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 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.

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

UCMJ Applies to Those Who Serve

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

Military Academies, National Guard and the UCMJ

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

Military Retirees and the UCMJ

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

NOAA and Public Health Servants Under the UCMJ

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

The Marine Corps has banned Social Networking sites like Facebook and Twitter from their unclassified computer network for at least a year. This was based on a warning from US Strategic Command of the possible cyber attacks and loss of critical information about the military to any enemy forces monitoring the sites.

Social Networks Help Us Keep In Touch

At first glance this seems unfair of the military to take away a source of communications with a loved one on the battlefield. It is comforting to get messages from our Soldiers, Marines, Sailors and Airmen when they are deployed for long periods of time. But that information can be used against them. Anyone monitoring Facebook or MySpace can piece together little bits of information in separate entries. An innocent entry about having to go out on patrol near a river the next day, could set the military member up for a surprise attack, where they could be seriously injured or killed.

Operational Security

Any talk about what happened on patrol the day before could lead to military criminal investigation if the commander or First SGT hears of it. A civilian friend could share it with a friend of theirs who is in uniform, and that information could get relayed to the Service. One of the commander’s responsibilities is to ensure strict communication and operational security. If any of his or her troops are commenting on a patrol happening in the future, that’s a violation of operational security.

Military Justice Steps In

The military justice system not only could step in, but if there is probable cause to believe there was a sharing of critical information on an open source computer, investigators may ask the base commander for a search authorization and take your home computer for analysis. Those military members who live off the base aren’t exempt. The military investigative service can with probable cause, get a civilian judge to issue a warrant for your home computer. Take care about what you say on an “open” communications source. Your military career and possibly your life depend on it.

Defending military members in criminal cases is more difficult when a military member under investigation makes statements to friends and family that then appear in the military investigation. Those statements can, and often do, make negotiating lesser punishment almost impossible.

Manual for Courts-Martial

The Manual for Courts-Martial is the “how to” guide for military justice and is based upon the US Law and the regulations issued under that law, the constitutional powers of the President and the command authority delegated to military commanders. The military rules of evidence define what is and is not admissible in a military court of law.

Military Client Privileges

Military members charged under the Uniform Code of Military Justice have the right to expect that anything said to their assigned uniform military attorney or their civilian attorney is confidential and not admissible in court. Additionally, anything said to a member of the clergy is considered confidential information and not to be revealed in a military trial.

Military Member and Their Spouse

A spouse of an accused military member has the right to refuse to testify against him or her, and the military member has the right to prevent the spouse from testifying. This does not apply to divorced members or marriages that are annulled. An exception to the rule of a spouse not testifying against the military member is if the spouse is the victim of the crime charged.

When To Not Speak

When you are suspected of a crime in the military, it is tempting to talk to your friends and family members (those other than your spouse) about the details of the case. Those friends and family, like your sister or cousin or even your parents, could be called to testify on the government’s behalf about what you have said. This puts your friends and family in a difficult position of lying or providing information that may make your defense more difficult, or worse, incriminate you. When you are being investigated, don’t talk to anyone but your lawyer, the chaplain, or your spouse. Protect yourself and give your military defense attorney the best chance to defend your rights.

A Sailor assigned at Camp Pendleton CA is charged with murder in the June 30^th fatal shooting of a fellow sailor, on duty at a guard station. The news coverage raises the possibility of a hate crime as a means to justify this alleged action. There currently is no so-called “hate crime” offense under the Uniform Code of Military Justice. The intent of the individual charged and the results of his or her actions is what the military investigator and attorneys seek to discover.

Military Investigation Services

Supporting or inhibiting this task is the investigation completed by the military services’ investigative arms. The Army Criminal Investigative Services (CID), Air Force Office of Special Investigations (AFOSI), Navy Criminal Investigative Services (NCIS), and Coast Guard Investigative Services (CGIS) all have the same focus – to discover the truth.

Military Seeking the Truth

Why is it that a defense or prosecution of a particular case is won or lost on the proof of truth based on the same investigation? Uniformed military attorneys serve as prosecution attorneys, defense attorneys, and sometimes judges during their careers in the military. Their ability to seek out the truth and represent the facts and intent of the defendant is one aspect of litigation. The seeking of truth is a principle that applies to all participants in a trial.

Military Rules of Behavior

Military lawyers must also analyze how the investigative service discovered evidence, how they interpret statements by witnesses and how they developed a sequence of events and timelines. The military criminal defense attorneys seek to clarify defendant’s actions (or inactions in some cases) within the principles of military rules of evidence, combat rules of engagement, operational tactics, techniques and procedures, and DoD, Service and Command conduct policies.

Military Legal Process

All of this information will be presented in a court of law, with appropriate procedures that protect the rights of the defendants and alleged victims. Anyone outside the process who publicly speculates about a rationale for action by any member facing military court-martial does an injustice to the rights conferred by the Constitution and our US laws.

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.

Secretary Gates answered questions about Army deployment cycles in a town hall meeting at Fort Drum this week.  He had no specific answers regarding continuing and uneven shouldering of deployment lengths by brigades except to announce on July 20th an increase in Army personnel by 22,000.  The stress of continuous rotations into the battlefield can result in posttraumatic stress disorder (PTSD).

What is PTSD?

According to the National Center for Posttraumatic Stress Disorder, PTSD is an anxiety disorder that can occur after you have been through a traumatic event such as combat.  All people with PTSD have lived through a traumatic event that caused them to fear for their lives, see horrible things, and feel helpless.  They may try to avoid situations or people that trigger memories of the traumatic event. They may even avoid talking or thinking about the event.  Some people develop more severe systems that could affect their daily lives.

PTSD Impact on Military Careers

Family members can help monitor loved ones and counsel them when they begin to feel the anxiety of repeated deployments.  The military legal system gets involved when that military member chooses to not report for duty resulting in an unauthorized absence.  UA or AWOL is a serious military justice infraction.  Military members can return after being gone less than 30 days and most probably receive non-judicial punishment and can finish their military obligation or careers.   UA or AWOL for over 30 days most often results in a other than honorable discharge from the service.  This could make them ineligible for most Veterans Administration benefits.

Act Before the Military Justice System Does

If you are a family member of a military member and notice any of the symptoms of PSTD, encourage him or her to talk to the mental health professionals, chaplains and his or her immediate supervisor.  Get that person the help needed prior to having to deal with unauthorized absence or AWOL and the possible life-long results when the military justice system is involved.

Military members accused of a crime under the Uniform Code of Military Justice have the right to hire a civilian attorney in their defense.  The Government is obliged to provide a uniformed military defense attorney free of charge to each military member who has been given a charge sheet.   The outcome of a military court-martial depends on the facts of the case and the skill of your defense attorney.

Your Legal Rights

A uniformed military attorney is assigned to your case when you receive a charge sheet.  But what happens while the commander and the investigative service (NCIS, CID, CGIS, or the AFOSI) analyze the facts and determine whether a case merits legal proceedings or non-judicial punishment?  What are the long-term effects of military legal actions against you vice the non-judicial punishment?  Which one is better for your particular situation?

Military Charge Sheet

A military member can go to the legal office and talk to a defense counsel who will tell you that until you receive a charge sheet they can’t help you.  They will advise you to not make statements to the investigative service and they will tell you not to talk to anyone about your case.  They can advise you if your commander is offering you non-judicial punishment instead of a court-martial.  That decision depends entirely on the specifics of your case and your long-term life goals.  The problem is they don’t really represent you until after a decision is made to charge you.

The Best Defense Starts Early

The best defense is to think about all your actions before you do something.  If there is any concern that anything you do or say might violate the UCMJ, you should talk to your chain of command, review the operating and/or safety regulations in your unit, and/or talk to the legal office on the base.  If the command has started an investigation into you or your friends’ actions, the best defense is to not make any statements and seek an attorney.  Remember attorneys cannot counsel you unless they are hired or in the case of your uniform military attorney, you have been charged under the UCMJ.

Captain Roger Hill explained to Bill O’Reilly on Monday night, March 16th, about how the Army sought to prosecute him as a war criminal for firing his weapon to convince detainees inside a bldg to divulge vital information about their role as a Taliban spies.  The Army sealed his Art 32 investigation report, refusing to deliver it to Neal Puckett, his civilian defense counsel at that hearing in Afghanistan.  The Law Firm of Puckett and Faraj, PC, is seeking to force the Army to release the records of that proceeding.

Comments on this website after the show were enthusiastic in support of CPT Hill and angry in criticizing the Army for ordering CPT Hill be separated from the service with a general discharge instead of an honorable discharge.  Many donated to assist CPT Hill.  Please sign the online petition on CPT Hill’s page on this site.  Click on his picture on the home page.  Sign his petition then read about CPT Hill and donate to his cause in seeking to upgrade the discharges of his soldiers and repair their records.   You can also read more about him and his First Sergeant, Tommy Scott, an American hero whose reputation has also been tarnished by the Army.