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 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 Office of the Judge Advocate General of the Air Force published their Air Force wide courts-martial schedule on line this last month. This approximately three month schedule shows the location, name, rank, and charges scheduled for courts-martial.

Transparency in Federal Law

The Air Force is leading the services in providing this information to the public. Military law, as outlined in 10 USC, is federal law, practiced globally by the military. Federal courts are open to the public showing transparency in the execution of federal law. The military justice system is no exception to this and has always had open courts. The issue has been centralizing the information so the members of the press and public could attend. Now the Air Force has remedied that by publishing their schedule beginning with September 2009.

Centralization of Military Court Case Schedules

It’s not a right of the accused, nor has DoD prohibited public attendance in military courts-martial in the past. The information can be found through public affairs of all the Services, but usually, only the local authorities at an installation are aware of their individual court cases. This step by the Air Force adds easy to find information and improves transparency to a process organized within military regions and fleets.

Promotes Understanding of Military Justice

Publishing the courts-martial schedule in advance, promotes a better understanding of the military justice system so the press and public can follow a specific case via the local installation or community press or attend in person.

Public Access Exceptions

The military courts have always been open to the press and public. The exception would be where a military judge excludes a portion of or specific testimony in the hearing where classified information is being discussed or for a specific reason such as protection of a vulnerable witness.

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.

On 31 Aug 09, the Navy and Marine Corps Court of Criminal Appeals reversed a military judge’s ruling that CBS didn’t have to turn over the outtakes of the Wuterich CBS 60 Minutes interview to prosecutors of SSgt Wuterich. The outtakes are reported to contain statements by Wuterich, which the government hopes will convict him of manslaughter in some of the deaths of 24 Iraqis in November 2005.

CBS 60-Minute Tapes

The ruling sends the early 2008 subpoena back to the Marine Corps to force CBS to turn over the outtakes to the government. CBS may seek to appeal this ruling to the highest military appeals court, the Court of Appeals for the Armed Forces. CBS has yet to announce its position on this ruling.

UCMJ Article 62 Appeal Process

If CBS appeals this ruling, it may be another six months to a year before there is a resolution to the issue. This military legal rule does not specifically state that the government is allowed to stop a court proceeding to appeal this type of trial court ruling. Yet in this case, that is exactly the tactics the government used to delay the court-martial of the last remaining Marine accused of causing of the deaths of some of 24 Iraqis killed in November 2005. The court-martial against SSgt Frank Wuterich will not begin until this matter is settled.

Battalion Commander’s Charges Dropped

A recent decision by the Marine Corps has dismissed all charges against the Battalion commander, LtCol Chessani. He was charged with failure to investigate and properly report the deaths of the civilians that day in 2005. The Marine Corps apparently recognized the fact that there was no proof that LtCol Chessani had been derelict in his duties.

Wuterich: The Last Man Standing

This ruling by the NMCCA is important for defining the procedures for the Uniform Code of Military Justice (10 U.S.C.) and for all future cases. But in the meantime, the life of one Marine, SSgt Frank Wuterich, is suspended without any foreseeable resolution to the accusations levied against him.

Marine Corps Lt General George J. Flynn has determined to drop all charges of dereliction of duty for Chessani’s investigation and reporting of the killing of 24 civilians in Haditha, November 2005. The general directed a board of inquiry for Chessani to determine his final rank for retirement.

Boards of Inquiry

The North County Times article indicates that this may be an unusual action for the Marine Corps to take a senior officer to a board of inquiry. Most officers who are retirement eligible and faced administrative or legal actions under the UCMJ during their last held rank are usually required to demonstrate honorable service to be eligible to retire at that rank. The Law Firm of Puckett & Faraj, PC has represented several mid-level and senior officers in boards of inquiry in the last 10 years. Lt Col Chessani’s attorneys, Robert Muise and Brian Rooney have the opportunity to provide the board the chain of events in Haditha, 19Nov09 to show no dereliction of duty. We have no doubt that they will prevail and that LtCol Chessani should retire as a LtCol.

Haditha Courts-Martial

What is of concern in this latest Haditha decision is the fact that the Marine Corps has determined that seven of the original eight military members were not guilty of manslaughter, murder or dereliction of duty. They appear to be hoping they can blame the entire incident on the remaining member of the squad, SSgt Frank Wuterich, who has yet to be given either a fair or speedy trial.

Proof of Wrongdoing

Throughout the course of the last 3 ½ years of investigations and military courts-martial, the Marine Corps has yet to prove wrongdoing according to the battlefield rules of engagement or failure of command. In their zeal to convict a Marine, any Marine, they apparently have proceeded on a false premise of what actually happened during an complex insurgent attack in what was the first of five attacks on U.S. Forces in Haditha, Iraq, in November of 2005.