Blogs from June, 2020

Defending Service Members Charged with Malingering

“Malingering” is the criminal offense of feigning mental or physical illness, or intentionally hurting oneself, in order to avoid military duties. While this military-specific offense may sound archaic, malingering is still prosecuted in the military and carries serious punishment.

MJA has defended service members charged with the most serious offenses under the UCMJ, including malingering. Contact our military defense lawyers now to learn more.

ELEMENTS

A violation of Article 83, UCMJ (malingering), generally requires three elements:

1. That the accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service;
2. That the accused feigned illness, physical disablement, mental lapse, mental derangement, or intentionally inflicted injury upon himself or herself; and
3. That the accused’s purpose or intent in doing so was to avoid the work, duty, or service.

If the offense was committed in time of war or in a hostile fire pay zone, an additional element is added to the offense.

MALINGERING EXPLAINED

Malingering is best described as any act designed to avoid performance of any work, duty, or service normally expected of a service member. This can be an attempt to avoid all duty or only a particular job.

According to the Manual for Courts-Martial, the “nature or permanency of a self-inflicted injury is not material on the question of guilt. . . . Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose.”

HOW INJURY IS INFLICTED

An injury may be inflicted by violent or nonviolent means, and “may be accomplished by any act or omission which produces, prolongs, or aggravates any sickness or disability.” For example, voluntary starvation which weakens a service member is considered a self-inflicted injury and act of malingering if done for the purpose of avoiding work, duty, or military service. Bona fide suicide attempts should not be charged as the criminal offense of malingering.

MAXIMUM PUNISHMENT

The maximum punishment for malingering varies depending on whether the service member is simply feigning illness or intentionally hurt themselves. For example, the act of feigning illness, physical disablement, mental lapse, or mental derangement carries the risk of a dishonorable discharge, total forfeitures, and confinement for a year. In contract, intentional self-inflicted injury carries up to 5 years confinement.

These punishments increase to 5 years and 10 years confinement, respectively, if the feigned illness or self-inflicted injury occurs in a hostile fire pay zone or time of war.

PROTECT YOUR FREEDOM AND MILITARY CAREER 

MJA has defended service members facing investigation, court-martial, and discipline for some of the most serious offense under the UCMJ, including malingering. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 83, UCMJ – Malingering appeared first on Military Justice Attorneys.

MJA is proud to announce a recent victory on behalf of our client, a Lieutenant Commander in the United States Navy. Following completion of a command investigation, our client was offered nonjudicial punishment (NJP) for alleged violations of Article 92 (dereliction of duty) and Article 133 (conduct unbecoming of an officer), UCMJ. After refusing NJP, the officer was notified that a report of misconduct would be sent to Navy Personnel Command (PERS) requesting the officer’s promotion delay or removal and recommending that the officer be required to show cause for retention in the naval service.

MJA was retained to rebut the allegations and conducted an independent investigation which uncovered exculpatory evidence previously unknown to the command. MJA then submitted extensive written matters to the command which included statements from multiple witnesses not interviewed during the command investigation.  Based on this evidence, the Commanding Officer withdrew the NJP charges and routed a report of no misconduct to PERS to remove the flag from the officer’s record. The Lieutenant Commander will continue on active duty and remain eligible for promotion. Congratulations to this well-deserving officer!

Submitting Rebuttal Matters

Service regulations generally provide service members the opportunity to submit a written rebuttal or response to potential adverse counselings, substantiated findings in an investigation, or initiation of separation proceedings. This due process protection gives service members the opportunity to correct false or misleading allegations and, if done appropriately, can mean the difference between formal adverse proceedings and the charges being dropped.

Responding to an allegation is not, however, without risk. Any statement made by a service member (oral or written) may later be admissible against them at a court-martial or hearing and could even serve as the basis for additional charges. For this reason, it is critical that a service member consult with a qualified attorney before submitting a response to any adverse action.

An attorney can not only help draft an appropriate response, but can also assist in obtaining evidence that might otherwise be unavailable to the service member.  Service members suspected of misconduct may also be limited in the nature and scope of communications they can have with percipient witnesses, making an independent investigation almost impossible without the help of an attorney. For example, military protective orders or “no contact” orders may prohibit them from contacting witnesses with evidence relevant to their rebuttal. Doing so without an attorney could result in charges for orders violation, witness tampering, or obstruction of justice.

MJA Can Help

MJA is experienced in representing officers across the service branches who are under investigation or facing courts-martial, boards of inquiry / show cause proceedings, and adverse administrative actions. Please contact us today for your free consultation.

The post Naval Officer Not Required to Show Cause for Retention appeared first on Military Justice Attorneys.