Military Law

Austin lawyers court martial

Military Law

Our Military Law Attorneys at Jarvis, Garcia, & Erskine provide aggressive, experienced representation to U.S. service members and veterans. This includes courts-martial, courts-martial appeals, enlisted separation hearings and officer show cause boards/ boards of inquiry.

TYPES OF COURTS-MARTIAL

The Uniform Code of Military Justice provides for three types of courts-martial:

  1. General Courts-Martial: This is the most serious level of military court. It consists of a military judge, trial counsel (prosecutor), defense counsel, and at least five court members (jury). An enlisted accused may request a court composed of at least one-third enlisted personnel. Unless the case is one in which the death sentence could be adjudged, an officer or enlisted accused may also request trial by judge alone. In a general court-martial, the maximum punishment is that established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment. A Preliminary Hearing under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial, unless waived by the accused.
  2. Special Courts-Martial: This is considered the intermediate court level, consisting of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. Regardless of the offenses involved, a special court-martial sentence is limited to no more than twelve months confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of two-third’s basic pay per month for twelve months, a bad-conduct discharge (for enlisted personnel), and certain lesser punishments.
  3. Summary Courts-Martial: Minor incidents of misconduct. The maximum punishment a summary court-martial may impose is considerably less than a special or general court-martial. For instance, enlisted personnel in the grade of E-5 or above cannot be sentenced to confinement at a summary court-martial. Perhaps most importantly, a conviction at a summary court-martial is not considered a conviction in civilian society, and an accused must consent to be tried by a summary court-martial.

ADMINISTRATIVE SEPARATION BOARDS

ENLISTED MEMBERS

Administrative separation boards are required when the command desires to separate an enlisted service member when the enlisted member has either more than six years of total combined (reserve and active) service or when the command wishes the member receive an ‘Other than Honorable’ service characterization.

In most scenarios, administrative separation boards come after the service member has already received derogatory information that has been filed in one’s official record, whether in the form of non-judicial punishment (known in some branches as Article 15, NJP, or Captain’s Mast), from an officially filed letter of reprimand, or from a negative evaluation. The administrative separation board consists of three members that hear evidence to decide if misconduct occurred, and if misconduct occurred (by a preponderance of evidence, or 51% or greater), they decide whether the service-member should be permitted to stay in service. If the administrative separation board recommends separation, the board must also make a recommendation as to what the characterization should be, i.e. Honorable, General, Under Honorable Conditions or Other Than Honorable.

The character of service that is listed on a service member’s DD214 (military discharge certificate) can have lasting effects in many areas of civilian life, including one’s ability to obtain meaningful employment. Characterization of service can also deny the member federal and state tuition assistance for college. The notion that the member can easily obtain an upgrade to their discharge is inaccurate; upgrades to discharge are increasingly difficult to obtain and the service boards presume that the characterization from the original discharge is correct and just.

BOARDS OF INQUIRY – OFFICERS

An officer show cause board (also referred to as a Board of Inquiry or “BOI”) is a difficult thing to go through. In many cases the officer facing the show cause board has several years of service, and is hoping to be able to serve until retirement. If you have been given notice that you are required to “show cause” why you should not be administratively separated from the Army at a Board of Inquiry, you should consider hiring an experienced civilian military defense attorney.

An officer show cause board is either initiated by the Department of the Army (DA generated) or by the General Officer Show Cause Authority (GOSCA) at your installation (locally generated). The basis for the separation action is usually either substandard performance of duty, misconduct, or professional dereliction. Your notification memorandum will list the specific reason why the officer show cause action is being initiated.

There has been a significant increase in the numbers of boards of show cause/boards of inquiry initiated against officers. The Army’s Human Resources Command (HRC) and other branch equivalents initiates an elimination proceeding against an Officer that is found to have “bad paper” in the Officer’s official file. Examples of “bad paper” that would generate an elimination action include letters of reprimand (GOMOR), a relief for cause evaluation report, or any “referred” evaluation report that includes derogatory information.

Once an Officer receives notification of an elimination action, they have several options of how, if at all, to respond. The Officer can submit a resignation in lieu of elimination; the Officer can also respond in writing to the underlying allegations to request that the elimination action be rescinded; and the Officer can request, if the written matters do not convince the initiating commander to rescind the action, the Officer can opt for personal appearance and counsel’s representation at the board of inquiry. In most cases, the Officer has only thirty (30) calendar days to respond to the initial notification of elimination proceedings. Typically, after notice that a board will be convened, the board must occur within ninety (90) days.

The rights to counsel before a board of inquiry closely mirror those for a court-martial: the right to detailed (assigned) military counsel at no cost, the right to hire civilian counsel at the Officer’s cost, and the right to both working on the case. Unlike courts-martial, an Officer will not typically receive two detailed military attorneys like he would at a court-martial if he does not hire civilian counsel.

There are many strategies to combating elimination at a board of inquiry. Strategies vary according to the overall goal of the Officer. In some cases, the Officer has already acknowledged that he or she committed the underlying misconduct so that the goal at the board is to convince the members that the misconduct does not warrant elimination. In cases where the Officer has not acknowledged guilt and will not acknowledge committing the misconduct (whether because the Officer did not commit it, does not wish to admit it, or the evidence is not strong enough to convince the Officer that he or she should admit to it), the goal is to undermine the government’s evidence to appeal to the members for a finding of “no misconduct.”

The required finding of the members at a board of inquiry or enlisted administrative separation is first to determine if by a preponderance (more likely than not) of the evidence the misconduct was committed by the “respondent.” The “respondent” is the term for the person facing elimination or separation. If the board concludes the respondent committed the misconduct, next the board must make a finding as to whether or not the misconduct warrants separation. If the board finds that elimination is warranted, then the board votes to determine the characterization of service.

The methods of fighting elimination are many and varied, and a defense is only as limited as the imagination and devotion of the counsel representing the respondent. There are no rules of evidence at a board of inquiry or administrative separation and it is incumbent on the attorney to leverage as much evidence against the government’s counsel as possible.

Despite the truncated rights a member has in administrative processes when compared to those involved at courts-martial, Congress has required the military to establish due process rights in all administrative procedures. Unfortunately, while Officers and enlisted members are entitled to advice and representation from appointed military lawyers, these actions are labeled “priority 2 and 3 actions” and are put behind the court-martial duties of military defense lawyers. When you retain Mr. Culp, he will make your career his highest priority.

If you are facing an officer show cause board, you have the right to be represented by an experienced civilian military defense lawyer. In many cases, an aggressive defense by a good civilian attorney may be the difference between retention and separation.