Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2002

Military Justice
A singular opportunity for significant service
By Victor Kelley

The blockbuster film A Few Good Men misguided the public into the military justice system through the trial preparation of defense counsel Lieutenant Daniel Kaffee and Lieutenant Commander JoAnne Galloway. In the movie, both of the accused are convicted of a crime that does not exist. Kaffee boldly submits a defense which – incorrectly and ludicrously – could subject him to court-martial charges. Though based on a true incident, the film is complete fiction. In actuality, our service members enjoy excellent statutory and administrative rights, and unlimited opportunity exists for civilian lawyers to help them exercise those rights.

How often has a client consulted you for legal services and mentioned in passing that he or she has a son facing a court-martial in the Army? A daughter in the Air Force who is suffering an administrative misjustice? A spouse who needs to petition for a correction of his/her military record? The sheer number of young people serving in our armed forces, as well as veterans who have previously served, reveals numerous opportunities for lawyers to provide significant assistance to hundreds of thousands of our citizens in a legal practice that badly needs competent civilian counsel. The area of military justice is virtually untapped and is one in which, with some application, civilian lawyers can practice with complete competence.

Military criminal justice and its related administrative actions are multifaceted and include court-martial process, appellate review, nonjudicial (commander’s) punishment, clemency and parole proceedings, discharge review boards and boards for correction of military records. Below is a primer of the general types of some military proceedings, the qualifications for counsel’s representation at those proceedings and some resources that will guide the reader in preparation for them.

General Court-martial: A general court-martial is empowered to adjudge any punishment authorized by the UCMJ (Uniform Code of Military Justice). Authorized punishments may include a reprimand, forfeiture of pay and allowances, a fine, reduction in pay grade, confinement and a dishonorable discharge. In the case of officers, a court-martial may mean dismissal from the service. The military court-martial must, upon an accused’s request for members, be comprised of at least five members. The accused has the right to military counsel and may, at no expense to the government, retain qualified civilian counsel.

Special Court-martial: Though a serious proceeding, a special court-martial’s punishment authority is inferior to that of a general court-martial. A special court-martial is empowered to adjudge those punishments authorized by the UCMJ, subject to the maximum jurisdiction of that court, including forfeiture of two-thirds pay per month for one year, confinement for one year, reduction in pay grade and a discharge from the service with a bad conduct discharge. Upon an accused’s request, a special court-martial must be comprised of at least three members. Like a general court-martial, the accused has the right to military counsel and may retain civilian counsel.

Summary Court-martial: A summary court-martial is composed of one commissioned officer. His or her function is to 'promptly adjudicate minor offenses,' and he or she is charged to ensure that the interests of both the government and the accused are safeguarded. Lawful punishments include confinement for one month, restriction to limits for two months and forfeiture of two-thirds pay for one month. The accused does not have the right to military counsel at a summary court-martial but may retain civilian counsel.

The military rules for appellate review vary according to the court from which the appeal is taken and the offense for which the accused was convicted. Generally, the first de facto 'appeal' is to the convening authority, who may only mitigate findings or sentence. Unless an accused waives appellate review, the Court of Criminal Appeals may review court-martial convictions. In certain circumstances, the Court of Appeals for the Armed Forces and the United States Supreme Court may also review court-martial convictions. In each of these courts, the accused may be represented by counsel and may retain civilian counsel in addition to or instead of military counsel.

The term 'adverse action' refers to a number of quasi-judicial or administrative proceedings that may subject military service members to potentially career-ending sanctions short of judicial proceedings. Those adverse actions are generally governed by the relevant service regulations. During most adverse action proceedings, service members have the right to assistance of military and civilian counsel.

Service separation boards are administrative in nature but do entitle the service member to administrative due process of law. These boards generally have the authority to retain the respondent or to discharge him/her with an honorable, general under honorable conditions, or other-than-honorable discharge. With a general under honorable conditions or an other-than-honorable discharge, the service member will lose substantially all his/her rights under the service department and the Department of Veterans Affairs. Military personnel have the right to military and retained civilian representation before administrative separation boards.

Within each military service exists a board that is established by federal law with authorization to 'correct any military record...to correct an error or remove an injustice.' The board members are civilian members of the executive part of that military department. Except when a favorable decision by the board is based on fraud, a correction of the record is final and conclusive. The claimant must file a petition to the Board for Correction of Military Records within three years after he or his legal representative discovers the error or injustice. However, the board does have the authority to excuse an out-of-time filing if it finds the filing to be in the interest of justice. While a service member does not have the right to assistance of military counsel, he or she may retain civilian counsel for redress to the Board for Correction of Military Records.

Not unlike Administrative Separation Boards, Boards of Officers exist to administratively hear allegations of officer misconduct and neglects. Their jurisdiction is non-punitive in nature, but may result in other administrative and career-ending sanctions. Military counsel is made available for service members who are referred to a board of officers. Respondents may also retain civilian counsel for their representation.

Article 15, UCMJ, otherwise known as NJP (nonjudicial punishment) may also be called 'captain’s mast' in the Navy or 'office hours' in the Marines. NJP is a disciplinary measure, but not as severe as a court-martial. Unless a service member is attached to or embarked on a vessel, he or she can refuse Article 15 and demand his/her right to a court-martial.

If the service member accepts Article 15, he or she may be punished with as much as restriction to limits, arrest in quarters, forfeiture of pay, correctional custody and reduction in pay grade. If embarked on a vessel, the service member may be ordered to confinement on bread and water or diminished rations for three days.

Any service member who feels that his/her punishment is unjust or disproportionate to the offense may appeal to the next senior commander within five days of imposition of punishment. An accused does have the right to consult military counsel before accepting Article 15 or demanding trial by court-martial. The accused also may speak with retained civilian counsel, and, with permission of the commander, counsel may represent the service member at the Article 15 and on appeal to the next senior commander.

Each service provides boards for evaluating the degree and extent of a service member’s physical and mental fitness for continued duty. While the language and reference to the service boards may vary, the process is generally comparable. Usually, an initial finding of disability may be appealed through a tiered system in the hopes of either continuing on duty (usually until the service member is eligible for retirement), or with the view of having a reasonable disability designation awarded. Upon the designation of '30 percent disability,' the service member is medically retired to the 'Temporary Disability Retired List' with some limitations. Military counsel is available for assistance, or, if the service member prefers, he or she may retain civilian counsel for Physical Evaluation Board practice.

All the services have clemency and parole boards that exist to consider each petition to determine whether clemency and restoration of certain civil rights is appropriate. The boards may also determine that a military prisoner has earned the right to be paroled into the civilian community and complete his or her debt to society as a free individual on parole. In certain circumstances, a service member convicted by court-martial may petition the U.S. Justice Department pardon attorney for an executive pardon. Civilian counsel may represent military personnel for all clemency, parole and pardon applications.

The secretary of each armed force is statutorily required to establish a Discharge Review Board. The service member must move the board to review his/her discharge within 15 years after the date of the discharge or dismissal. The review is based on the records of the armed force concerned, as well as on other evidence that the petitioner may present to the board. The petitioner may present his/her case personally, via affidavit, or by counsel advocating his or her interests before the board.

Young military lawyers are first-rate attorneys. When working with civilian counsel, military defense counsel are unusually well placed to assist lead counsel in the preparation and presentation of the case. Military advocates are 'school trained' and have the advantage of being at the post as well as being in a position to keep a finger on the pulse of the case. The military rules of procedure are such that all of the resources available to the United States are available to the defense. This is a stark contrast for those of us in civilian justice systems who fight for our clients against the power of the sovereign!

The formality of courts-martial can be intimidating, but it certainly is no more formal than practice in U.S. District Court. The evidentiary code is the Military Rules of Evidence (MRE), which is patterned on the federal rules. Those who practice in U.S. District Court will be immediately at ease working within the military system. The punitive articles of the UCMJ are the military criminal code. They are easily set out in the Manual for Courts-Martial, which has a description of the offense, a listing of the elements of the offense, a list of any lesser included offenses and a set of definitions for any legal terms of art used in that article. The Manual contains the UCMJ as well as the Military Rules of Evidence and is available through the U.S. Government Printing Office.

Civilian qualification of military accused at courts-martial is stated in Rules for Court-Martial 502 (d). Succinctly, all that is required for civilian representation to practice before courts-martial is that the person be a 'member of the bar of the a Federal court or of the bar of the highest court of a State.' At the outset of courts-martial proceedings, the military judge will ask civilian counsel to state his/her qualifications. Having done so, the judge will administer an oath to civilian counsel to well and faithfully represent the accused, and the trial proceeds.

At present more than 1.4 million men and women serve our country in the armed forces. Military jurisdiction attaches worldwide as a result of those persons’ status as service members. Solorio v. United States, 483 U.S. 435 (1987). Whether from courts-martial or any number of administrative proceedings, I submit that each of those people at some time in his/her service could benefit from the sound advice of counsel. If you are a member in good standing of the federal bar or any state bar of the United States, you are qualified to represent service members. A minimum investment to purchase the Manual for Courts-Martial enables you to possess the basic library for court-martial representation. With some study, application and work with detailed military defense counsel, you, as civilian counsel can develop an expertise in a fairly untouched legal specialty area and provide a singular benefit for the men and women who serve our country.

Victor Kelley is a shareholder of Gorham & Waldrep in Birmingham, Ala., and president of National Military Justice Group, LLC. His principal practice is military justice. He is also adjunct professor at Cumberland School of Law of Samford University in Birmingham, Ala., where he teaches military justice.

© 2002 Victor Kelley

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