The Office of the Judge Advocate General of the Air Force published their Air Force wide courts-martial schedule on line this last month. This approximately three month schedule shows the location, name, rank, and charges scheduled for courts-martial.

Transparency in Federal Law

The Air Force is leading the services in providing this information to the public. Military law, as outlined in 10 USC, is federal law, practiced globally by the military. Federal courts are open to the public showing transparency in the execution of federal law. The military justice system is no exception to this and has always had open courts. The issue has been centralizing the information so the members of the press and public could attend. Now the Air Force has remedied that by publishing their schedule beginning with September 2009.

Centralization of Military Court Case Schedules

It’s not a right of the accused, nor has DoD prohibited public attendance in military courts-martial in the past. The information can be found through public affairs of all the Services, but usually, only the local authorities at an installation are aware of their individual court cases. This step by the Air Force adds easy to find information and improves transparency to a process organized within military regions and fleets.

Promotes Understanding of Military Justice

Publishing the courts-martial schedule in advance, promotes a better understanding of the military justice system so the press and public can follow a specific case via the local installation or community press or attend in person.

Public Access Exceptions

The military courts have always been open to the press and public. The exception would be where a military judge excludes a portion of or specific testimony in the hearing where classified information is being discussed or for a specific reason such as protection of a vulnerable witness.

On Monday, 21 Sep 09, the Navy convened a Chief’s review board of 6,000 E7, E8 and E9 records. Similar to the Army’s Quality Management Program, the Navy is reviewing six specific performance criteria that could separate or retire these Sailors.

Six Substandard Navy Performance Criteria

Substandard performance indicators include declining performance marks on FITREPs, a score of 2.99 or below on FITREPS, two or more physical fitness assessment failures in 2 years, moral or professional dereliction such as detached for cause, documented actions under the UCMJ or any other documented adverse information indicating a Sailor’s continuation may not be consistent with national security or the in the Navy’s best interests.

Army Quality Management Program

This follows the Army’s announcement of its QMP boards being held this fall. This push for quality management boards is a means for the Services to manage the number of military members in each of the ranks.

What to Do to Correct Your Records

If you have an adverse event documented in your records, find out if it is a temporary entry or permanent and contact your personnel office to find out if there is a way to correct your records at your local installation. If not, the best means to change your record is through a Board for Corrections of Military/Naval Records.

Board for Corrections of Military/Naval Records

To ensure that you have the opportunity to complete 20 years of service for a military retirement, it is imperative that your military records be correct and accurate. Correcting military records begins with an Application for Correction of Military Records (DD Form 149 – Link downloads the pdf form). The form requires a statement from the military member on the requested correction and documentation that supports the request. Each of the Services has a board that reviews these requests.

Marine Sgt David W Budwah is facing a court-martial for misrepresenting his military service, wearing unauthorized medals and receiving gifts and services for representing himself as a war hero. Department of Defense regulates why a medal is awarded, specifying criteria to qualify and manages a system across the Services for awards and decorations.

Awards and Decorations Are Serious

The question about whether or not you are authorized to wear medals on your uniform is a serious one. The Services will take a military member to court-martial for wearing unauthorized medals and awards. Why is it so important for DoD to ensure the integrity and value of awards and decorations?

Badge of Military Merit, 1782

General George Washington knew the significance of recognizing military service during war, authorizing the Badge of Military Merit (later called the Purple Heart) in August 1782. The Order recognizes “…[the] giv[ing] of his blood in defense of his homeland…” as the basis for the award.

Service Regulations

Each Service publishes manuals that flow from executive orders, public law and the DOD Manual of Military Decorations and Awards. The criteria for each award is listed and specified. Documentation is required as proof for a military member or veteran to receive a ribbon or medal.

UCMJ Violation

Active duty, Reservist, Guard, Coast Guard, and Merchant Marines each have an individual duty to ensure their records accurately reflect the correct awarding of the ribbons and medals. Military members who knowingly wearing medals or ribbons they did not earn can be found to be in violation of the UCMJ. The Services will take action that could include court-martial, prison time, and dishonorable discharge. You could be charged with false official statements, malingering, misconduct and depending on how you abuse the decorations and awards, larceny.

Veteran Benefits for Purple Heart

Veterans should make sure their awards and decorations are correctly entered in their records. The value of having correct decorations and awards is that in some cases, it qualifies you for additional benefits from the Veterans Administration. In 2000, Congress passed a law placing Purple Heart Veterans in a higher priority category for VA healthcare services and eliminated their co-pays. Veterans need to have a copy of their DD214 or Separation papers to begin the process of ensuring their ribbons are correct.

Review each Service’s requirements at the following links:

DOD Manual of Military decorations and Awards

Air Force Awards and Decorations

Navy Veteran’s Ribbons and SECNAVINST 1650.1G (this link downloads the SECNAVINST)

Army Decorations, Awards, and Honors

Marine Corps Uniform Board (PMCUB) Website

Marine Corps Uniform Regulation, MCO P1020.34G. W CH 1-5

Coast Guard Medals and Awards Manual

Merchant Marine CIM 1650.25D May 2008

Replacement copy of DD214

The Uniform Code of Military Justice (UCMJ) is federal law, enacted by Congress in Chapter 47, of 10 USC, Subtitle A, Part II. Article 36 allows the President to prescribe rules and procedures to implement the provisions of the UCMJ. The Manual for Courts-Martial (MCM) describes the procedures for all military judicial and non-judicial punishment, including the appeal process for courts-martial convictions.

Military Law is Federal Law

Military law is federal law and as such can be practiced by lawyers who have passed and maintain a current active state bar admission and who are schooled in the UCMJ, the MCM and their prospective Service’s processes. The Manual for Courts-Martial outlines procedures for all aspects of implementing 10 USC, Subtitle A, Part II, Chapter 47. This manual is periodically reviewed and updated by the President. Title 10 is continually being revised by Congress to ensure it adapts to our ever-changing military environment. Most recently the Sexual Assault law, Article 120 of the UCMJ, was updated to better reflect the civilian federal law changes of recent years.

Charge Sheet, then Military Defense Counsel

When a military member is issued a charge sheet of offenses citing the UCMJ, they are assigned a military defense attorney at no cost. These are usually young military lawyers assigned to the regional defense offices and who are placed into trial litigation immediately with oversight by senior defense counsels who mentor and guide them through the processes. In most of the Services, these uniformed defense attorneys are in separate chains of command that merge at the Service’s Judge Advocate General’s position, who is a direct advisor to the Secretaries of the Army, Air Force and Navy (including the Marine Corps).

Confidence in Military Attorneys

If you or someone you know is facing charges in the military, he or she will be assigned a military lawyer to defend them. A military member can request a change in military lawyer representation if they do not feel the military lawyer has their best interests at heart. A military member should be confident in the abilities of his or her military lawyer to guide them through the decisions required by each individual military justice case. A military member may also hire a civilian attorney, who becomes the lead counsel working with the military lawyer to defend the client.

Researchers are identifying common symptoms and diagnoses of Post-Traumatic Stress Disorder (PTSD) for our military members who are exposed to traumatic events experienced or witnessed in combat situations. There is an alliance of organizations working to set up “veteran courts” for non-violent criminal actions against returning military members based on their PTSD symptoms.

War Trauma Induces A Response

Military members who experienced, witnessed or were confronted with death, serious injury or the threat of death or serious injury in Iraq or Afghanistan have several symptoms. The trauma caused the military member to feel intense fear, helplessness or horror; whether they admit it to family and friends or not.

PTSD Symptoms

Researchers identify re-experiencing the trauma through nightmares, flashbacks or replaying the event in their minds. Military members avoid anything that can remind them of the event, refuse to talk to people that were there, block memories from their minds, stop participating in activities and could withdraw from family and friends. Other symptoms include difficulty sleeping, being irritable or nervous, are prone to outbursts of anger or unable to concentrate and may constantly be looking over their shoulder for danger.

Diagnosis of PTSD

The medical analysis of symptoms that last less than a month is a diagnosis of acute stress disorder and any symptom lasting over a month is considered PTSD. PTSD can be acute (lasting less than three months) or chronic (lasting at least six months). Additionally, PTSD can have a delayed-onset by a military member not showing symptoms until he or she has separated from the military.

PTSD Impact on Civilian Courts

Some civilian courts are providing specialized “veteran courts” for those who served and suffer from PTSD or Traumatic Brain Injuries (TBI). These courts are modeled after drug courts that allow defendants to avoid prison in exchange for strict monitoring of their activities. The first veteran court was opened in Buffalo, NY in January 2008. More than 100 veterans have passed through that court, with only two returning to the traditional court system. The courts take into account their PTSD or TBI as a possible contributing factor to their actions. This approach to civilian, non-violent rehabilitation of veterans should be in every state.

PTSD/TBI in Military Justice Courts

Military justice courts may consider the PTSD and TBI issues when determining sentencing is dependent upon the defense attorney’s ability to provide the medical diagnosis and relate it to the crime. However, most enlisted military members who are faced with court-martial are not afforded the same opportunity for non-violent crime sentencing as the civilian “veteran courts.” Maybe it is time for DoD to consider the value of the military member and institute a similar procedure and process to rehabilitate military members whose actions were influenced by their diagnosis of PTSD or TBI.

The Army recalled MSgt Timothy Hennis back to active duty to be tired for 3 counts of murder after his conviction in a state court was overturned and he was acquitted in a new trial ordered by a state appeals court. The immediate question one asks is, how can the military try a Soldier for something for which he has been acquitted? Isn’t that Double Jeopardy?

Military Members Fall Under Local, State and Federal Laws

Military justice is federal law and every military member is subject to this law 24/7, 365 days of the year. This applies while they are in uniform on duty and when they are off duty in civilian clothes or on leave. Military members are also subject to the local laws in the states in which they are stationed even if they vote in a different state. This means the military members are under both state and federal laws at all times, and if one of these levels of law acquits (or convicts), that does not prohibit the other from filing charges against the Soldier, Airman, Marine, or Sailor.

Not Double Jeopardy

This may seem unfair and a case of double jeopardy for all of our military members. It is true the U.S. military holds our members to higher code of conduct and commanders hold military members responsible for their individual actions. Retirees are no exception. As a condition of their retirement pension they are always subject to recall to active duty and they are subject to the federal UCMJ laws for the rest of their lives. MSgt Hennis retired from active duty in 2004 with a full pension.

General Court-Martial

MSgt Hennis has been recalled to active duty and the military judge is hearing motions at Fort Bragg regarding his pending court-martial. Having been tried and acquitted by a state court system, Hennis now stands trial in a general court-martial under the federal military legal system. This is not true double jeopardy because the sovereign authority of a state government is considered to be different under our U.S. Constitution than the sovereign authority of the federal government, in this case, in the form of the UCMJ.

The Uniform Code of Military Justice (UCMJ), is federal law, enacted by Congress in Chapter 47, of 10 USC, Subtitle A, Part II. Article 2 defines the persons subject to the UCMJ. There are some categories of individuals whose members may not remember they are still subject to this military justice.

UCMJ Applies to Those Who Serve

It is no surprise, that military members of the regular components of the armed forces including those awaiting discharge, volunteers waiting to go to training who have been accepted into the armed forces; inductees from the time they raise their hand and are inducted into the service; or any other person called to duty are subject to criminal jurisdiction under the UCMJ.

Military Academies, National Guard and the UCMJ

Cadets (both Army and Air Force) and midshipmen at the U.S. Naval Academy are subject to the UCMJ as are members of the reserve component while on inactive-duty training, and members of the Army and Air National Guard while in Federal service.

Military Retirees and the UCMJ

What may be surprising to those military retirees who rushed through their out processing appointments is that retired members of the regular components of the armed forces, who are entitled to pay, are also subject to the UCMJ. That means that if you are entitled to a military retirement pay you are also subject to the criminal law as prescribed by the UCMJ for the duration of your entitlement.

NOAA and Public Health Servants Under the UCMJ

Also surprisingly, members of the National Oceanic and Atmospheric Administration and Public Health Service and other organizations when assigned to and serving with the armed forces are under the UCMJ. Prisoners of war in custody of the armed forces are subject to the UCMJ as are persons in custody of the armed forces serving a sentence imposed by a court-martial. This means that if you are convicted in court-martial, you are still liable for your actions while serving your time, or while at home on appellate leave if your sentence included a bad conduct or dishonorable discharge.

The Army has been executing the individual ready reserve (IRR) activation to meet its OIF/OEF manpower deployment requirements. Each military member has an 8-year military service obligation. If you separate before 8 years you are entered into the individual ready reserve and are subject to recall. The Army Regulation 601-25, Delay in Reporting and Exemption from Active Duty, outlines the policy for requesting a delay or an exemption from activation. Each Service has similar policies and procedures for requesting a delay or exemption from military recall.

Delay or Exemption

A delay in reporting allows the member time to resolve a temporary medical issue or resolve a personal issue or provide temporary support to an immediate family member. An example for an exemption from activation involves identifying a long-term medical issue that disqualifies a member from duty.

Criteria for Exemption

Delay and exemption requirements, process and the criteria reasons included extreme personal, community hardship, medical, and administrative hardships. These are defined in AR601-25 and Army Human Resource Commands current guidance (June 09). Extreme personal hardship (delay or exemption) substantial adverse impact on a dependent’s health and welfare. Extreme community hardship (delay or exemption) is mobilization would have a substantial adverse effect on the health, safety or welfare of the community. Temporary medical exemptions (delay only) include pregnancy, treatment for a illness or injury or temporary incapacitation due to a medical condition that requires hospitalization or medical supervision. An Administrative reason (delay or exemption) an error with a Soldier’s personnel record; transfer to another branch of service; or currently enrolled in college or professional schooling. NOTE: Employers of a Soldier must initiate a Key or Emergency Essential Employee request, see Army Personnel Policy Guidance, Chapter 1-5, 703-693-2241 for further instructions.

Army Regulation Plus Current Guidance

The process to request a delay or exemption is generally outlined in AR601-25, but is specifically addressed in the Delay and Exemption Guidance sent to each IRR Soldier when ordered to active duty. The current guidance from AHRC is dated June 2009. If you receive orders and are experiencing a hardship as described above, the first thing required is to fill in the memo in Annex A of the guidance and fax it to AHRC within 14 days of the date of the orders. This allows AHRC to open a file and place your activation “on hold” until your case can be adjudicated. All supporting documentation for your exemption request can follow this initial fax.

14-Day Deadline

Remember it is critically important for you to fax your signed and dated memo to AHRC within 14 days of the date on your activation orders. If you miss this deadline, and truly are dealing with a hardship, call the AHRC Delay and Exemption Team to determine your options.

On 31 Aug 09, the Navy and Marine Corps Court of Criminal Appeals reversed a military judge’s ruling that CBS didn’t have to turn over the outtakes of the Wuterich CBS 60 Minutes interview to prosecutors of SSgt Wuterich. The outtakes are reported to contain statements by Wuterich, which the government hopes will convict him of manslaughter in some of the deaths of 24 Iraqis in November 2005.

CBS 60-Minute Tapes

The ruling sends the early 2008 subpoena back to the Marine Corps to force CBS to turn over the outtakes to the government. CBS may seek to appeal this ruling to the highest military appeals court, the Court of Appeals for the Armed Forces. CBS has yet to announce its position on this ruling.

UCMJ Article 62 Appeal Process

If CBS appeals this ruling, it may be another six months to a year before there is a resolution to the issue. This military legal rule does not specifically state that the government is allowed to stop a court proceeding to appeal this type of trial court ruling. Yet in this case, that is exactly the tactics the government used to delay the court-martial of the last remaining Marine accused of causing of the deaths of some of 24 Iraqis killed in November 2005. The court-martial against SSgt Frank Wuterich will not begin until this matter is settled.

Battalion Commander’s Charges Dropped

A recent decision by the Marine Corps has dismissed all charges against the Battalion commander, LtCol Chessani. He was charged with failure to investigate and properly report the deaths of the civilians that day in 2005. The Marine Corps apparently recognized the fact that there was no proof that LtCol Chessani had been derelict in his duties.

Wuterich: The Last Man Standing

This ruling by the NMCCA is important for defining the procedures for the Uniform Code of Military Justice (10 U.S.C.) and for all future cases. But in the meantime, the life of one Marine, SSgt Frank Wuterich, is suspended without any foreseeable resolution to the accusations levied against him.

LTC Allen West protected the lives of Soldiers in his battalion in Iraq in August of 2003. While the main coalition offensive of the Iraq war was declared over in May, the insurgents were not willing to let the US Army hold territory without attacks. LTC West’s men were facing daily small arms fire ambushes and improvised explosive devices meant to kill. Any intelligence gained was through the interrogation of captured insurgents to discover the next ambush of patrols.

Operation Iraqi Freedom Rules of Engagement

The now famous August 2003 incident in which LTC West affirmatively chose to violate the overly restrictive US Army rules of engagement and then immediately report himself to his superior officer is an example of a warrior determined to safeguard his men. He did it at the expense of his command and his Army career.

Service Above Self

Not long after he reported his actions, LTC West was relieved of his battalion command. His Army career was over but it was up to his lawyer, Neal A Puckett, to present the facts to an Article 32 Investigation to determine if “over” meant a jail cell or retirement at a lower pay grade. LTC West received minor administrative discipline and retired in grade as a LTC. What saved LTC West was his willingness to give up his Army career, one that was surely headed for general officer rank, in exchange for saving the lives of the men under his command. He knew he was violating the letter of the law, but maintained emotional and physical control, making sure not to endanger the life of the insurgent who had planned to murder his Soldiers.

Military Loyalty and Accountability

What is perhaps most remarkable about this case is that LTC West immediately reported his actions to his superior officer. This act of loyalty and accountability shows the character of the man. LTC Allen West gave up his Army career, but now seeks to serve as the next Congressmen for the citizens of Florida’s 22^nd Congressional District. They will elect him in November 2010, because, as with his Soldiers in Iraq, he will be loyal and accountable to them.