Blogs from May, 2024

Retaliation is a natural human desire when someone has hurt you. In the military, however, retaliation is not just morally wrong but constitutes a violation of the UCMJ when it wrongfully, intentionally, and adversely impacts the career of a protected service member. A service member convicted of retaliation can not only lose his or her military career but can receive substantial punishments to include a punitive discharge and years of confinement.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Background and Intent Behind Article 132, UCMJ

Article 132, UCMJ, criminalizes service members from retaliating against another person for reporting a criminal offense or making a protected communication, or from discouraging any person to report a crime or make a protected communication. Retaliation occurs when a person wrongfully takes or threatens to take adverse personnel action against the other person or wrongfully withholds favorable personnel action, like an award or favorable assignment.

A violation of Article 132, UCMJ, “may be committed by any person subject to the UCMJ with the authority to initiate, forward, recommend, decide, or otherwise act on a favorable or adverse personnel action who takes such action wrongfully and with the requisite specific intent.” Article 132, UCMJ, does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers.”

The offense of retaliation has become even more serious in recent years that it is now considered a “covered offense” under the UCMJ and will be reviewed by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for retaliation need to have the very best legal defense representation.

Retaliation – Threatening or Withholding Personnel Actions

Article 132, UCMJ, prohibits two general categories of misconduct: (1) retaliation; and (2) discouraging a service member from reporting a criminal offense or making a protected communication.

To be guilty of retaliation, the government must prove two elements:

1. That the accused wrongfully took or threatened to take an adverse personnel actionagainst any person, or withheld or threatened to withhold a favorable personnel action with respect to any person; and

2. That, at the time of the action, the accused intended to retaliate against any person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication.

Let’s break down the important definitions from those elements.

First, in order to be a violation of Article 132, the government must prove that an accused took adverse personnel action against or withheld favorable personnel action from another person. Under the offense, “personnel action” simply refers to any action taken on a service member that affects, or has the potential to affect, their “current position or career, including promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions concerning pay, benefits, awards, or training; relief and removal; separation; discharge; referral for mental health evaluations;” among other actions.

Next—and this is extremely important—there must be evidence that the accused intentionally retaliated against the other person due to their decision to report a crime or make a protected communication. Under Article 132, a personnel action is taken with the “intent to retaliate” when it is done “for the purpose of reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.” There are often lawful reasons why personnel actions are taken or withheld other than retaliation.

Discouraging a Report of Criminal Offense or Protected Communication

Article 132 also prohibits a service member from discouraging another person to report a criminal offense or making a protected communication. The difference between this offense and retaliation is timing. Before a report or protected communication is made, it’s a crime to discourage that communication. After a report or protected communication is made, it’s a crime to retaliate against the service member who submitted the complaint.

To be guilty of discouraging a report of criminal offense or protected communication, the government must prove:

1. That the accused wrongfully took or threatened to take an adverse personnel action against any person, or withheld or threatened to withhold a favorable personnel action with respect to any person; and

2. That, at the time of the action, the accused intended to discourage any person from reporting a criminal offense or making a protected communication.

Many of the same definitions as above apply to this offense. The key difference is that, under this offense, the accused was trying to discourage a person from reporting a crime and making a protected communication.

What is a protected communication?

Under Article 138, UCMJ, a protected communication can mean:

(A) A lawful communication to a Member of Congress or an Inspector General.

(B) A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of:

(i) A violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination;

(ii) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Defenses to Allegations of Reprisal

Defense under Article 132 can be highly fact specific. However, it is always a defense to a charge of retaliation for an accused to show that the personnel action was a lawful and appropriate exercise of command authority to discipline or reward a service member. After all, just because someone didn’t receive an award or is facing adverse action does not mean there is a violation of the UCMJ.

Evidence of a lack of intent to retaliate or discourage can also be a defense as specific intent is a required element of either charge. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for violating Article 132 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

Retaliation is considered a Category 2 offense under the Manual for Courts-Martial’s sentencing guidelines and therefore requires a sentence of 1-36 months of confinement for any conviction.

Protect Your Freedom and Military Career

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.

From the jilted ex-lover, to the stranger leering at the attractive new neighbor, to the maniac with road-rage or the violent sociopath that turns an online date into a romantic obsession, Hollywood is well-known for its psychological thrillers and “stalker” movies. While Hollywood movies are certainly over the top and often unrealistic, stalking is a serious offense under the UCMJ that can not only end a service member’s career but result in significant punishments.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Background and Intent Behind Article 130, UCMJ

Article 130 criminalizes service members from engaging in any course of conduct that would cause another person to reasonably fear death or bodily harm. Unlike in the movies, however, stalking doesn’t simply mean following a person around. Prohibited behavior can include any type of conduct that induces reasonable fear in another person and can include the use of surveillance, emails, texts or other electronic communications.

The offense of stalking has become even more serious given that it is now considered a “covered offense” under the UCMJ and will be reviewed by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for stalking need to have the very best legal defense representation.

Elements of Article 130, UCMJ

To be guilty of violating Article 130, UCMJ, the Government must prove three elements:

1. That the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner;

2. That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner; and

3. That the accused’s conduct induced reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner.

Let’s break down the important definitions from those elements.

Definitions and Explanation

First, in order to be a violation of Article 130, the government must prove that an accused engaged in a “course of conduct directed at a specific person.” Stalking is not a one-time incident where another person feels uncomfortable, but rather a series of repeated (two or more) actions, comments, threats (express or implied, written or verbal), or pattern of conduct directed at a specific person. Prohibited behavior can include any type of conduct including the use of surveillance, emails, texts or other electronic communications.

It’s important to note that the person who is the subject of the stalking does NOT have to be another service member. Rather, stalking can also be committed if the conduct is directed against the person’s immediate family (e.g. spouse, parent, brother or sister, child, etc) or against “any other person living in his or her household and related to him or her by blood or marriage.”

The subject of the stalking may also be the person’s “intimate partner” which can include a former spouse, a person who shares a child in common with the specific person, a person who lives with the person, or someone who is in a romantic relationship with the person.

Next, an accused’s course of conduct must cause a reasonable person to fear death or bodily harm. This is one of the most important elements of stalking because it requires the jury to determine if the alleged fear was reasonable. If it was NOT reasonable for the person to fear death or bodily harm, then there is no violation of Article 130, UCMJ. Keep in mind, however, that “bodily harm” is a very broad term and is defined as “offensive touching of another, however slight, including sexual assault.” If the person reasonably feared that would be touched, even slightly, then that element of the offense is met.

Finally, in order for there to be a violation of Article 130, the government must prove that the accused knew, or should have had known, that the specific person would be placed in reasonable fear of death or bodily harm. To prove “should have known,” the government must establish that the circumstances were such as would have caused a reasonable person in the same or similar circumstances to know that the alleged victim would be placed in reasonable fear of death or bodily harm to themselves or another due to the accused’s course of conduct. This determination must be based on all relevant facts and circumstances.

Defenses

Any defense under Article 130 is highly fact specific. A stalking charge may be defeated if the defense can show that the accused did not engage in a “course of conduct,” that the alleged victim did not have a reasonable fear of death or bodily injury, or that the accused did not have (and should not have had) knowledge that his or her actions would place another person in fear of death or injury. This “mens rea” or knowledge requirement is particularly important for the defense. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for violating Article 130 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. Stalking is considered a Category 2 offense under the Manual for Courts-Martial’s new sentencing guidelines and therefore requires a sentence of 1-36 months of confinement for any conviction.

Protect Your Freedom and Military Career

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.

Commissioned and warrant officers serving the Army National Guard can be subject to withdrawal of Federal recognition (WOFR) proceedings when there is “sufficient evidence” of misconduct, substandard duty performance, or other concerns or conditions that warrant separation processing. Eligible officers are entitled to a “Board of Officers” who will recommend their retention in or separation from the National Guard.

Military Justice Attorneys (MJA) has successfully represented countless military officers facing court-martial, administrative separation, or other adverse action. If you have been notified of WOFR proceedings and want to fight for your career, contact us today for your free consultation.

Legal Authority

Title 32, United States Code Section 323 provides that the “capacity and general fitness of an officer of the National Guard for continued Federal recognition may be investigated at any time by an efficiency board composed of commissioned officers.”

National Guard Regulation (NGR) 635-100, Termination of Appointment and Withdrawal of Federal Recognition, and NGR 635-101, Efficiency and Physical Fitness Boards, implement 32 USC § 323 and sets forth the criteria and procedures governing WOFR proceedings.

Reason to Withdraw Federal Recognition

WOFR proceedings may be initiated against any officer who demonstrates substandard performance of duty or conduct, character deficiencies, fails to meet medical standards, or is otherwise unsuited for military service. Possible bases for separation include:

Substandard Performance of Duty. An officer’s duty performance is substandard and requires the withdrawal of Federal recognition when there is: (a) a downward trend in overall performance resulting in unacceptable inefficiency or mediocre service; (b) a failure to exercise necessary leadership or command; (c) lack of technical proficiency; (d) failure to meet standards for student officers; (e) failure to discharge assignments; or (f) apathy, defective attitude, or another character disorder the renders the officer unfit.

Moral or Professional Dereliction. An officer may be separated for moral or professional dereliction as a result of personal failures. Examples include unjustified failure to meet personal financial obligations, mismanagement of personal affairs that discredit the Army National Guard, intentional omissions or misstatement of facts in official records, acts of personal misconduct, conduct unbecoming an officer, and criminal convictions, among other conduct.

National Security Concerns. An officer may also require the withdrawal of Federal recognition when his/her conduct is “not clearly consistent with the interests of national security.”

Medical, physical or mental condition. Officers with medical, physical or mental conditions which prevent them from performing their military duties must have their Federal recognition withdrawn. A determination of an officer’s fitness is case specific analysis. The regulation explains that an official may be unfit for service from the overall effect of two or more impairments even though the impairments individually would not cause unfitness.

Initiation and Processing of WOFR Proceedings

A WOFR proceeding can be initiated by any commander in the officer’s chain of command, the State Adjutant General, the Chief, National Guard Bureau, or the Chief of Staff, U.S. Army. Recommendations from the chain-of-command and other endorsing authorities are forwarded to the Army area commander for review and action.

The area commander has a few options after receiving the recommendations. The commander can disapprove the recommendation and close the case, return the case and for additional evidence, or direct an AR 15-6 investigation into the allegations. If the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition, the commander will notify the officer that he or she is required to show cause for retention.

An officer who receives such a notification also has a few options. The officer may submit a resignation in lieu of withdrawal of Federal recognition, may elect appearance before a board of officers—this is an in-person board hearing (discussed more below), or may elect transfer to the Retired Reserve if eligible.

Officers must be given at least 10 days after being notified of elimination to submit a resignation in lieu of further processing. Resignation must be submitted through command channels to the appropriate State Adjutant General. Officers have the right to submit a resignation at any time before final action on a board proceeding. An officer can withdraw his or her resignation at any time prior to final acceptance.

The commander must meet certain requirements before initiating a demotion action for inefficiency. Specifically, the commander must have evidence that Soldier was counseled, and that rehabilitation was attempted and there must be a formal record of substandard performance during the period concerned. The evidence must establish a pattern of inefficiency rather than a single-time failure by the Soldier.

Boards of Officers Hearing

A “Boards of Officers” hearing provides respondents with the greatest due process rights, entitling them to an attorney and a fair and impartial hearing to contest the allegations against them. This includes the right to:

• Appear in person before the board;
• Receive copies of the records that will be submitted to the board;
• Submit statements on his/her on behalf;
• Be represented by military or civilian counsel;
• Be allowed a reasonable time to prepare his/her own case.

The most important of these rights is, of course, the right to counsel. An experienced, dedicated, and talented attorney is often the difference between an officer being retained or separated.

The importance of having a great attorney is magnified by the fact that the burden of proof lies with the officer. To be retained in the military, the officer must “produce convincing evidence that his Federal recognition should not be withdrawn. In the absence of such a showing by the officer, the board must recommend withdrawal of Federal recognition.”

A Boards of Officers will be composed of at least four commissioned officers, with an equal number from the Regular Army and the Army National Guard. All voting members are typically senior to the respondent. At least one board member must be female if the officer facing elimination is female. Similarly, a medical officer is required when an officer’s physical fitness is a basis for the WOFR proceeding.

The job of the board members is to hear all the evidence and reach findings and recommendations. Board findings must be supported by substantial evidence. The board’s recommendation will be limited to retention or withdrawal of Federal recognition.

In accordance with NGR 635-101, officers may only be separated upon the approved recommendations of a board of officers unless he or she submit a resignation in lieu of proceeding, has less than 3 years commissioned service and fails to meet standards of service school, or is an officer with 20 or more years of qualifying Federal service and is being considered for separation because of substandard performance of duty.

MJA has a Proven Track Record of Success

MJA has successfully represented countless military officers facing court-martial, administrative separation, or other adverse action. Here are a few examples:

• A Captain (O-3) in the Army National Guard was directed to show cause for retention at a Withdrawal of Federal Recognition proceeding stemming from serious and publicly broadcast allegations. MJA successfully litigated allegations of assault/battery by conducting its own in-depth investigation and by preparing a sound legal defense that included a presentation of key witness testimony as well as irrefutable video and documentary evidence. The Board unanimously voted to retain the officer to continue his military career.
• A Captain (0-6) in the United States Navy was ordered to show cause at a Board of Inquiry (BOI) following his detachment for cause (DFC). MJA worked closely with detailed military counsel to provide the members of the BOI with a full and more fair accounting of the events leading up to the DFC. The board voted unanimously to find no basis for any of the three allegations of substandard performance of duty. The 0-6 was retained on active duty and is excited for the opportunity to continue to serve.
• An Army Chief Warrant Officer (CWO) sought help from MJA to fight a GOMOR and threats of elimination from the Army. MJA guided the CWO in gathering statements and other evidence to support the formal response submitted on his behalf. MJA then engaged with the command leadership and the CWO to ensure he had the full support of his chain of command and other mentors within his professional community. With MJA’s help, the CWO received formal notification of retention in the Army and was later selected for promotion to the next rank.
• A Lieutenant Commander (O-4) in the United States Navy accused of sexual harassment and several other serious violations of the UCMJ hired MJA after being detached for cause and offered NJP. MJA advised the LCDR to refuse the NJP and demand a court-martial. After many delays and months of waiting, the Navy sent the officer to a BOI instead of court. MJA successfully defended the LCDR against all allegations brought forward as the basis for the DFC and offer of NJP. The BOI found NO BASIS for any of the alleged misconduct and retained the LCDR in the Navy.

Contact MJA Today

If you are an Army National Guard Officer facing withdrawal of Federal recognition, you are not alone! MJA has a long track record of helping officers just like you fight and win unjust separation actions. If you have been notified of WOFR proceedings and want to fight for your career, contact us today for your free consultation.