Marine Corps Lt General George J. Flynn has determined to drop all charges of dereliction of duty for Chessani’s investigation and reporting of the killing of 24 civilians in Haditha, November 2005. The general directed a board of inquiry for Chessani to determine his final rank for retirement.

Boards of Inquiry

The North County Times article indicates that this may be an unusual action for the Marine Corps to take a senior officer to a board of inquiry. Most officers who are retirement eligible and faced administrative or legal actions under the UCMJ during their last held rank are usually required to demonstrate honorable service to be eligible to retire at that rank. The Law Firm of Puckett & Faraj, PC has represented several mid-level and senior officers in boards of inquiry in the last 10 years. Lt Col Chessani’s attorneys, Robert Muise and Brian Rooney have the opportunity to provide the board the chain of events in Haditha, 19Nov09 to show no dereliction of duty. We have no doubt that they will prevail and that LtCol Chessani should retire as a LtCol.

Haditha Courts-Martial

What is of concern in this latest Haditha decision is the fact that the Marine Corps has determined that seven of the original eight military members were not guilty of manslaughter, murder or dereliction of duty. They appear to be hoping they can blame the entire incident on the remaining member of the squad, SSgt Frank Wuterich, who has yet to be given either a fair or speedy trial.

Proof of Wrongdoing

Throughout the course of the last 3 ½ years of investigations and military courts-martial, the Marine Corps has yet to prove wrongdoing according to the battlefield rules of engagement or failure of command. In their zeal to convict a Marine, any Marine, they apparently have proceeded on a false premise of what actually happened during an complex insurgent attack in what was the first of five attacks on U.S. Forces in Haditha, Iraq, in November of 2005.

When a military member is between the Article 32 phase and the general court-martial, the government will sometimes try to negotiate a pretrial agreement. This pretrial agreement is between you and the government, and is not revealed to the jury during the military member’s general court-martial.

Pre-Trial Agreement

Either the military prosecutors or the military defense attorney can begin a discussion on the possibility of a pretrial agreement. It requires that the military member plead guilty to some or all of the charges in exchange for a limit on the maximum sentence. The pretrial agreement is presented to the convening authority, usually the first general officer in the chain of command in the case of a general court-martial. The convening authority then either accepts or rejects the agreement. If there is a pretrial agreement in place and the military judge or jury determine the sentence and the punishment, and afterwards, the military judge is informed of the pretrial agreement and discusses with the accused how it will affect his or her adjudged sentence.

Ethics of a Guilty Plea

A military member charged with a crime under the UCMJ can ask for a pre-trial agreement if he or she is guilty of the alleged charges. One cannot plead guilty to a charge if one truly is innocent. It is ethically and morally wrong and the UCMJ and Manual for Courts-Martial forbids it. Any military attorney who supports a plea of guilty, knowing the client is not guilty may be subject to discipline from his or her state bar.

Pleading Guilty or Not Guilty

Military members have critical decisions to make in their own defense. Once they hire a civilian military defense attorney, they rely on their attorney’s knowledge and experience in the military criminal process. The two critical decisions the military member must make during trial are whether to plead guilty or not guilty and whether or not to testify during the trial. But before those decisions are made, whether to enter into a pretrial agreement with the government is a decision best made only after consultation with a qualified military criminal defense attorney.

Three soldiers convicted of murder in late March 2007 execution-style of slayings of four bound and blindfolded Iraqi detainees. Two soldiers are serving life sentences and the third is serving 25 years. Their sentences were reduced to 40 and 20 years on appeal. The Iraqi’s had been taken into custody by the Soldiers in the Spring of 2007 after an exchange of gun fire with the Soldier’s unit.

MSgt Hatley Convicted

Master Sergeant John E. Hatley, the senior military member of the three, was acquitted of a fifth murder, but convicted of conspiracy to commit murder. A military member serving a life sentence resulting from a military court-martial is eligible for parole in 20 years. On August 14, 2009, His sentence was reduced from life to 40 years as a result of a clemency petition.

Clemency Petition Granted

A clemency petition is a request to the convening authority (usually the first general officer in the chain of command) to reduce the sentence from a court-martial. The military defense attorney provides a written request on behalf of the military member to justify why the convening authority ought to use his or her authority to reduce the sentence in the name of justice or fairness. A clemency petition outlines all the mitigating circumstances of the event leading to the conviction and the personal circumstance of the military member and his or her family.

Appeal Process and Presidential Pardons

Baring the convening authority’s change of the sentence, all military members cases that were convicted at courts-martial are automatically reviewed on appeal. Appeals review the military justice processes in accordance with the UCMJ and Manual for Courts-Martial to ensure a fair trial. In some cases, appeals can reverse some aspects of a court-martial requiring a military judge to review the case. After a military member has requested clemency and his or her case reviewed through the appeal process, the next step in gaining relief from the conviction is through a Presidential pardon.

Two sexual assault cases are being reported by female students (Midshipmen) at the U.S. Naval Academy this summer. Both assaults happened during their 8 weeks of summer training with Navy units. The allegations are under investigation by the Naval Criminal Investigative Service (NCIS).

Uniform Code of Military Justice

The Uniform Code of Military Justice (UCMJ) Article 120 addresses all types of sexual assaults, indecent exposure, inappropriate behavior and rape cases. All the services have put programs into place to help counsel the victim and provide an advocate. This procedure provides a safe environment for a military member to report, in these cases, a sexual assault without fear of reprisal or not being taking seriously by their command.

Investigation of Misconduct

When allegations are raised, the commanding officer requests a Command Investigation or an official investigation by the services’ investigative branches. Once an investigation is complete, the commander considers the recommendation along with advice from his or her senior judge advocate (lawyer) and charges are either dropped or served on the accused.

What You Should Do

If you are suspected of an Article 120 charge, we recommend you do not talk to investigators (NCIS in this case) and request a meeting with the defense attorneys on your installation. Reported misconduct between members of different units, services or components, is reviewed, investigated and if substantiated, the accused may be charged under the UCMJ. Perceptions of an event can differ between the willing and unwilling participants. If you are a victim of misconduct in the military, report it to your chain of command. If you are the subject of an accusation of misconduct, maintain your good conduct and your silence with everyone and request to speak to a military attorney. Your actions during an investigation are crucial in helping the military defense attorneys determine the sequence of events.

Commander’s Responsibility

Remember, good order and discipline of a unit is the commander’s responsibility and the ability to work together, unhindered from threats and concerns about conduct require that all misconduct be reviewed and dealt with as required. The military justice system will enforce good order and discipline if Article 120 has been violated.

The LA Times Blog was the first to reported that a Marine Officer, Capt Douglas Wacker, would be arraigned on August 18, 2009 at the Marine Corps Recruit Depot, San Diego. He is facing charges of rape and indecent assault for an alleged incident with former girlfriends.

District Attorney Declined to Prosecute

The District Attorney in New Orleans, where the alleged incident occurred, declined to press charges after an investigation. Yet the Marine Corps insists on resurrecting this alleged event apparently to demonstrate that it’s cracking down on sexual assaults.

Wacker’s Defense Attorney – Haytham Faraj

Capt Wacker’s defense attorney, Mr. Haytham Faraj, of the Law Firm of Puckett and Faraj, stated there was no rape and that Captain Wacker engaged in consensual sex with other University of San Diego Law students. The University cleared him of misconduct but is withholding his law degree pending the outcome of his court-martial scheduled for February 8, 2010.

Criminal charges will not be filed against a construction company for the electrocution death of a Green Beret Soldier who died while showering in his barracks in Iraq. The military investigation found insufficient evidence to prove intent to commit the crime or culpable negligence, and while no one is criminally culpable in his death, the investigation showed a breach of duty of care for both the contractor and the military commanders who should have provided oversight.

Breach of Duty of Care

This incident has resulted in established procedures to ensure quality performance of construction in Iraq. Failure of the system appears to have been many small issues that culminated in a tragic event. The military investigators found that both contractors and government employees “breached their respective duties of care” identifying that while they complied with the current procedures and regulations at the time, those procedures were not thorough enough to prevent harm.

Correction of Procedures

A military investigation focuses on the intent and culpability or negligence as it relates to the Uniform Code of Military Justice. It appears in this case, the investigators could find no one person or system liable for the death, but a collection of smaller events or failures, which individually would not have caused the death. Those individual events or failures are then analyzed and corrections to procedures and regulations are identified to prevent this type of failure in the future.

Application of Military Justice

While this does not account for the loss of a Soldier, nor provide any comfort to the family nor restore his life, the military justice system does provide one answer. It is designed to thoroughly review actions on the battlefield or in garrison to ensure that anyone who does have intent to harm one of our own military members is brought to full accounting for their actions.

Captain Roger Hill, USA, the West Point graduate and company commander in Afghanistan, who had known insurgents in his camp, has been separated from the Army as of 31 June 2009. Capt Hill’s resignation in lieu of court-martial was accepted by the Secretary of the Army and his service to this country remains characterized as a “general under honorable conditions” discharge.

General Under Honorable Conditions

Captain Hill offered his resignation in December 2008 after an Article 32 hearing in Afghanistan. The “general under honorable conditions” discharge normally qualifies for Veterans Administration benefits including disability pension, health care, and death benefits. An exception to this policy is found in 38 USC § 5303(a); it states an officer who resigns for the good of the service is barred from most of the Veteran’s benefits.

Combat Injuries

In Captain Hill’s case, his injuries suffered while at West Point and subsequently aggravated by parachute qualification and combat duty in Iraq and Afghanistan may not qualify for a VA disability pension. The Army held him on active duty for an additional 90 days this spring to assess his combat injuries. His doctors assessed his neck and back injuries as severe enough to qualify for significant disability compensation from the VA. However, due to his resignation for the “good of the service,” he may only be eligible for care at a VA hospital as his constant pain dictates.

SecArmy Denies Upgrade of Discharge

The Secretary of the Army could have upgraded his discharge to “honorable” but chose to let the “general under honorable conditions” characterization stand. During his 90-day extension on active duty, he submitted another request for resignation, void of any reference to disciplinary actions by the Army and thus not for the “good of the service.” The detainee abuse charges had been dropped in December 2008. The Secretary of the Army had the discretion to approve this second resignation request, but he declined to do so.

Civilian Roger Hill

Captain Hill is currently seeking a job Southeast United states. He has requested copies of all of his military records and upon receipt of them, he will apply to the Veteran’s Administration for all the benefits available to him including a request for exemption for a disability pension.

More Than Brothers

The More Than Brothers website outlines the current status of Capt Hill and his men of Dog Company. Some faced courts-martial and are still fighting to clear their names. Donations are welcome to support the families of Dog Company including the two Soldiers who lost their lives to the insurgents who were spying on them within the camp.

News Release: Haytham Faraj, Esq, Partner in the Law Firm of Puckett & Faraj, PC graduated July 31, 2009 from Gerry Spence’s nationally acclaimed Trial Lawyer College in Wyoming. This intense defense trial lawyer training focuses on proven techniques and processes aimed at winning each and every trial.

Trial Lawyers College

The Trial Lawyers College is a concentrated, 23 consecutive days program taught by the renown US defense trial lawyers. They are dedicated to training a new generation of younger trial lawyers to be effective and winning advocates for justice. The goal is to inspire the attendees to become a winning trial lawyer who will ethically and nobly champion the cause of the individual against big government or corporate industry. To achieve that goal, Mr. Spence and the staff at the Trial Lawyers College, have developed an advocacy program that demands lawyers learn how to connect with their clients to better represent their point of view and present them in a way a jury or judge will rule in their favor.

The Law Firm of Puckett & Faraj, PC.

The Law Firm of Puckett & Faraj, PC has over 50 years of combined professional and legal experience, including providing military defense attorney services to defend members of the military and exceptional litigation skills for those accused of federal crimes.  Mr. Faraj continues the Law Firm’s record of unparalleled success, with a recent full acquittal of rape at a Marine Corps officer court-martial.

The Army has reached it’s end strength numbers and believes it can easily reach the additional 22,000 SECDEF authorized last month. It is reinstating its Qualitative Management Program (QMP) that screens E-6 to E-9 records for any behavioral or legal problems and then separates those Soldiers.

Qualitative Management Program

The Department of the Army defines the program in AR 635-200 as an administrative tool to deny reenlistment to substandard Soldiers. They will phase in the program by reviewing all E-6 to E-9 records beginning this fall specifically all documentation since the Soldier’s last promotion board for any substandard performance documented with non-judicial punishment (Article 15), General Officer Reprimands (GOMORs) or poor career evaluations in any category. The purpose of the QMP is to separate the Soldier from the Army.

Appeal Process

Soldiers identified by the QMP for separation must reply within 60 days with either an appeal of the decision; acknowledgment of their pending separation from the Army; request for immediate retirement if eligible, or a request to extend to retirement if the Soldier has over 17 years and 9 months of service and an expiration of term of service (ETS) that extends beyond 20 years. Appeals must argue material error or improved performance along with a favorable chain of command endorsement. The process is outlined in AR635-200.

Post Legal Assistance Office

Soldiers who’s records may go before a QMP should review their OMPF for accuracy and if there is adverse information, prepare a response upon notification of the QMP with the help of the post Legal Assistance Office. Your ability to show improved performance and value to the Army after an adverse entry in your OMPF may save your career.

The Marine Corps has banned Social Networking sites like Facebook and Twitter from their unclassified computer network for at least a year. This was based on a warning from US Strategic Command of the possible cyber attacks and loss of critical information about the military to any enemy forces monitoring the sites.

Social Networks Help Us Keep In Touch

At first glance this seems unfair of the military to take away a source of communications with a loved one on the battlefield. It is comforting to get messages from our Soldiers, Marines, Sailors and Airmen when they are deployed for long periods of time. But that information can be used against them. Anyone monitoring Facebook or MySpace can piece together little bits of information in separate entries. An innocent entry about having to go out on patrol near a river the next day, could set the military member up for a surprise attack, where they could be seriously injured or killed.

Operational Security

Any talk about what happened on patrol the day before could lead to military criminal investigation if the commander or First SGT hears of it. A civilian friend could share it with a friend of theirs who is in uniform, and that information could get relayed to the Service. One of the commander’s responsibilities is to ensure strict communication and operational security. If any of his or her troops are commenting on a patrol happening in the future, that’s a violation of operational security.

Military Justice Steps In

The military justice system not only could step in, but if there is probable cause to believe there was a sharing of critical information on an open source computer, investigators may ask the base commander for a search authorization and take your home computer for analysis. Those military members who live off the base aren’t exempt. The military investigative service can with probable cause, get a civilian judge to issue a warrant for your home computer. Take care about what you say on an “open” communications source. Your military career and possibly your life depend on it.