When Graucho Marx made his famous statement about military justice and music, military music may not have evolved into the popular mainstay of Main street parades during national holidays that it is today, nor capable of packing in standing room only crowds at grand venues.  Unlike the evolution of military music, however, military justice has not evolved and continues to be susceptible to unlawful influence that undermines constitutional fair trial rights.

Courts have declared that unlawful command influence (UCI) is the mortal enemy of military justice.  It undermines the public’s trust in the military justice system and may deny an accused the right to a fair trial.  The typical military accused or defendant may not understand how to identify unlawful command influence, how UCI may impact his or her right to a fair trial, what to do about it if it exists, and how to get rid of it. 

UCI has a devastating effect on the right of a defendant to get a fair trial.  To understand why UCI has that impact and how to handle it, one must understand the history and mechanics of the military criminal trial or court-martial.  Unlike state and federal courts, the military has no standing courts.  There is no courthouse with sitting judges waiting to hear cases and settle disputes between citizens or citizens and the state.  The military system puts the power to settle disputes in the hands of the commander, also known as the convening authority. 

The term convening authority is an important label and description of what happens at a court-martial.  When a commander is notified that there may be a violation of the law, he or she will order an investigation.  The investigation may be completed by any number of agencies or people.  The investigation is supposed to be done by someone who is neutral and has no interest in the matter.  Also, the allegation of misconduct cannot involve the commander.  We will come back to this later.  When the investigation is completed the commander normally receives a recommendation as to the probability of the allegations and decides the next step.  If there is some evidence that an offense was committed, the commander will then refer charges to a court-martial.  Concurrent with the referral, a convening order is published assigning –also called detailing- a prosecutor, defense lawyer, and jurors –called members- to prosecute, defend, and decide the facts of the case.  The commander, therefore, is the authority that creates the trial.  And unlike a state or federal court, all participants in the trial are selected by the convening authority, who also orders the investigation and after the court-martial will decide whether to approve or disapprove a conviction if one is obtained.

The danger at this point should be clear.  The court-martial is not an independent trial.  The participants all rely on an order –convening order- issued by the commander for their authority to participate.  Accordingly, any influence by the commander, the commander’s staff, investigators, or even the perception of influence may cause the trial to become unfair.  For example, if the defense lawyer believes that an aggressive cross examination of a witness who works for the commander or the commander himself may result in a poor performance evaluation, the defense lawyer may hesitate or refuse to zealously represent his client.  Or, if the legal advisor to the commander, known as the staff judge advocate, participates in the investigation of the charges and either becomes a witness against the accused or begins to work to influence the trial to achieve a conviction, it becomes obvious that this same person will not be capable of neutrally advising the commander as he or she is required to do because of their direct participation in the investigation. 

For another example, I will use the commander as the victim of the alleged crime.  When the commander is directly or indirectly the victim of the alleged crime or misconduct, he or she will become known as the accuser.  A commander who is also the accuser is prohibited from convening a court-martial to adjudicate the allegations.  The reason for that should be obvious.  A commander who believes that a certain accused is responsible for some injury, harm, disrespect, or loss that he or she has suffered, he or she will be incapable of neutrally convening, reviewing, and approving a court-martial.  Any time a commander is also an accuser, the charges will be forwarded to the next commander in the chain of command to convene the court-martial.

When a trial has been unlawfully influenced or even if it merely appears that is has been unlawfully influenced, military judges are required to order certain remedies to cure the UCI.  The remedies may involve prohibiting certain people from being involved in the trial up to dismissing the charges. 

The danger of UCI is ever present in the military justice system because of the unique way in which trials are convened and conducted.  An accused and the lawyer representing that accused must be ever vigilant to ensure that there is no real UCI or even an appearance of UCI. 

Military members who are found guilty by a military court-martial often are sentenced to confinement, reduction in rank, forfeiture of pay and/or an assessment of a fine and a discharge from the military. The military member can request a deferral and waiver of the forfeitures of pay to support his or her immediate family members for up to six months after the commander approves the sentence and the deferral.

Manual for Courts-Martial

The Manual for Courts-Martial, which applies to all the Services’ military justice systems, identifies the procedures for requesting a deferral and waiver of forfeitures of pay to support dependents. Immediately following the military hearing, the record of the trial is prepared and sent to the court-martial convening authority for approval. A request for deferral and waiver can be submitted along with the record of trial to the convening authority for his or her consideration.

Reasons for a Waiver and Deferral

Forfeitures can be deferred until the convening authority takes action on the findings and sentence and a waiver can be granted for up to six months thereafter under Rule 1101 of the Manual for Courts-Martial. Deferring and waiving automatic forfeitures resulting from a sentence to confinement can provide for continuing dependent support for that limited period of time. The convening authority may consider factors such as the length of the accused confinement, the number and ages of the family members, debts owed and ability of the family members to find employment.

Military Defense Attorney

This deferral and waiver provision allows military family members to continue to meet financial obligations while transitioning to new circumstances outside of the military environment. Each military case is unique in facts and circumstances, however the military defense attorney can assess whether or not the request for deferral or waiver of forfeitures should be pursued either as a condition for a plea bargain or a matter for clemency after the court-martial concludes.

On September 29,2009 a federal appeals court in Washington DC upheld the DoD program that requires some military members to be vaccinated against anthrax citing valid scientific analysis by the FDA. The defendants in the lawsuit failed to provide proof of the negative effects of the vaccine. DoD has published policy in December 2006, defining the requirements for the mandatory vaccination.

Mission Essential Members

All active duty, selected reserves, and emergency-essential or mission-essential US government employees, contractors and contract Mariners who are in the USCENTCOM area of responsibility for a minimum of 15 consecutive days or on the Korean Peninsula, are required to take the series of six shots plus annual boosters.

Failure to Comply

The Services issued guidance in February and March 2007, defining the specific procedures for their branch. The Army policy specifically states that those members in the mandatory category who refuse to take the vaccine first requires counseling to the member and then charging them under the under UCMJ Art 92 for failure to obey an order. All military members and emergency-essential government civilians can be disciplined for failure to take the vaccine. Mission-essential contractors will be removed from their duties in the forward locations.

Military Justice Charges

The military service members who brought the appeal to the federal courts have not decided whether or not to continue the appeal to the next level. In the meantime, any military member who refuses the vaccinations prior to deployment to OIF/OEF will be prosecuted under the UCMJ.

The Associated Press published a story on the second appeal of an Abu Ghraib Soldier’s conviction citing the defense attorney’s theory that the Soldier was following Army policy. The story is a bit confused about the military justice process.

US Army Court of Criminal Appeals

Military courts-martial that end with a sentence of at least one year in jail and/or a dishonorable or bad conduct discharge are automatically forwarded to the Service-specific Court of Criminal Appeals (CCA). Each Service has military active duty or reserve lawyers for the defense and the government, who work on appellate issues. The United States Army Court of Criminal Appeals is located in Arlington VA. The Air Force, Navy-Marines, and Coast Guard each maintain an appeals court that presides over their Services appeals.

Military Attorneys at the Appellate Level

The military member is assigned an appellate defense attorney just like they were assigned a military defense counsel for his or her court-martial. This appellate defense attorney reviews the trial record and identifies any substantive issues in the process that may have led to a decision that warrants reversing the conviction or some other relief. When the appellate case is presented, there are government military attorneys arguing the merits of the process as it relates to military case law, the UCMJ and previous appellate decisions in the courts above. A military member can hire a civilian attorney to present his or her case, arguing the issues of law and the military justice process.

Military Criminal Appellate Cases

Any Service appellate court decision unfavorable to the military member can be appealed, on a case-by-case basis, either by right or by certification to the higher court by the Judge Advocate General of that Service. However, there are very few automatic appeals above the Service CCA level. The U.S. Court of Appeals for the Armed Forces (CAAF) is comprised of five judges, appointed by the President, “from civilian life” for a 15 year term. Military attorneys and judges who retire from the military are not eligible to serve on the CAAF. This ensures a distinct civilian nature to the court.

US. Court of Appeals for the Armed Forces

If a case is appealed through the Service’s appellate court and is referred to the CAAF, which then again rules unfavorably for the member, the only remaining remedy for further appeal is to the Supreme Court of the United States. The number of military cases that reach the U.S. Supreme Court are very few, and focus on the application of Title 10 of the U.S. Code and the UCMJ in light of other federal law. In the cases of the Abu Ghraib convictions, those who were sentenced to more than one year or were discharged either with a dishonorable or bad conduct characterization, will have the right to have their appeals considered by the Army Court of Criminal Appeals.

Individual Ready Reserves, Be Prepared

All individuals who enter military service incur a military service obligation (MSO) of eight (8) total years from the date of enlistment, appointment, or when authorized by law, induction into one of the Services. Any portion of those eight years that is not on active duty or active duty for training shall be performed in a Reserve component as defined in 10 USC (Sections 10101, 10142, and 10143).

Military Obligated Service

The date on which you complete your 8 years of military obligated service is listed on the DD 214, Block 6. You are eligible for recall by the military services if you have not completed your eight years of MSO. Additionally, if the ‘Mailing Address After Separation’ in block 19a, listed on the DD214 is incorrect, the mobilization orders may be delayed in getting to you, thus narrowing your response time to request a delay or exemption.

Deadline to Request Delay

The Services require you to respond quickly when they issue you a set of orders. Usually you only have 4 – 8 weeks before you report for duty. They need your request for a delay or an exemption within 14 days of the date of the orders. This allows them to amend your orders and issue orders to another individual to replace you on the mobilization.

Requests Due to Hardship

The process is not difficult but does require adherence to the process steps and requirements. Present the facts with supporting documentation that verifies your statements. Reasons for delays or exemptions from the mobilization orders include extreme personal hardship, extreme community hardship, medical disqualification, and administrative reasons. These categories seem broad, but allow for individual ready reserve members to present their facts and concerns for the Service to delay or complete exempt from duty.

Be Prepared, Know What Your DD214 Says

Know where your DD 214 is and keep a copy. Know your individual ready reserve date when you are no longer subject to recall (usually 8 years after your initial entry into the military). Keep your current address, phone number and Email updated with your former Service so any mobilization orders are delivered to you without delay. This maximizes the amount of time available to you to request a delay or exemption from duty. A checklist of the IRR delay and exemption process is located on the Law Firm of Puckett & Faraj, PC website: Common Questions, IRR Delay and Exemptions

The Chairman of the Joint Chiefs of Staff (CJCS) is supporting efforts in DoD to define the number of traumatic brain injuries or concussions military members suffer before they are pulled out of combat to recover, serve in the military camps or be returned to the US.

Multiple TBI Events Trigger Reassignment

Multiple concussive events could trigger reassignment from the front lines. COL Macedonia, the CJCS’s medical science adviser estimates that if the number of concussive events was set at three, there would be 150 – 400 of the 15,000 to 20,000 military members in Afghanistan reassigned. The Marines already have a policy in place to pull troops out of combat based on a history of multiple concussions during a tour.

Symptoms of TBI and PTSD

Patients with TBI are at increased risk for psychiatric disorders compared to the general population. Those disorders could include depression and Post-Traumatic Stress Disorder (PTSD), which affects behavior. Patients experience flash backs, avoid anything linked with the event including friends, have difficulty concentrating and are agitated and irritable, show signs of anger, depression, abuse alcohol or other substances. These effects on behavior can extend to criminal activity. The military courts are beginning to recognize the effects of TBI as a contributing factor to criminal activity. Several state bars and judicial systems have begun “Veteran Courts”, to manage sentencing of offenders who have demonstrated PTSD and TBI symptoms.

TBI/PTSD in the Courtroom

Recognizing and getting medical assistance for any TBI or PTSD is crucial to the well being of military members. If a family member or friend is being charged with a crime in the military, make sure their military attorney knows about any possible TBI events during their deployment and tell the military lawyer about any PTSD symptoms you’ve noticed since their return. A military member suffering with TBI and/or PTSD may not effectively assist in their military defense during a court-martial.

The Army recently announced acceptance of 1LT Watada’s resignation for the good of the service in lieu of a general court-martial for failure to go with his unit to Iraq in 2006. Apparently his 2007 court-martial ended in a mistrial.

Good of the Service Implications

The Associated Press indicates his resignation is for the good of the service, and in accordance with 38 CFR 3.12, this means he loses all his Veteran’s Administration benefits. Officers who resign for “conscientious objector who refused to perform military duty …” and for the “good of the service” are discharged and characterized as “under other than honorable conditions” and are prohibited from receiving VA benefits. (Army Regulation 600-8-24, Para 1-22, Chpt 3)

Military Court-Martial Second Time Around

Regarding the Army’s ability to re-charge the LT, it would depend on the circumstances of the original charges and the specific legal misconduct during the 2007 court hearing that led to the mistrial. Under a new convening authority or after review of the previous military justice process or new evidence, new charges can be preferred and a second court-martial convened. It is not unheard of in the military justice system for a court-martial to occur, be invalidated through appeals and then charges be reissued. Submission of a resignation in lieu of court-martial for the good of the service does not preclude the court-martial process from continuing. If the military justice process continues, the final disposition of charges is held until the Army Human Resources Command (AHRC) approves or declines the resignation request.

Options to a Court-Martial

In this case, the military member apparently determined the best course of action was to negotiate away his VA benefits and rights associated with his military active duty instead of facing another court-martial. These decisions are best made with your military attorney and, if hired, a military civilian attorney experienced in military law. The nuances of the consequences of each decision option are varied and complicated by the 10 USC, the UCMJ and 38 USC, Veteran Administration Pensions and Bonuses. Experience within the military justice system is critical in understanding the long-term impact of negotiating pre-trial agreements, or requests for retirement or resignation.

The Associated Press reported this week that the Marine Corps dropped charges against Sgt Jermaine Nelson in the death of detainees, one of four men who surrendered when the squad entered a house in Fallujah in November 2004. The wiliness to plead guilty to the lesser charges on the charge sheet were negotiated in a plea bargain, but Sgt Nelson still faced a court-martial with possible sentencing to prison, a dishonorable discharge, a felony conviction record and ineligibility for any Veterans Administration benefits.

Military Justice Process

Sgt Nelson, through his civilian attorney, worked a plea bargain deal prior to the court-martial with the government military trial team (prosecution). This was not a case of the government dropping the charges of murder or not holding the court-martial, but a case of the military justice process working correctly given the evidence in the case.

Information to Suspect a Crime

The process begins when a commander is informed of something irregular during an operation. This information can be through the chain of command by someone reporting comments they hear from other military members or by other military members who witnessed the action. In this case, a squad member of Sgt Nelson’s, was applying for a job with the FBI in 2006 after leaving the Marine Corps. During a polygraph test for entrance into the FBI, this squad member confessed to the shootings. The FBI turned the evidence over to the Marine Corps who requested an NCIS investigation.

Evidence and Appropriate Punishment

The evidence was gathered and charges preferred against three of the squad members. Two were acquitted including Sgt Nelson’s squad leader, setting a precedence that the evidence and facts of the cases did not support murder charges. Sgt Nelson’s military attorney reviewed the specific evidence against his client, and determined the failure on his client’s part to be a lesser charge rather than murder or voluntary manslaughter. He negotiated with the government for a plea bargain and superseded the court-martial proceedings with the plea. During the court-martial, the government accepted the guilty pleas for lesser charges based on the evidence and facts of the case. Punishment for those lesser charges was set by the judge but superseded by the negotiated plea bargain agreement.