CM • Err on the side of protecting the SMs rights • Make sure the SM knows that they have a right to appeal, allow the SM to make his decision regarding the appeal in private after the hearing is over • When in doubt, contact your Judge Advocate

20. Armory Drill (Company or Field Grade) 1. ( No Restriction available) 2. Extra duties up to two hours for each of two consecutive drills 3. Oral reprimand or admonition Annual Training (Company or Field Grade) 1. Restriction 2. Extra duties of up to 4 hrs. per duty day and 8 hrs. for non-duty days for not more than 14 consecutive days 3. Oral reprimand or admonition Maximum PunishmentSummarized Proceedings

21. Company Grade 1. Fine of 7 days’ (UTAs) Pay 2. Reduction of 1 pay grade 3. Extra duties up to 2 hrs. for each of 2 consecutive drills 4. Verbal or written admonition/ reprimand Field Grade 1. Fine of 15 days’ (UTAs) pay per month for 2 months 2. E-4 or below: Reduction to E-1; E-5 - E-6: 1 pay grade 3. Same 4. Same NJP/Enlisted Personnel/(Formal Proceedings)Armory Drill

22. Company Grade 1. Fine of 7 days’ (UTAs) pay 2. Reduction of one pay grade 3. Extra duties up to 4 hrs. per day and 8 hrs. for non-duty for 14 consecutive days 4. Restriction 14 consecutive days 5. Same Field Grade 1. Fine of 15 days’ (UTAs) pay per month for 2 months 2. E-4 or below: Reduction to E-1; E-5 - E-6: 1 pay grade 3. Extra duties up to 4 hrs. per day and 8 hrs. for non-duty for 14 consecutive days 4. Restriction 14 consecutive days 5. Same NJP/Enlisted Personnel/(Formal Proceedings)Annual Training

23. COURTS-MARTIALLEVELS & PUNISHMENTS

24. The California Manual for Courts-Martial The rules/regulations governing the armed forces of the U.S. have been found impractical to fully conform those provisions to the CNG. As a result, the authority vested in the Governor of CA (Sec. 148) was to publish the CMCM. It details the rules/regulations for military justice in the CNG. Where inconsistencies exist, the CMCM will prevail.

25. Courts-Martial Levels • General Court-Martial (GCM) – Highest Level of Punishment/Due Process. MaxPun – Reduction to E-1 (one grade only if E-5 and above), DD/BCD, $200 fine, 200 days confinement, total dollars/days not to exceed 200. • Bad Conduct Discharge Special Court-Martial (“BCD Special”) – Intermediate Level – MaxPun – Reduction to E-1 (one grade only if E-5 and above), BCD, • Special Court-Martial – (SPCM or “Straight Special”) Lower Intermediate Level – MaxPun – Reduction to E-1 (one grade only if E-5 and above), punitive discharge not possible $100/$180 fine, 100/180 days confinement. • Summary Court-Martial – (SCM) Lowest form of CM available – MaxPun – Reduction to E-1 (one grade only if E-5 and above), $25/$30 fine, 25/30 days confinement. SCM conviction does not count as a ‘conviction’ on your record.

26. Summary Court-Martial Notes • Officer (CPT and above) acts as Military Judge. • No prosecutor, no defense attorney provided. • Does not count as a ‘conviction’ for purposes of a criminal record. • Soldier has the right to “turn-down” the SCM and demand a higher level CM wherein they would be entitled to have their case heard by a Military Judge and have a defense attorney provided.

27. Unlawful Command Influence • Each level of command must exercise independent judgment on disposition of offenses. • A superior officer cannot order and should not suggest to a subordinate commander how to dispose of a case. • A superior may act himself or withhold authority to act in particular cases.

28. Bench Warrants • A warrant issued by a presiding “military judge” against a SM who committed an offense in violation of the UCMJ and is referred to a courts-martial (any level). • Bench Warrants are usually initiated and processed for soldiers being referred to SCM for being AWOL during Annual Training. • Once a soldier is determined to be AWOL during AT, the unit must prepare and submit a charge sheet and bench warrant (BW) to the Staff Judge Advocate. • When all appropriate signatures are obtained (to include the military judge’s), the original BW and a copy of the charge sheet will be returned to the unit. • When the unit receives the signed BW, the unit delivers the BW directly to the sheriff or PD (at the discretion of the unit) in the county/city where the soldier resides. Under the terms of the BW, the soldier may be released on bail (with the bail money to be forwarded to the SJA at OTAG, Sac.) The BW also contains a POC number at the unit and at the Div/OTAG SJA.

29. Bench Warrants Continued • When notified by the local law enforcement authorities or SJA that the soldier is in custody, the unit must recover the soldier from those authorities. The soldier cannot be detained by the unit after being recovered. Therefore, the unit should coordinate with Div/OTAG SJA as to a date/time/place for convening a SCM and order the soldier to appear for the SCM hearing. • The unit may inform the soldier that failure to report for the SCM as ordered will result in the issuance of another BW for the soldier’s arrest. • If the soldier is not taken into custody pursuant to the BW, but appears voluntarily at the SCM as originally ordered, the unit must ensure that the BW is withdrawn by informing the law enforcement authority to which the warrant was delivered that the BW is no longer needed and should be withdrawn

30. Bench Warrants Continued • The unit may inform the soldier that failure to report for the SCM as ordered will result in the issuance of another BW for the soldier’s arrest. • If the soldier is not taken into custody pursuant to the BW, but appears voluntarily at the SCM as originally ordered, the unit must ensure that the BW is withdrawn by informing the law enforcement authority to which the warrant was delivered that the BW is no longer needed and should be withdrawn. • Whether the soldier is located or not, the BW will expire six (6) months from date of issuance. • The California Military Veterans Code (CMVC) provides that law enforcement authorities may not charge any fee for confining the soldier (CMVC §464). However, by its express terms, the BW authorizes the law enforcement authorities to photograph and fingerprint the soldier.

31. Mobilization Issues

32. Mobilization Issues • AR 608-99 Family Support Requirements • Soldiers & Sailors Civil Relief Act (SSCRA) • Wills / Powers of Attorney • Lautenberg Amendment • Legal Assistance from OTAG JAG

33. Family Support Requirements

34. Family Support Requirements • If activated on Title 10 orders you must abide by AR 608-99 • Frequent problem among NG personnel – high visibility, calls to OTAG, Congressional Inquiries • Must provide dependants with the equivalent of your BAH (using nationwide figure) • Portion the BAH among dependants – get the facts • Commander is responsible for fielding complaints from dependants and addressing the problem with the soldier.

35. AR 608-99 • If still legally married, then support is required (separation not relevant) • If dependant / JAG contacts unit and notifies of non-payment, you are required to counsel the soldier and RESPOND TO DEPENDANT • If soldier refuses to make payment, you must order them to pay and/or set up an involuntary allotment through finance • Consult with your Judge Advocate to see if soldier is required to make payments under the regulation

36. AR 608-99 • If soldier refuses to follow order, initiate UCMJ or administrative action against soldier for failure to obey a lawful order • If you fail to respond to the dependant and keep them advised of your steps to ensure payment, the dependant and/or a Judge Advocate is required to send matter up the chain of command for action • Keep the dependants informed and consult your Judge Advocate

37. SSCRA Basic Relief • Termination of Leases • Installment Contracts and Mortgage Foreclosures • Default Judgments • Stay of Proceedings • Health Insurance • Taxation • Maximum Rate of Interest (6%) Miscellaneous Relief • Stay of Execution of Judgments/Attachments • Statute of Limitations

38. Wills • A will is your statement to the world how you wish your estate to be divided after your death, whose welfare you want to provide for, and who you want to have custody of your children. (wills do not have the power to transfer custody – they merely state wishes) • Insurance does not pass through your will, unless it is to be paid into your will. Insurance is paid to the beneficiary without regard to your will.

39. Wills If you die without a will, you are “intestate.” Your assets will be distributed according to the intestacy laws of your state of domicile. Generally, instestacy laws follow this distribution scheme: • spouse & children, if ANY are alive, if not, then to • children’s children (etc...), if any are alive, if none, then to • parents, if alive, if not, then to • grandparents, if alive, if not, then to • aunts & uncles, if alive, if not, then to • cousins, if alive, and if not, then finally to Next of Kin.

40. NO Single No Major Assets Do not wish to exclude any family members No specific bequests YES Married with minor children Major assets or buisnesses Specific bequests Do You Need A Will?

41. Powers of Attorney • Document that gives another person the POWER to legally stand in your shoes -can do anything you could do -can do anything that is legal • General v. Special • It is a good idea to leave someone at home (whom you can trust) with a GPOA just in case something unexpected occurs • Nobody is legally required to accept a POA

42. LAUTENBERG

43. Lautenberg Amendment You may not possess a firearm if you have a misdemeanor conviction for domestic violence • “Domestic violence” is defined as abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. • “Abuse” is defined as intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.

44. Other Considerations Also within the ambit of Lautenberg is a current or existing restraint order Expungement/Pardons available Problems with felony convictions Reduced pleas to non-assault crimes (disturbing the peace) are possible Identify soldiers and refer them to JAG ASAP

45. OTAG Legal Assistance SFC Fonua / SPC Lagasca – 916-854-3505 CPT Blanco – direct line - 916-854-3503

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