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Attorney Jon Shelburne of Military Justice Attorneys has secured a not-guilty verdict for a Fort Cavazos Soldier who was charged with murder. Staff Sergeant Marlone Best fatally shot Larry Kidd Jr. in an altercation, but a self-defense argument posed by Attorney Shelburne convinced the jurors that his actions were justified, avoiding a conviction that would have changed his life dramatically forever. From all of us at Military Justice Attorneys, we congratulate Attorney Shelburne on this important case result for a military service member in a difficult situation.

Details of the Killeen Fatal Shooting

In February 2024, Staff Sgt. Marlone Best was in a fast food restaurant at night in Killeen, Texas, when Larry Kidd bumped into him and said, “I’m going to kill you.” The violent threat would have been random had Kidd not been harassing and threatening Best for several months because Best was dating Kidd’s ex-wife. Previously, Kidd sent Best threatening text messages, attempted to jump him at his home with several other men, and attempted to hit his car (occupied by Best and his two daughters) with his own vehicle.

Fearing that Kidd was going to attempt to imminently act on his death threat, Best struck him as he turned away, beginning a brawl that culminated in Best discharging his personal firearm four times in the parking lot, striking Kidd twice. Afterward, when people attempted to provide first aid to Kidd, Best brought a medical kit out of his car to assist them. He stayed at the scene and allowed the police to arrest him peaceably.

Best’s Criminal Charges & Trial

Following the shooting, Best was charged with two counts of murder: unpremeditated murder and murder that occurred while engaged in behavior that was dangerous and disregarded the safety of others (due to the shooting taking place in the parking lot of a busy restaurant). If he was convicted, he could have been sentenced to life in prison. The Army Office of Special Trial Counsel was set to prosecute the case, and the panel of jurors included four military officers, so Best sought the legal counsel of a criminal defense team with insight into military criminal proceedings.

Attorney Jon Shelburne, joined by Attorney Major Steven Dray, began to examine the details and available evidence of the altercation. Security footage from three cameras inside the restaurant helped show the truth of the scene, including Kidd’s death threat to Best. Other evidence, like the text messages Kidd sent to Best to threaten him in the past, proved just as important when preparing the case.

Ultimately, it was decided that a self-defense argument, including the defense of Best’s children, was the correct approach. With Kidd’s history of attempts to harm Best and his children, it was argued that the use of his firearm in the altercation was justified. After several hours of deliberation and a question to the judge about the definition of self-defense under the law, the jurors agreed and returned a not-guilty verdict.

With the harrowing incidents and the trial behind him, Best plans to resume his Army career. He was going to attend recruiting school the same week that Kidd threatened him in the restaurant, so he can now continue that plan. Again, we congratulate Attorney Shelburne and thank him for securing this important case result for a military service member who needed a strong defense and got it.

To learn more about this case, you can click here to read a full article from Stars and Stripes, a digital publication about news related to the military and veterans.

Contact MJA Today

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. Military Justice Attorneys has defended service members facing investigation, court-martial, and discipline for some of the most serious offenses under the UCMJ. Contact us today and set up a consultation.

It was an exciting, fast-paced, and ground-breaking year for MJA filled with battles won, clients we were proud to represent, and expansion into new and exciting practice areas.

In 2024, MJA fought victoriously for clients at courts-martial, administrative separation boards, and the military’s correction boards, as well as defended service members facing a host of adverse administrative actions—with specular results. MJA also represented active-duty service members and veterans in federal litigation for claims arising under the Servicemembers Civil Relief Act (SCRA), Camp Lejeune Justice Act, and Defense Base Act.

Through it all, MJA has worked diligently to provide our clients with the highest quality representation and to fulfill our mission to Defend Those Who Defend Us.

COURT-MARTIAL DEFENSE
MJA’s court-martial practice saw continued success in 2024, resulting in huge wins for clients including non-prosecutions and the dismissal of charges from numerous courts-martial.

One memorable case involved a non-commissioned officer in the United Sates Air Force who was charged at general court-martial for allegations of sexual assault in violation of Article 120, UCMJ. MJA worked closely with the client throughout the trial and even pre-trial phases, including the felony investigation by the Air Force OSI and the Article 32 pre-trial investigation. MJA aggressively defended the client and litigated every aspect of the Government’ prosecution. At trial, all charges and specifications were withdrawn and dismissed “with prejudice” based on new developments in the case. The Airman’s Commander directed that no further adverse action be taken against the client and that his personnel hold be lifted, allowing him to continue to serve honorably in the Air Force.

MJA successfully fought for dismissal of charges in numerous other courts-martial across the Department of Defense with allegations ranging from drug abuse to sexual assault, resulting in careers and retirements being saved. Court-martial defense remains at the heart of MJA’s military law practice. It means the world to us that we are able to know our clients personally, fight for them in their darkest hour, and share in their celebration when we succeed!

ADMINISTRATIVE SEPARATION DEFENSE
MJA successfully represented numerous service members facing administrative separation in 2024, including multiple findings of “NO BASIS” for service members who tested positive for “Delta 8” THC.

In one case, a senior enlisted member in the United States Navy was processed for involuntary administrative separation after testing positive on a urinalysis for Delta-8 Tetrahydrocannabinol (THC 8). MJA argued key evidence which supported innocent (i.e., unknowing) ingestion of a hemp-derived substance lawfully sold and commonly found in vapes, edibles, and lotions. In light of the evidence—including character witness testimony—and the oral presentation of MJA counsel, the Administrative Separation Board had no choice but to find that the Government's evidence was insufficient to establish any basis for separation. The Board denied the command's recommendation for substantiation and retained the Sailor on active duty.

In another case, a Specialist in the United States Army was threatened with potentially career-ending consequences after testing positive for THC-8. After engaging the Soldier’s leadership, the command elected not to prefer charges to court-martial or take the Soldier to a separation board. MJA represented the client as their spokesperson at nonjudicial punishment in accordance with the Manual for Courts-Martial, UCMJ, and Army Regulation 27-10 and 15-6. In light of the rebuttal matters submitted to the Commander for consideration, the Commander directed that all rank reduction and forfeitures be suspended and that the Soldier be recommended for retention. Involuntary administrative separation was not initiated.

In a case involving a reservist, a non-commissioned officer in the United States Navy Reserve was threatened with an involuntary administrative separation and Other than Honorable (OTH) characterization of service after testing positive for Delta-8 Tetrahydrocannabinol (THC 8) on three occasions. MJA represented the Sailor at the board hearing and presented a compelling case of innocent ingestion of the substance. After hearing all the evidence, the Board determined that the Government’s evidence was insufficient to establish any basis for separation and retained the client in the United States Navy Reserve.

These are just a few of the many results MJA saw in its administrative separation defense. MJA is honored to fight for the careers of servicemembers.

ADMINISTRATIVE REBUTTALS / APPEALS
In our administrative rebuttals and appeals practice, MJA helped numerous service members in 2024 overcome adverse administrative actions they were facing.

In one case, a senior enlisted Sailor in the United States Navy Reserve was improperly issued an adverse evaluation and counseling record for inclusion in his permanent military record. MJA expertly advised the client on the process for requesting redress, or filing a Complaint of Wrongs, pursuant to Navy Regulation and the Uniform Code of Military Justice. On behalf of the client, MJA submitted to the Commanding Officer a request for redress. After carefully considering the facts and circumstances, as well as the firm’s legal analysis, the Commanding Officer granted the requested redress. This extremely favorable outcome will allow the Sailor to be meaningfully considered for promotion and to advance their military career.

In another case, a Specialist in the Army National Guard was threatened with dismissal from an Army school following a formal Army Regulation (AR) 15-6 investigation into alleged use and possession of contraband/nicotine, as prohibited by the military school, in violation of Article 92, UCMJ. MJA worked closely with the client and witnesses to avoid such career-ending consequences. MJA responded to the false allegations with the proper tone and highlighted key evidence in defense. In light of MJA’s rebuttal, the Commander directed that no permanent adverse action be taken against the client. The client graduated without any loss of rank or pay and will now be permitted to continue their Honorable service in the Army National Guard

In other administrative actions, MJA successfully worked to get sexual harassment allegations unsubstantiated, GOMORs rescinded or locally filed, and other adverse actions terminated.

MILITARY CORRECTION BOARD APPEALS
At the military’s correction boards, MJA helped clients upgrade their characterization of service, expunge titling and indexing determinations, and remove unfavorable records from their official military records.

In a case before the Naval Discharge Review Board (NDRB), MJA represented a former Marine Corporal who was discharged with an Other than Honorable (OTH) characterization of service after receiving two NJPs and multiple counselings for violating Article 86 (AWOL) and 92 (Orders Violation), UCMJ. MJA provided substantial evidence to the NDRB that the Marine's rights were violated during the separation process and that an OTH discharge was unjust under the circumstances. The NDRB agreed with MJA that the Marine's service met the standards of acceptable conduct and performance and that MJA submitted substantial credible evidence to rebut the presumption of regularity in government affairs. Based on these findings, the Board unanimously determined that an OTH discharge was inequitable and upgraded the Marine to a FULLY HONORABLE characterization of service.

In another case, MAJ represented a Sergeant in the United States Army before the Army Discharge Review Board (ADRB). The Sergeant was administratively separated for misconduct (serious offense) under AR 635-200 and given a General (Under Honorable Conditions) discharge, separation code JKQ, and reentry code 3 after refusing to take the COVID-19 vaccine. MJA petitioned the ADRB for a discharge upgrade. The Board determined that the Soldier’s discharge was inequitable and upgraded the Soldier’s characterization of service to fully “Honorable”, changed the narrative reason for separation to “Completion of Required Active Service”, changed the separation code to “KBK”, and changed reentry code to RE-1 which would allow the Soldier to rejoin the military should he so choose.

Titling appeals, in particular, are extremely difficult. In one memorable case, MJA represented a former Marine who was voluntarily released from active duty, seemingly in good standing. However, criminal background checks showed otherwise, as the former NCO was investigated by NCIS for felony allegations of sexual assault while on active duty. MJA partnered with the client to clear their good name and reputation. Even post-service, the client’s name populated the subject block of the related NCIS investigation that appeared on criminal background checks and ultimately operated to prevent the client from securing civilian employment in law enforcement. MJA submitted a robust written appeal for removal, highlighting key evidence that justified the client’s request for subject titling removal. The petition was GRANTED.

MILITARY MASS TORTS
In 2024, the 3M defective earplugs litigation ended, resulting in MJA clients being compensated for their injuries. With the close of that litigation, MJA began pursuing claims for active-duty service members, veterans, civilians, and first responders who suffered injuries or illnesses caused by exposure to Aqueous Film Forming Foam (AFFF).

Known commonly as firefighting or firefighter foam, AFFF has been linked to various types of cancers, ulcerative colitis, thyroid disease, and devastating consequences for victims and families. MJA is working to help members of the military community who were exposed to AFFF as a result of their military service and now suffer the effects.

One of the most groundbreaking legal developments over the past few years for Marine veterans was the passage of the Camp Lejeune Justice Act. In 2024, MJA filed continued to file claims and lawsuits on behalf of eligible clients and maintained an active role representing Marines and their families in this litigation.

As background, for over 30 years Marines, their loved ones, and civilian contractors living and working aboard at Camp Lejeune and MCAS New River were exposed to drinking water systems contaminated with industrial chemicals. Numerous types of cancer, Parkinson’s disease, birth defects, female infertility, and other health conditions have been linked to these contaminants. After years of denying justice to those harmed by the contaminated water, the Camp Lejeune Justice Act became law in 2022, creating a federal cause of action to allow those who suffered from water contamination to file lawsuits for compensation.

As Marines ourselves, MJA immediately became involved in the litigation and is proud to represent Marines and their families who were harmed by the contaminated drinking water at Camp Lejeune. MJA has already seen some of these cases be resolved and anticipates that 2025 will be a ground-breaking year for the litigation.

SERVICEMEMBERS CIVIL RELIEF ACT
The Servicemembers Civil Relief Act (SCRA) is one of the military’s longest standing federal laws that aims to provide peace of mind to active-duty military members and their families. Under the SCRA, military members are granted temporary suspension from certain civil duties, including outstanding debts, mortgage payments, taxes and termination of leases.

MJA has a long history of representing servicemembers under the SCRA. Most recently, MJA represented a Soldier whose vehicle was repossessed for an alleged breach of the purchase agreement while he was at boot camp. Upon investigation, MJA determined that the dealer failed to obtain a court order allowing the repossession prior to retaking the vehicle in violation of the SCRA. After filing a lawsuit in federal court, the dealer cooperated in resolving the matter. MJA obtained a favorable settlement that included compensation for financial and other harms and full release of all future obligations on the vehicle for the client

DEFENSE BASE ACT
In 2024, MJA relaunched its Defense Base Act practice to represent civilians, military veterans, and local nationals who were injured overseas while working as contractors in support of the U.S. Government operations.

Adopted in 1941, the Defense Base Act provides workers’ compensation protection to civilian employees working outside the United States on U.S. military bases or under a contract with the U.S. government for public works or for national defense. Contractors who have been exposed to and incurred a physical or psychological injury due to their work overseas may be eligible for medical treatment or other benefits.

At MJA, it is our honor to represent the military community and those who support it, and we are excited to continue to represent clients under the Defense Base Act in 2025.

THANK YOU!
MJA is thankful for all the clients we were able to help in 2024 and looks forward to fighting for more service members in the new year. If you or a loved one need an experienced military attorney in your corner, contact us today for a free consultation.

The Constitution grants the President of the United States the power to grant clemency or pardon individuals convicted of federal offenses, including military service members. The White House recently announced that President Biden will grant clemency to a record number of Americans. Earlier this year, President Biden pardoned military service members who were convicted under Article 125, UCMJ.

MJA is a veteran owned and operated law firm specializing in the representation of active-duty service members and veterans. If you are a veteran who was convicted at court-martial and want more information about requesting a presidential pardon, please contact MJA today for more information.

Presidential Pardon for Article 125, UCMJ, Convictions

On June 25, 2024, President Joe Biden issued a Presidential proclamation that gave full and unconditional pardons to military service members and veterans who had been court-martialed and convicted under Article 125 of the Uniform Code of Military Justice (UCMJ) for sexual acts with consenting adults. The pardon also extended to service members convicted of “attempts, conspiracies, and solicitation to commit” such acts.

Under the “Don’t Ask, Don’t Tell” era of the U.S. Armed Forces, Article 125 included statutes that criminalized sodomy, including consensual acts of intimacy. For many, Article 125 felt like it was broadly and intentionally discriminatory against LGBTQI+ military service members because it criminalized acts that were entirely legal outside of the military. In 2013, it was repealed, but the damage was already done to countless military service members who had put their lives on the line to defend the freedom of Americans everywhere.

With President Biden’s proclamation, any service member convicted of violating former Article 125 based on conduct involving sexual acts with consenting adults has received a “full, complete, and unconditional” pardon (with limited exceptions that mostly involve other co-occurring UCMJ violations). The proclamation applies to all qualifying convictions that occurred between May 31, 1951, and December 26, 2013.

What are the Benefits of Receiving This Pardon?

By receiving a Presidential pardon, any negative consequence of court-martial and conviction will generally be removed, such as limitations imposed on:

• Military benefits
• Voting rights
• Ability to run for public office
• Earning and holding certain licenses
• Employment opportunities
• Much more

Importantly, the pardon does not expunge the court-martial conviction, so both would still appear on a pardoned military service member’s record. Also, the pardon does not automatically upgrade a pardoned military service member’s discharge status, nor does it qualify them for an automatic reconsideration of discharge status.

Can You Get a Certificate of Pardon?

President Biden’s pardon for convictions under Article 125 UCMJ may be broadly useful, but it still requires you to take steps to benefit from the pardon. You will have to apply for a certificate of pardon by using an Application for Pardon Following Completion of Sentence. To make certain you know how to obtain and fill out this application, start by talking with an attorney from Military Justice Attorneys, offering counsel to military service members and veterans from all branches and living anywhere in the world.

You can count on us for guidance throughout your Article 125 pardon application process, so you don’t have to worry about missing any important steps. We can also talk to you about possibly filing to have your discharge reviewed and upgraded.

Contact MJA Today

MJA is committed to ensuring that service members who were convicted under Article 125, UCMJ, get the relief they are entitled to. If you have any questions about the Article 125 UCMJ pardon proclamation given by President Joe Biden, including how to gain the benefits of the pardon, please call (843) 773-5501 to connect with Military Justice Attorneys today. Initial case consultations with our attorneys are FREE for military service members and their families.

Service members in leadership positions are held to the highest personal and professional standards, especially when it comes to dealing with military recruits and trainees. Leaders who engage in certain prohibited activities with those under their charge may be administratively punished or even criminally prosecuted for violating Article 93a, UCMJ.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA are all military officers who served on active duty and have defended drill instructors/sergeants, recruiters, and cadres against 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 93a, UCMJ

Article 93a is intended to criminalize situations that involve the improper use of authority by virtue of an individual’s position in either a training or recruiting environment. There are two categories of leaders who can be charged with an offense under Article 93a: military recruiters and those in a “training leadership position.” Each of these categories is discussed below.

Article 93a was created due to the inherent power differences between junior service members and leaders in the ascension and training pipeline. Article 93a explains that “military law, regulation, and custom invest officers, non-commissioned officers, drill instructors, recruiters, cadre, and others with the right and obligation to exercise control over those they supervise. In this context, inappropriate sexual activity between those potentially vulnerable persons and those with authority to exercise control over them is inherently destructive to good order and discipline.”

However, not all contact or associations between leaders and junior personnel are prohibited by Article 93a. Rather, the purpose of Article 93a is to prevent “inappropriate sexual activity” between leaders and recruits, trainees, students in military training, and other potentially vulnerable persons in the initial training environment. Article 93a recognizes that leaders may have preexisting relationships that are not prohibited by the article. Additionally, Article 93a “criminalizes only activity occurring when there is a training or recruiting relationship between the accused and the alleged victim.”

Prohibited Conduct Among Those in “Training Leadership Positions”

Under Article 93a, service members serving in a “training leadership position” are prohibited from engaging in “inappropriate sexual activity” with certain junior service members. Those in a “training leadership position” generally include drill instructors, cadre, faculty, and staff at military academies, as well as others in the military training environment or schoolhouse who are in a position of leadership over junior service members.

For these leaders to be guilty of violating Article 93a, the Government must prove three elements:

1. that the accused is an officer, a noncommissioned officer, or a petty officer;
2. that the accused is in a training leadership position with respect to a specially protected junior member of the armed forces; and
3. that the accused engaged in prohibited sexual activity with such specially protected junior members of the armed forces.

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

First, it’s important to note that not all senior leaders are covered by Article 93a. Rather, in order to be punishable under the UCMJ, the senior leader must be in a “training leadership position” over the junior service member. The term “training leadership position” means any of the following:

(A) Any drill instructor position or other leadership position in a basic training program, an officer candidate school, a reserve officers’ training corps unit, a training program for entry into the armed forces, or any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification.

(B) Faculty and staff of the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, and the United States Coast Guard Academy.

Likewise, Article 93a does not protect everyone serving in the military; it only protects “specially protected junior members of the armed forces.” The term “specially protected junior member of the armed forces” means—

(A) a member of the armed forces who is assigned to, or is awaiting assignment to, basic training or other initial active duty for training, including a member who is enlisted under a delayed entry program;

(B) a member of the armed forces who is a cadet, a midshipman, an officer candidate, or a student in any other officer qualification program; and

(C) a member of the armed forces in any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification

Finally, in order for there to be a violation of Article 93a, the government must prove that the leader engaged in “prohibited sexual activity.” The term “prohibited sexual activity” is defined “inappropriate physical intimacy under circumstances described in such regulations. The individual services are required to determine and specify which actions are prohibited under this offense.

Military Recruiters Cannot Engage in Prohibited Sexual Activity

Military recruiters are the second category of leaders who can be charged under Article 93a, UCMJ. For a military recruiter to be guilty of violating Article 93a, the Government must prove:

1. the accused is a military recruiter and engages in prohibited sexual activity with an applicant for military service; OR
2. that accused is a military recruiter and engages in prohibited sexual activity with a specially protected junior member of the armed forces who is enlisted under a delayed entry program.

Article 93a defines the term “military recruiter” as a “person who, under regulations prescribed by the Secretary concerned, has the primary duty to recruit persons for military service.”

Once the government has established that the accused was a military recruiter, the government must show that the junior service member was either an “applicant for military service” or a “specially protected junior member of the armed forces.”

An “applicant for military service” is “a person who, under regulations prescribed by the Secretary concerned, is an applicant for original enlistment or appointment in the armed forces.”

The term “specially protected junior member of the armed forces” means—

(A) a member of the armed forces who is assigned to, or is awaiting assignment to, basic training or other initial active duty for training, including a member who is enlisted under a delayed entry program;

(B) a member of the armed forces who is a cadet, a midshipman, an officer candidate, or a student in any other officer qualification program; and

(C) a member of the armed forces in any program that, by regulation prescribed by the Secretary concerned, is identified as a training program for initial career qualification

Importantly, an accused must have actual or constructive knowledge that a person was a “specially protected junior member of the armed forces” or an “applicant for military service.” Knowledge may be proved by circumstantial evidence.

Defenses

Any defense under Article 93a is highly fact-specific. In some cases, there may be no direct or circumstantial evidence to corroborate the allegation, or it may be that the complaining witness has a motive to make a false allegation, all of which are relevant to defending against the charge. Importantly, consent is not a defense under Article 93a.

Commanders sometimes try to punish leaders for conduct that is merely inappropriate but does not constitute prohibited sexual activity. While such behavior may constitute fraternization of a violation of a military order, it would not meet the elements for a violation of Article 93a. A skillful attorney can identify deficiencies in the allegations and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for violating Article 93a is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

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 drill instructors/sergeants, recruiters, and cadre facing investigation, trial, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Contact us today for a free consultation.

Defense Base Act FAQs

The Defense Base Act (DBA) is an important federal law that provides disability compensation, medical treatment, and death benefits to employees of U.S. government contractors who are injured or killed while performing work overseas.

As a veteran-owned and operated law firm, MJA is committed to ensuring that U.S. government contractors and their families receive the maximum benefits and legal protections they are entitled to under law. Our experienced Defense Base Act attorneys can investigate your case, provide trusted advice, and properly submit a claim for benefits. Best of all, you don’t pay any out-of-pocket expenses for our services.

If you or a loved one were injured while working as a U.S. government contractor overseas, you might be able eligible for benefits under the Defense Base Act. Below are some of the most frequently asked questions (FAQs) about Defense Base Act. Review them and then call us today at (843) 773-5501 for a free consultation.

Frequently Asked Questions

1. What is the Defense Base Act (DBA)?

The DBA is an extension of the Longshore and Harbor Workers' Compensation Act (LHWCA) which is a federal law that provides disability compensation and medical benefits to employees of U.S. government contractors who perform work overseas. The DBA also provides death benefits to eligible survivors of U.S. contractors who are killed while working overseas.

2. Who is typically covered under the DBA?

You are likely covered by the DBA if you:

• Work for a private employer on a U.S. military base or foreign land used by the U.S. military;
• Work on “public work” contracts with a U.S. government agency, including those related to construction and service related to the U.S. military;
• Work on foreign land for a contract funded by the Foreign Assistance Act; and/or
• Work for an American employer that provides welfare or similar services outside the U.S. for the benefit of the Armed Services (like the USO).

3. What is “public work” under the DBA?
The DBA defines “public work” as “any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal, or repair for the public use of the U.S. or its allies.” Importantly, public work does not have to be expressly related to construction work and includes any project connected with national defense or war activities.

4. Does DBA cover worker injuries and deaths?

Yes. DBA coverage for eligible workers applies when an injury or death occurs during approved work tasks or activities, including transportation to and from the place of employment if the transportation is provided by the employer or a U.S. agency.

5. What benefits can I get under the DBA?

Like workers’ compensation for the average worker, the DBA primarily provides disability and medical benefits to eligible workers, as well as certain death benefits provided to eligible survivors of employees who lost their lives through employment-related causes. Total disability benefits through DBA are usually equal to two-thirds of the worker’s average weekly earnings, up to a cap that changes due to annual cost of living adjustments. Necessary medical treatments related to the work injury are also typically covered.

6. What should I do if I am injured at work?

If you are covered by the DBA and get hurt at work and do not need emergency medical care, you should notify your employer or supervisor as soon as possible. Make sure you maintain a record of all communications. If you need medical treatment, you can also ask your employer for a Form LS-1 Request for Examination and/or Treatment. If you need emergency medical care, get it first and then ask your employer for the right authorization form.

Injured workers are required to give an employer written notice of any injury by submitting a Form LS-201 (Notice of Employee’s Injury or Death) within 30 days of any work-related injury.

7. How do I obtain medical treatment for my injuries?

If you are you seriously injured on the job and need immediate treatment, you should go to the nearest hospital and let your employer know what happened as soon as possible. If it is not an emergency, you can ask your employer to authorize treatment from a medical provider of your choice. The DBA insurance carrier is responsible for paying the cost of medical transportation and/or medical care of any covered injury.

8. Can I receive financial compensation for a work-related disability?

Yes, if you qualify. Employees who are disabled for more than 3 days are eligible for disability compensation, but it is not immediate. Payments typically begin 14 days from the date the employer was notified of the loss in wages but are not overdue until 28 days after they are notified. In other words, the carrier has 28 days to provide you the first payment. If you do not receive your compensation in a timely matter or have questions about the amount you are receiving, you should discuss your case with an attorney.

9. Do you always get disability payments under the DBA?
No, you are likely not eligible to get disability payments (wage replacement benefits) if you miss 3 or fewer days of work due to your injury. However, you should be eligible for medical benefits if you are injured at work or while performing DBA-covered work, regardless of how many days or shifts you miss.

10. Are all employers of DBA-eligible workers required to carry workers’ comp insurance?
Under the DBA, any employer, which includes contractors and subcontractors, that hires workers under circumstances covered by the DBA must secure workers’ compensation insurance or gain permission to be self-insured. If your employer claims that they did not have to provide you with DBA workers’ compensation coverage, they might be mistaken. Always talk to an attorney if you have any questions about the benefits that may be owed to you.

11. Do I have to pay out-of-pocket for an attorney?

No, you don’t pay any out-of-pocket expense for our services. We will keep track of the amount of time we spend on your case, and the expenses generated in representing you for your claim. At the end of a successful claim, we file a petition with the court and ask the court to order the insurance company to pay our legal fees. If your case is settled, then our fees will likely be negotiated with the insurance company.

12. Can MJA represent me if I live overseas or in another state?

Yes. The Defense Base Act applies around the world and our attorneys can represent you regardless of where you are currently located. When there is a deposition or hearing taking place on your case, your attorney will come to you and meet with you in person or coordinate with you through video telephonic conference.

CONTACT MJA TODAY

MJA is committed to ensuring that U.S. government contractors and their families receive the maximum benefits they are entitled to under law. MJA has successfully helped injured contractors just like you obtain medical benefits and financial compensation under the DBA. Our experienced attorneys can investigate your case, provide trusted advice, and help you submit a claim. Contact us today for your free consultation.

Military courts have described kidnapping as “one of the most heinous offenses known to the law”—and for good reason. Kidnapping deprives a person of their fundamental right to liberty and freedom of movement and usually involves force, violence, or other forms of coercion. Kidnapping often occurs within dating or romantic relationships as part of intimate partner violence, and perhaps nothing is more terrifying that stranger kidnappings of minors.

Given the seriousness of this offense, a service member suspected of kidnapping needs an experienced law firm in their corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCM. When your military career, future, and freedom are on the line, don’t go it alone. Contact one of our military defense lawyers today for a free consultation.

What is Kidnapping under Article 125, UCMJ?

To be guilty of violating Article 125, UCMJ, the Government must prove three elements:

1. That the accused seized, confined, inveigled, decoyed, or carried away a certain person;

2. That the accused then held such person against that person’s will;

3. That the accused did so wrongfully.

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

First, in order to be a violation of Article 125, the government must prove that an accused seized, confined, inveigled, decoyed, or carried away a certain person. “Inveigle” is an older true, not often used anymore, which means to “lure, lead astray, or entice by false representations or other deceitful means. For example, a person who entices another to ride in a car with a false promise to take the person to a certain destination has inveigled the passenger into the car.” To “decoy” simply means to entice or lure a person in through some fraud, trick, or temptation.

Next, the government has to prove that the person kidnapped was actually held or detained in some way. This holding “must be more than a momentary or incidental detention.” For example, the Manual for Courts-Martial explains that “a robber who holds the victim at gunpoint while the victim hands over a wallet, or a rapist who throws his victim to the ground, does not, by such acts, commit kidnapping. On the other hand, if, before or after such robbery or rape, the victim is involuntarily transported some substantial distance, as from a housing area to a remote area of the base or post, this may be kidnapping, in addition to robbery or rape.

Additionally, the government must show that such holding was against the person’s will which simply means that they were held “involuntarily.” For example, a person might be lured or enticed by false representations from their significant other to attend a surprise birthday party planned for them but it’s not kidnapping because, presumably, they wanted to be there. “The involuntary nature of the detention may result from force, mental or physical coercion, or from other means, including false representations.” To determine whether someone is being held voluntarily, courts will consider whether the person had the means and opportunity to leave.

Finally, in order to prove kidnapping, the government must show that the accused’s actions were wrongful (i.e. without legal justification or excuse). For example, law enforcement officers have the legal authority to seize and hold people against their will, including through the use of force, if they reasonably believed they have committed an arrestable offense.

Is Kidnapping a “Covered Offense” and Why Does it Matter?

Kidnapping is such a serious crime that it is considered a “covered offense” under the UCMJ and is therefore handled 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 kidnapping need to have the very best legal defense representation.

What are the Defenses to Kidnapping?

Any defense under Article 125 is highly fact specific. A kidnapping charge may be defeated if the defense can show that the accused had a legal right to detain the person or if the alleged victim was not being held against their will. Additionally, because kidnapping is a general intent crime, an accused can raise a mistake of fact defense if he or she honestly and reasonably believed the alleged victim acted voluntarily in going with or staying with him. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.

What is the Punishment for Kidnapping?

The maximum punishment for violating Article 125 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole. Kidnapping is considered a Category 3 offense under the Manual for Courts-Martial’s new sentencing guidelines and therefore requires a sentence of 30-120 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.

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.

There are all types of charges under the Uniform Code of Military Justice (UCMJ) and therefore all types of potential defenses. Whether a defense applies depends on the specific facts of the case, the offenses alleged, and the law. Here we discuss some of the most common court-martial defenses and when they might apply.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you are facing court-martial, you need an experienced law firm that will fight for you. Contact one of our military defense lawyers today for a free consultation.

COMMON DEFENSES

Rule for Court-Martial (R.C.M.) 916 describes a “defense” as an explanation for conduct which the accused engaged in but denies criminal responsibility for that conduct. R.C.M. 916 lists the following defenses:

Justification. Not every act resulting in an injury to another is criminal. A death, injury, or other act done in the proper performance of a legal duty is justified and not unlawful. For example, the use of force by a law enforcement officer in the line of duty, or the killing of an enemy combatant in battle, are justified acts. Act act performed pursuant to a lawful order is also considered justified.

Obedience to orders. This defense only applies to lawful orders, not war crimes. Obedience to orders is not a defense if the accused “knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”

Self-defense. Every person has the inherent right to protect themselves against death or serious injury. Self-defense applies in cases of homicide or assaults/battery involving deadly force if the accused either: (1) reasonably believed that death or grievous bodily harm was about to be inflicted wrongfully on him; and (2) believed that the force he used was necessary for protection against death or grievous bodily harm.

R.C.M. 916(e) explains that the “first element of self-defense is objective. Thus, the accused’s apprehension of death or grievous bodily harm must have been one which a reasonable, prudent person would have held under the circumstances. Because this test is objective, such matters as intoxication or emotional instability of the accused are irrelevant.”

In contrast, “the test for the second element is entirely subjective. The accused is not objectively limited to the use of reasonable force. Accordingly, such matters as the accused’s emotional control, education, and intelligence are relevant in determining the accused’s actual belief as to the force necessary to repel the attack.”

An accused who is the aggressor, engaged in mutual combat, or provoked the attack can lose the right to self-defense unless the accused had withdrawn in good faith after the aggression and before the offense occurred.

Defense of another. The principles of self-defense also apply to the defense of another. When protecting another, the accused may not, however, use more force than the person defended was lawfully entitled to use under the circumstances. For example, a service member cannot use deadly force to protect another person unless that person would have been entitled to use deadly force on their own behalf.

Accident. This defense of “accident” applies when a death, injury, or other event “occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable.” A death or injury that occurs unintentionally while engaged in an unlawful act or a lawful act in an unlawful manner (e.g. speeding – driving is a lawful act but speeding is unlawful) would not trigger the defense of “accident”.

Entrapment. When the suggestion to commit a criminal offense comes from a Government agent and the accused had no predisposition to commit the offense, the defense of “entrapment” applies. “The fact that persons acting for the Government merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials.”

Coercion or duress. Except for the crime of murder, it is a defense to any crime “that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act.” If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense does not apply.

Inability. If an accused refuses or fails to perform a duty that he was, through no fault of the accused, not physically or financially able to perform the duty, then the defense of “inability” applies. An objective test applies to determine whether an accused was truly unable to perform the duty he was ordered to do. There is no defense of inability if the accused is physically or financially unable to perform the duty as a result of his own fault or design. For example, if the accused is ordered to get a haircut but spends the money on other nonessential items, his inability to pay for the haircut would not be a defense.

Ignorance or mistake of fact. Mistake of fact is one of the most important defenses available to service members, particularly in sexual assault case. It is a defense if the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. For example, in a sexual assault case, it is a defense if an accused reasonably believed that the other person consented to the sexual activity. This defense does not apply to certain offenses involving children.

Lack of mental responsibility. An accused may raise the defense of lack of mental responsibility, either total or partial, if at the time of the offense the accused was “unable to appreciate the nature and quality or the wrongfulness of his or her acts” as a result of a severe mental disease or defect. This is an extremely difficult defense to prove and requires expert testimony as to the accused’s mental condition.

OTHER DEFENSES NOT LISTED IN R.C.M. 916

Defense of property. A servicemember has a legal right to eject a trespasser from his military bedroom and to protect his personal property from imminent danger of theft. This right is limited, however, and requires that only reasonable force be used. A service member does not have the right to use deadly force–or any force not reasonably necessary-to protect their property.

Double jeopardy. This is legal and constitutional prohibition and not really a defense raised at trial on the merits. Double jeopardy prohibits the federal government from trying a person for the same crime twice. Double jeopardy does not apply when prosecutions are brought by separate sovereigns (e.g. state and military) and does not apply to nonjudicial punishments under Article 15, UCMJ.

Innocent ingestion. In a case involving drug use, an accused may present evidence that he somehow unknowingly and innocently ingested a controlled substance. While the prosecution can rely on a permissive inference of wrongfulness, the government must disprove innocent ingestion if evidence of such is raised at trial.

Innocent / inadvertent possession. In a case involving drug possession charges, the defense of innocent possession arises when there is evidence that drugs were “planted” of left in the accused’s possession without his knowledge of the drug.

Necessity. Necessity is a “choice of evils” defense based on the specific situation. The defense of necessity applies when an accused believes that his actions were necessary under the circumstances. To apply, this belief must be reasonable and there must have been no alternative that would have caused lesser harm.

NOT DEFENSES GENERALLY

Ignorance or mistake of law. You’re probably heard it said that ignorance of the law is no excuse. And it’s true. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense. For example, ignorance that it is a crime to possess marijuana is not a defense to wrongful possession of marijuana.

Ignorance or mistake of law could be a defense in some limited circumstances. For example, a mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency. In contrast, reliance on the advice of an attorney that a certain course of conduct is legal is not a defense.

Voluntary Intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence that an accused was voluntarily intoxicated may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense.

For example, evidence of intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offense. Although voluntary intoxication is not a defense, evidence of voluntary intoxication may be admitted as evidence in extenuation to explain what happened.

Impossibility. Factual impossibility is not a defense to the charge of attempt (Article 80) and conspiracy (Article 82). For example, if a person points a gun at someone and pulls the trigger without legal justification of excuse that person is guilty of attempted murder even if, unknown to the person, the gun was defective and would not fire.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you are represented by an experienced military attorney.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ and stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

The post Do I Have a Defense? Common UCMJ Defenses appeared first on Military Justice Attorneys.

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.