The military has personnel policies in place to deal with family emergencies from granting emergency leave, to identifying family and friends to care for dependents in your stead, to granting humanitarian permanent duty station moves. The military member’s unit commander makes these administrative decisions. Sometimes when the commander executes one of the administrative options available, it runs afoul because of lack of good communications between the command and the military member.

Family Emergency Leave

PFC Christopher Pfeiffer came home on a mid-tour rest and recuperation leave from Afghanistan for the care of his medically ill pregnant wife who was to deliver their first child. The mid-tour leave from a combat deployment is usually only 2 weeks long. PFC Pfeiffer requested additional leave for his wife’s medical emergency and at the time, his yet unborn child.

AWOL and Desertion

In the course of the long distance communication with the command, it appears the facts were blurred and misunderstandings resulted. PFC Pfeiffer returned to Kuwait and awaited military transport to rejoin his unit. His intent was exactly that, to rejoin his unit. Yet his command classified him as a deserter, and his pay was docked beginning 30 days after his official return date. He was arrested while awaiting military airlift at the theater aerial port of embarkation. He had no intention of desertion as the Army now asserts.

Rest and Recuperation Leave

Military members accrue 2.5 days of leave for every 30 days of duty with pay and allowances. Members are encouraged to take approximately 30 days of leave a year, and can carry over a maximum of 60 days of accrued leave between fiscal years. Any excess above that is time lost. Rest and Recuperation leave is designed for use when Soldiers are in a combat zone and administered by the unit commander. Only one 2-week period is authorized per 12-month deployment.

Administrative vs. Military Legal Case

Tracking individual military members in and out of the battlefield is difficult as is managing all the requests for emergency leave. Yet there are administrative means to deal with these family medical emergencies and in this case, the Army let an administrative process unnecessarily turn into a military legal issue.

The Hasan family has hired a civilian attorney to defend Major Hasan. The attorney spoke with the Major this week and has requested no law enforcement interviews with his client. The military justice system allows for a suspect to remain silent when Criminal Investigation Division (CID) requests an interview.

Statements to CID

When a suspect refuses to interview with military criminal investigative services, the military criminal defense attorney can focus on challenging the evidence rather than refuting statements made without an attorney present. While statements can either be coerced, partially factual, truthful or various perceptions of reality, finding the ground truth is the task of both the prosecution and the defense.

Statements Under Duress

Any statements made by a suspect must also be without coercion and voluntary. The state of the individual, under the influence of alcohol, drugs, medications or mental afflictions, can taint the statements and make them involuntary and inadmissible in a military court. Major Hasan, when charged, must be treated for his wounds and recover sufficiently to participate in his defense.

Speedy Trial

The 120-day clock for a speedy trial begins after a military member is served a charge sheet or placed in confinement. The speedy trial count down of 120-days can be delayed by either the prosecution or defense. Either the prosecution or defense presents a motion to a military judge who can deny, approve, or revise the request. The reasons for delay include but are not limited to, recovery from medical issues, mental health evaluations, and the interview of witnesses or collection of evidence.

Rights Under the UCMJ

Major Hasan’s lawyer must protect the rights of his client as provided by the 5th Amendment to the Constitution. When a military member hires a civilian attorney or is provided an appointed military defense counsel, he or she has the same protections under the Uniform Code of Military Justice, as anyone facing criminal prosecution in the U.S.

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.

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.

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.

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

MSgt Hatley Convicted

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

Clemency Petition Granted

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

Appeal Process and Presidential Pardons

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

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.

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

Qualitative Management Program

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

Appeal Process

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

Post Legal Assistance Office

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

The spotlight is on Soldiers and former Soldiers accused of over a dozen slayings in the Colorado Springs, CO area near Fort Carson. These men are charged with violent crimes and a military study suggests a relationship between increasing levels of combat exposure and the risk of negative behavior in the community. Why didn’t the military justice system take care of these Soldiers before they committed crimes in the community?

Military Justice is a Commander’s Program

Military justice is a commander’s program; in other words the commanders exercise discretion on deciding if an offense should be charged and how offenders should be punished. When faced with an increasing escalation of behavior in a Soldier, a court-martial is the final step in a series of remedies available to ensure good order and discipline. Options include Wounded Warrior programs, behavioral counseling, medical treatments, alcohol and drug abuse counseling, and family support programs among others. The military legal processes are used when a crime as defined in the Uniform Code of Military Justice is allegedly committed.

Combat Related Stress Diagnosis

Programs, that support military members, are more limited or simply not available in a combat zone. The Commander’s must observe and identify those Soldiers with behavioral problems and get them the help then need. This may mean returning the Soldier to the home duty station for full diagnosis and support. Each individual’s case is different regarding the options for influencing possible negative behaviors.

Mental Issues in Court-Martial Defense

Military justice considers all the possible reasons for behavior and in some cases, gets a medical diagnosis of mental issues. A medical diagnosis can help in the defense of a military member and his or her sentencing if found guilty of a crime. If there is any indication of combat stress in a military member, those need to be shared with the military criminal defense attorney to determine the best options for defense.

The recent release of the new US battle rule to stop return fire on Afghan homes is intended to limit the collateral damage on the battlefield.  This adds to the rules of engagement (ROE) and further restricts the military in combat actions.  There are good military and political reasons for this addition to the rules of engagement but a possible consequence is the increased need for military justice.

Military ROE Training

ROE are trained and exercised by the military until every member of a unit is aware of and understands how to engage the enemy combatant.  This new ROE will require on the ground training in Iraq and Afghanistan and the military is very effective at getting the information out to each and every member in the field.

Military Member Responsibility

The individual application of the rules when faced with dire combat situations is a different matter.  As in all limitations on application of force, there might be an increase the incidents where military members, under duress, take action and are then held individually accountable for violations of the rules of engagement.

Violations of ROE

During Operation Iraqi Freedom and Operation Enduring Freedom, there have been several high profile media military justice cases involving military members killing civilians.  Examples include the Sadr City case where an Iraqi was deliberately shot in his home and another was dispatched in a “mercy killing.”  The Hamdania Case, where 8 Marines and 1 Sailor were accused of killing an Iraqi civilian instead of the suspected Al Qaeda fugitive they set out to kill.  The Haditha case, where 24 Iraqi civilians died after an IED explosion killed one Marine and seriously wounded two others.  The Haditha military case is still pending for 2 of the 8 originally accused.

Military Good Order and Discipline

Restrictive rules of engagement support good order and discipline on the battlefield along with ensuring safety in a dangerous environment.  The military lawyers, schooled in the law of war, provide battlefield assessments of each military action for commanders.  But they are not there, fighting hand-to-hand with the frontline military members who make decisions under duress.  The hope is that this new ROE can be applied to the battlefield to prevent unnecessary loss of civilian lives and actions of individual military members when called upon will not violate the new ROE.