Puckett & Faraj

Press Release:  The three Navy SEALs charged with hitting a detainee, a detainee who allegedly is responsible for the deaths and mutilation of four Blackwater Contractors in Fallujah in 2004, begin their courts-martial process next week.  On December 7, 2009, the military will hold an initial hearing, an arraignment of SO2 Matthew McCabe.  SO2 McCabe is charged with hitting a detainee.  Each of the three SEALs is represented by a different law firm.  The names of the accused SEALs and the firms representing them are below:

SO2 McCabe is represented by the Law Firm of Puckett & Faraj, PC.   Mr. Puckett can be reached through his website (www.puckettfaraj.com/contact-us), Email at neal@puckettfaraj.com and via phone 888-970-0005.

SO2 Keefe is represented by the Law Firm of Greg D. McCormack, PC.  Mr. McCormack can be reached through his website (www.militarylawyers.org), Email at inquiry@mccormackpc.com or via phone 757-463-7224.

SO1 Huertas is represented by Monica L. Lombardi, LLC.  Ms. Lombardi can be reached through her website (www.militarytrial.com), Email at mlombardi@militarytrial.com or via phone 757-309-4764 (toll free 888-826-5529).

Major Hasan’s civilian defense attorney has indicated he may raise the insanity defense for the shootings of 13 military and civilian members of the Fort Hood community on 5 Nov 09. But he also indicates it is too early in the process to determine a defense strategy.

CID Investigation

The US Army Criminal Investigation Command (CID) has not completed its investigation of the Hasan case. It may take several months to complete a thorough investigation. The current charges, levied days after the event, are not the final charges in the case. Since there were also dozens others wounded, charges of attempted murder are likely.

Preliminary Charge Sheet

While preliminary in nature, the substantial evidence pointing to Hasan as the shooter was justified as a basis for murder charges. CID recommended an initial charge sheet of 13 counts of murder. The commander reviewed the CID recommendations and with the Staff Judge Advocate’s (command legal advisor) advice, determined the specific UCMJ offenses to charge. The preliminary evidence also allowed the commander to determine the probability of flight risk and safety requirements for Fort Hood, to then order Major Hasan be placed in pre-trial confinement pending trial as well as further investigation of additional charges.

Defense Strategy Development

Major Hasan has been appointed military criminal defense attorneys along with the family’s retained civilian defense attorney. All attorneys expect additional charges based on a full and complete CID investigation. No criminal defense attorney develops a defense strategy until all the evidence is collected and reviewed. Additionally, Major Hasan cannot fully participate in his defense until he has recovered from his wounds.

Administrative Hearing

The recent hearing on 21 Nov, in his hospital room was an Initial Review Officer (magistrate) hearing to determine the legality of continued pre-trial confinement. Further, the prosecutors’ ability to provide answers to military defense attorneys depends on the progress of the CID investigation revealing additional evidence in the case. But one major advantage the defense attorneys in a military court-martial have is practically immediate access to all evidence in the case as soon as possible after it is reported to prosecutors. In federal and state courts sometimes information not intended for use at trial is withheld from defense attorneys.

The loss of Soldiers at Fort Hood yesterday is a tragedy and our sympathies go out to the families, the Fort Hood Community and our Army military brothers and sisters in arms. As the media argues about the next steps of dealing with the suspect who murdered 13 Soldiers and civilians at Fort Hood, those who work within the military justice system understand it is well equipped and practiced in dealing with misconduct in the military, including premeditated or unpremeditated murder.

Pre-Trial Custody

The suspect is in pre-trial custody, and his speedy trial clock has already begun to count down to his arraignment, normally required to be scheduled within 120 days. The convening authority, usually a general officer in the suspect’s chain of command, has the ability to extend that speedy trial clock for extenuating situations, such as allowing the United States Army Criminal Investigation Command to complete a thorough investigation.

CID Investigation

The Criminal Investigation Division (CID) in charge of the investigation gathers evidence and writes a report including a theory of the crime. This is sent to the convening authority, who reviews it and sends it to the base legal office for a legal review. The JAGs review the investigation and the applicable Uniform Code of Military Justice (UCMJ) and draft a charge sheet. This is sent back to the convening authority, who approves, modifies or deletes charges. It is then served on the military member, is assigned one or two military lawyers and soon thereafter appears in front of a military judge for an arraignment on the charges.

Military Justice System

This is clearly a situation that is tailor made for disposition totally within the military justice system. No one should question the capacity of all aspects of the military system to deal with this horrendous crime.

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.

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.

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.

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.