Press Release: SO2 Matthew McCabe, one of three Navy SEALs being charged with the abuse of a detainee who is suspected of killing and mutilating four Blackwater Contractors in Fallujah in 2004, faced arraignment in a military court on Dec 7, 2009. Petty Officer (PO) McCabe is being charged with punching the detainee in the stomach. He faces court-martial, a year in jail and a bad conduct discharge.

On December 11, 2009, SO2 McCabe formally notified the government of his intent to plead “Not Guilty” to all charges and is requesting a trial by a panel of military members, including enlisted members.

Public Response

HUMAN EVENTS has posted a petition requesting the Secretary of Defense, the Honorable Robert M. Gates, to dismiss the charges against the three Navy SEALs, SO2 McCabe, SO2 Keefe and SO1 Huertas.

The Law Firm of Puckett & Faraj, PC is grateful for the outpouring of public support for these Navy SEALs. The Firm represents PO McCabe, the main defendant in the case. Several have asked how they may contact the Navy and United States Central Command to voice their support for these three Navy SEALs. The addresses for their senior commanding officers are:

Convening Authority: MG Charles T. Cleveland  SOCCENT/CC 7701 Tampa Point Boulevard McDill AFB, FL 33621

Administrative Authorities: Chief of Naval Operations, Admiral Gary Roughead 2000 Navy Pentagon Washington, DC 20350-2000 and the Secretary of the Navy, The Honorable Ray Mabus 1000 Navy Pentagon Washington, DC 20350-1000

At this point, two Defense Funds have been set up for all three Navy SEALs.

DISCLAIMER: THE FOLLOWING INFORMATION IS PROVIDED WITHOUT ENDORSEMENT.  THE LAW FIRM OF PUCKETT & FARAJ, PC DOES NOT CONTROL OR HAVE ANY PROFESSIONAL OR FINANCIAL AFFILIATION WITH ANY LEGAL DEFENSE FUND.  LEGAL DEFENSE FUNDS OPERATE INDEPENDENTLY FROM THE LAW FIRM AND THE PARTNERS.  PARTICIPANTS ARE ENCOURAGED TO EXERCISE DUE DILIGENCE WHEN CHOOSING TO CONTRIBUTE TO A DEFENSE FUND.

#1: U.S. Navy SEAL/Warrior Defense Fund: The U.S. Navy SEAL/Warrior Defense Fund, to defray the legal costs and fees of the 3 Navy SEALs charged with detainee assault.  http://sites.google.com/site/usnavyseallegaldefensefund/ or via Bank of America (any branch) Account Number 435020290711 or mailed to Bank of America P.O. Box F, Fort Eustis, VA 23604.  The Fund is NOT a 501(c)(3) tax exempt organization under the Internal Revenue Service and therefore, contributions are NOT tax deductible.  For more information:  navysealdefense@gmail.com

#2: Navy SEALs Fund, for donations to help pay the legal bills of the three accused Navy SEALs.  http://www.maritimetacticalsecurity.com/MtsNews.aspx or via JPMorgan Chase Bank, the “Navy SEALs Fund”, Account # 834325318.  This is a non-profit account.  For more information please contact support@maritimetacticalsecurity.com or by phone 888-867-0899, ext 101.

The Board of Inquiry for Lt Col Chessani scheduled for December 3^rd will determine whether he failed to properly report or investigate the events at Haditha, Iraq, in November of 2005. If the board finds that such a failure has been substantiated, they can make a recommendation as to whether LtCol Chessani should be retired, and if so, at what pay grade. They may recommend that he retire as a Major rather than his current rank of Lt Col.

Purpose of a Board of Inquiry

The purpose of a Board of Inquiry is to have senior officers review the officer’s record and allow Lt Col Chessani to rebut any allegations supporting his separation for cause or retirement in a current grade or lesser grade and define the characterization of his service.

Board Members

The Marine Corps is assigning one Brig General and two Colonels to hear Lt Col Chessani’s case. It is highly unusual that a Brig General would be assigned to such a board for a Lt Col BOI when the regulation only requires the board be senior in grade to the officer. The Marine Corps could have assigned senior Lt Cols and one Colonel to hear the case. The board members selected must be officers without personal knowledge pertaining to the case. It would have been difficult to find board members when the associated allegations surrounding the incident at Haditha have had broad and frequent publicity.

Rights in a Board of Inquiry

The Board of Inquiry is an official proceeding, with a recorder, rights to legal counsel, opportunities to present matters, present and/or question witnesses under oath, rights to challenge any member of the board for cause, rights to submit evidence, rights to give sworn or unsworn testimony, presentation of oral and written (either, or both) testimony, and rights to rebut a board recommendation.

Secretary of the Navy

The final decision regarding the future of a Naval or Marine officer facing separation proceedings rests within the authority of the Secretary of the Navy. The Secretary acts upon the recommendation of the Board of Inquiry either by approving, disapproving, or modifying the recommendation. Assignment of continued duty, retirement or separation actions are made by the appropriate administrative offices after the Secretarial decision. If the officer feels the Secretary’s decision was not appropriate, his or her options after separation or retirement are with petitions to either a Board of Corrections of Naval Records or the Naval Discharge Review Board.

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 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 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.

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.

LtCol Victor Fehrenbach, a weapon system operator in the F-15E, is hoping the Secretary of the Air Force will rule against a board recommending his separation from the Air Force. Nearing retirement, Lt Col Fehrenbach will lose the right to serve long enough to be vested with a pension of nearly $50,000 a year for being identified as a homosexual.

Don’t Ask, Don’t Tell Law

Congressional hearings are slated this fall in both the House and the Senate to review the current law (10 USC § 654) upon which a review board judged Lt Col Fehrenbach and recommended his separation. The current “Don’t Ask, Don’t Tell” law holds the military society to a higher standard than the civilian community. The law cites fundamental differences from civilian life to include unit cohesion and numerous restrictions on personal behavior that “would not be acceptable in a civilian society.” The Law states those restrictions apply to a military member’s life 24 hours each day, whether on or off duty or whether on or off base. The reason the law uses a 24-hour clause is that military members must be ready for deployment and duty at all times.

Military Case Defense Theory

If LtCol Fehrenbach enjoyed the advice of military criminal defense attorneys for his show cause hearing, the defense theory must not have prevailed on the requirement for the government to prove that LtCol Fehrenbach’s personal actions interfered with his F-15 squadron’s good order and discipline. Additionally, the law states a member’s confession of homosexual tendencies for the purpose of termination coupled with an assessment that the member is need in the unit, may not be sufficient to justify his separation.

Burden of Proof

The defense theory, or strategy a military criminal defense attorney adopts, usually reflects the truth surrounding the incident. In this case, LtCol Fehrenbach’s off-base, after hours activities were reported to the military, probably with the full intention of getting him in trouble under the Uniform Code of Military Justice (UCMJ). Proving that his actions caused unit disruption is very difficult unless the military member admits such actions and his squadron members then become aware of and there is actual proof of disruption to good order and discipline.

Application of Military Law

The Secretary of Defense told reporters last month that he had asked his general counsel to look for ways to apply the law in “a more humane way.” An application of common sense when interpreting the law includes proving military unit disruption by private actions off base. All sexual activities in a deployed location are subject to UCMJ actions when discovered – even opposite sex activities. In the case of LtCol Fehrenbach, his own willingness to admit wrongdoing proved violation of 10 USC § 654, making the job of those seeking his discharge much easier. We do not know what legal advice he received, and we do not know the details of his hearing, because of Privacy Act protections on military personnel actions. But it seems that with a good defense theory based on his continued service being more valuable to the Air Force than the principal of prohibiting homosexuals from serving openly, he may have been able to save his military career.

Military members who get into trouble and are disciplined risk their military pensions, their benefits from the Veterans Administration (VA) or their quality of life in the civilian community. Military criminal defense attorneys analyze the case facts, argue for the most appropriate and just outcome for the member; be that acquittal or a conviction on lesser charges and/or reduced punishment.

Consequences of a Military Conviction

Those in trouble who are retirement eligible or those nearly eligible for retirement (within 2 years) risk losing their retirement at their current grade and most certainly some of their VA benefits. Each case is different, and the law, Presidential orders and federal regulations specify requirements for eligibility for separation, retirement and VA benefits. Quality of life in the civilian community focuses on having to register as a sex offender per federal and state law if you violate Article 120 of the UCMJ.

Military Officer Retirement

Honorable military service for 20 or more years entitles a military member to a pension and full VA benefits. Retirement can be in a grade lower, as per 10 USC 1370, “a military officer be retired in the highest grade in which he or she served on active duty satisfactorily… “ This may be determined by a recommendation by a Board of Inquiry or Show Cause Hearing after an officer has received non-judicial or judicial punishment.

Discharge Characterization

Characterization of a discharge as anything other than “honorable” results in ineligibility for some of the VA benefits. Petitions for exemptions can be made to the VA, outlining the specific facts of a military member and the VA has the authority to award benefits by exemption.

Acquittal and Military Service

It doesn’t seem fair that after being accused of crime and fully acquitted, you could still face being administratively separated from the military or retirement in a reduced rank. The military has full authority to separate anyone in his or her first term for cause. US Code states retirement is awarded based on satisfactory duty. The military defines satisfactory duty based on law and regulations derived from them.

Know Your Rights

Talk with your lawyer about the effects of each of the defense options in terms of lasting effect on your military career, your family and life after the military. Understand your rights and the consequences of the choices you make in your defense.

What is the Post-9/11 GI Bill?

The Post-9/11 GI Bill is for persons with military service of at least 90 days of aggregate service on or after September 11, 2001, or those who were discharged with a service-connected disability after 30 days.  Your military service record must have been characterized as with an honorable discharge to be eligible for the Post-9/11 GI Bill.  You can receive up to 36 months of benefits for training at an Institute of Higher Learning, and have approximately 15 years following your release from active duty to use the benefits, if you are eligible.   If you served a continuous 36 months or more after 9/11 and you meet all the requirements for the Post-9/11 GI Bill, you are eligible for 100% of the funding available.

Benefits of the Post-9/11 GI Bill

Beginning on or after August 1, 2009, this program will pay eligible individuals tuition and fees, a monthly housing allowance, a stipend for books and supplies and a one-time rural benefit payment for eligible individuals.  The application form requires that individuals currently eligible for benefits under the Montgomery GI BILL-Active Duty (MGIB-AD), Montgomery GI Bill-Selected Reserve (MGIB-SR) or the Reserve Educational Assistance Program (REAP) make an irrevocable election from their existing program to the Post-9/11 GI Bill.  Additionally requirements apply, please review the Veterans Administration (VA) website.

Time your Benefits

The VA recently added additional information to their website.  “Normally, your months of entitlement under the Post-9/11 GI Bill will be equal to the number of months of entitlement you have remaining under the MGIB-AD. However, if you use all of your MGIB-AD benefits, then you may be entitled to a maximum of 12 additional months of benefits under the Post-9/11 GI Bill.”  This means you are on active duty and have used all of your MGIB-AD benefits, you could get an additional 12 months of education benefits.

Eligible for a Board for Correction of Military Records

Those separated military members without an honorable discharge should consider whether or not they are eligible for a Board for Correction of Military Records, Board for Correction of Naval Records, or a discharge upgrade.  While not every petition for a records correction or discharge upgrade are granted, the ability to apply for the Post-9/11 GI Bill rests on the characterization of your military discharge, your military service record, and amount of time served in the military.

Military Defense Attorneys

Civilian military attorneys can assess your military service record status and provide the legal services to request the upgrade or correction to your records.  Your military service is recognized by the VA as a contribution to our nation and the VA benefits are recognized as entitlement for those that served.   Review your DD Form 214 now to see if you are eligible for the Post-9/11 GI Bill.  The Law Firm of Puckett & Faraj, PC, defend the rights of all military members and work to support the fair treatment of our brave men and women.  If you or a member of your family could be eligible for VA benefits because of military service, please call our toll free number for a free consultation, 877-970-0005; or contact us via Email.  Your questions will be answered and all communication is protected by the attorney-client privilege.