Blogs from 2022

It was an exciting, fast-paced, and ground-breaking year for MJA filled with battles won, grateful clients, and expansion into new and existing practice areas.

In 2022, MJA fought victoriously for clients at courts-martial, administrative separation hearings, and military correction boards. MJA also led the fight against the military’s unlawful COVID-19 vaccine mandates (which have now been rescinded), defended service members in civil actions whose statutory rights were violated, and expanded our practice to include parole and clemency hearings—all with spectacular results.

It was also a year that MJA welcomed a new team member to the firm, retired Marine Lieutenant Colonel Chip Hodge, and saw the Camp Lejeune Justice Act become law–creating, for the first time, a federal cause for those injured by contaminated water to pursue claims for damages. Through it all, MJA has worked diligently to provide the highest quality representation to our clients and to fulfill our mission to Defend Those Who Defend Us.

COURTS-MARTIAL

MJA’s court-martial practice saw unprecedented success in 2022, resulting in full acquittals at trial, withdrawal and dismissal of charges, the release of service members from unlawful pretrial confinement and restriction, parole for a post-trial veteran, and even dismissal with prejudice of charges at a general court-martial. 

One memorable case in 2022 involved a young Master-at-Arms Third Class (E-4) in the United States Navy who refused to take the “deal” offered by the Government and instead fought for his innocence at court-martial. After being charged with dereliction of duty for allegedly unholstering his firearm and pointing it at another Master-at-Arms, the Sailor retained MJA to defend him at court-martial where he faced the possibility of a punitive discharge, confinement, and reduction in rank, if convicted. At trial, MJA created reasonable doubt on whether the Sailor was acting in self-defense by unholstering his firearm. After hearing all the evidence, the jury deliberated for less than an hour before returning a verdict of “NOT GUILTY.”

MJA also expanded its practice in 2022 to include representation before the Department of Defense’s Clemency and Parole Boards.

MJA represented at the Naval Clemency and Parole Board a Marine convicted at general court-martial of violating Articles 92, 114, and 119, UCMJ, and sentenced to 69 months of confinement. While serving confinement, the Marine petitioned for and was denied parole. The Marine retained MJA to fight for his release. MJA prepared and submitted to the NC&PB an extensive petition showing that the Marine met the criteria for parole and appeared telephonically at the board hearing to advocate on his Marine. The NC&PB agreed with MJA and approved the Marine’s request for parole!

CAMP LEJEUNE JUSTICE ACT

One of the most ground-breaking legal developments in 2022 was the passage of the Camp Lejeune Justice Act.

For over 30 years, Marines, their loved ones, and civilian contractors stationed and/or working at MCB 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 became involved in this litigation and is proud to represent Marines and their families who were harmed by the contaminated drinking water at Camp Lejeune.

(For more information about eligibility for a claim under the Camp Lejeune Justice Act, contact our Marine Corps veteran attorneys for a free consultation).

COVID-19 VACCINE MANDATE

Christmas came early in 2022 with Congress deciding to rescind the COVID-19 vaccine mandate.

On December 23, 2022, President Biden signed the National Defense Authorization Act (NDAA) for Fiscal Year 2023 (FY23) into law. Section 525 of the FY23 NDAA requires the Secretary of Defense, within 30 days of the law being passed, to rescind the mandate that members of the U.S. Armed Forces be vaccinated against COVID-19.

Throughout 2022, MJA worked tirelessly to defend service members whose careers were threatened by the unjust vaccine mandate. MJA successfully helped a Midshipman receive a religious accommodation, saw clients receive fully honorable discharges (when most service members did not), and even got a Marine retained on active duty after refusing the COVID-19 vaccine.

In one of the first cases of its type, MJA represented a Sergeant (E-5) in the Marine Corps who was taken to an administrative separation board for allegedly violating Article 92, UCMJ, by not receiving a COVID-19 vaccine. During the hearing, MJA admitted extensive evidence showing that it was impossible for the Marine to comply with the COVID-19 vaccine order because the only two FDA approved vaccines—COMIRNATY AND SPIKEVAX—are not available to servicemembers. Based on this evidence, the Board determined there was “no basis” for misconduct and retained the Marine on active duty.

ADMINISTRATIVE ACTIONS

MJA also successfully represented service members under investigation, facing administrative separation, or who received administrative reprimands for allegations of misconduct or substandard performance of duty.

MJA fought for service members across the military branches, with allegations ranging from drug abuse to sexual assault, with spectacular results:

• In the Marine Corps , MJA represented a Private First Class (E-2) alleged to have sexually assaulted a fellow Marine in her barracks room. Upon being notified by his command that he was under investigation by NCIS for sexual assault, the PFC immediately retained MJA. MJA worked with the Marine to preserve critical evidence to the case and defended him at an administrative separation board. After hearing the evidence presented by MJA, the board unsubstantiated the allegations, allowing the PFC to finish his enlistment under Honorable conditions.
• In the Navy, MJA  defended a  Hospitalman (E-3) accused of two separate counts of sexual assault. MJA, along with the local DSO attorney, aggressively challenged the false narrative being pushed by the alleged victims and the government resulting in a finding of no basis for either of the allegations. The positive outcome allows the Hospitalman to continue his advancement in the Navy.
• In the Army, a Specialist (E-4) in the Army Reserve was notified of involuntary administrative separation for Misconduct – Commission of a Serious Offense, after being arrested for assault and battery with a domestic partner. MJA submitted extensive written matters to the command showing the Soldier was actually the victim of the assault and that his charges were adjudicated and dismissed in civilian court. Based on this evidence, the separation authority approved a conditional waiver (suspended), terminating the separation action and allowing the Specialist to stay in the U.S. Army Reserve.
• In the Coast Guard, allegations of alcohol and drug abuse under Article 112a of the UCMJ led to an administrative hearing for a First Class Petty Officer (E-6). MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the servicemember regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard.
• In the Air Force, a Master Sergeant (E-7) was investigated for 15 months by the Air Force Office of Special Investigations (OSI), Family Advocacy Program (FAP), and Child Welfare Services (CWS) for false allegations of sexually assaulting a minor. After a week-long administrative discharge board with eight Government witnesses, the board members found “no basis” for the alleged misconduct and retained the Master Sergeant on active duty.

In addition to separation boards, MJA successfully helped service members respond to investigations, rebut administrative reprimands, and achieve the local filing of GOMORs.

MILITARY CORRECTION BOARDS

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 personnel file.

In one titling appeal (which are notoriously difficult), MJA represented a Chief Petty Officer in the United States Navy at the Board for Correction of Naval Records (BCNR). The Chief was titled and indexed by the Naval Criminal Investigative Service (NCIS) during an investigation for a violation of Article 120, UCMJ. Despite substantial and overwhelming evidence showing that the Sailor did not commit the offense, NCIS refused to remove the titling determination. MJA appealed the decision to the BCNR, which determined that credible information did not exist to title the Sailor and that the titling was a “significant injustice.” The BCNR granted the Sailor full relief and recommended that NCIS expunge his name as a titled and indexed subject from the NCIC and DCII criminal history databases.

Our practice in front of military correction boards in 2022 also highlighted the value of having an experienced attorney. Veterans often try to achieve a discharge upgrade on their own but do not understand the standard of review or evidence required to be successful. It is not uncommon for these service members to be denied relief by the boards and reach out to MJA for help.

In one case, an Army Private (E-1) was involuntarily separated with a Other Than Honorable (OTH) discharge after receiving a Summary Court-Martial and Article 15 punishments for violating Articles 86, 87, 90, and 91, UCMJ. In 2008, the veteran submitted a petition to the Army Discharge Review Board (ADRB) requesting a discharge upgrade but was denied relief. The veteran retained MJA to help with the appeal. MJA submitted extensive evidence to the ADRB showing that the Soldier suffered from debilitating medical issues which adversely impacted his ability to perform his military duties. Based on the evidence presented, the ADRB determined that the Soldier’s discharge was inequitable and upgraded the Soldier to a General (Under Honorable Conditions) characterization of service. 

SERVICE MEMBERS’ CIVIL RELIEF ACT (SCRA)

In our civil litigation practice, MJA successfully fought for service members whose due process rights were violated.

In one case, a Staff Sergeant (E-5) in the Air Force terminated her residential lease after receiving orders for deployment. While deployed, the Staff Sergeant was unlawfully assessed a debt related to her housing lease which got referred to collection. The Staff Sergeant retained MJA to assert her rights under the SCRA and seek damages.MJA gathered evidence showing that the Staff Sergeant should not have been assessed a debt after properly terminating her lease, issued a demand letter to her housing provider, and coordinated with the debt collection agency to stop collection efforts. These efforts resulted in the complete elimination of the service member’s debt, termination of debt collection efforts, and significant compensation for her damages. 

WRAP UP

MJA is thankful for all the clients we were able to help in 2022 and look forward to fighting for more service members in 2023. If you or a loved one need an experienced military attorney in your corner, contact us today for a free consultation.

The post Looking Back on 2022: MJA’s Year in Review appeared first on Military Justice Attorneys.

Article 138, UCMJ, allows service members who have been wronged by their commanding officer to petition a superior commissioned officer for relief. When used correctly, Article 138 complaints are a powerful tool to stop abusive commanders from unlawfully punishing or otherwise adversely impacting a service members’ rights. 

Military Justice Attorneys has decades of experience representing service members and understands how to effectively lodge an Article 138 complaint. Contact one of our military defense lawyers today to learn more.

ARTICLE 138, UCMJ

Article 138 of the UCMJ, Complaints of wrongs, provides a means of redress to service members who believe they have been wronged by their commanding officer. Article 138, UCMJ, states:

“Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.”

STATUTORY RIGHT TO SUBMIT A COMPLAINT

Service members have a statutory right to submit a complaint under Article 138, UCMJ. As such, commanders are legally prohibited from restricting the submission of such complaints or retaliating against a service member who submits a complaint.

While the right to submit an Article 138 complaint is created by law, each branch has specific guidance establishing the policies and procedures to submit and dispose of complaints:

• Air Force (AFI 51-505)
• Army (AR 27-10)
• Coast Guard (COMDTINST M5810.1H)
• Marine Corps (JAGINST 5800.7F)
• Navy (NAVREGS Article 1150)

*This article will primarily discuss Article 138 complaints in the Army. Service members considering filing an Article 138 complaint should speak to one of our Military Justice Attorneys for specific guidance about their case.

LIMITATIONS ON ARTICLE 138 COMPLAINTS

Not just anyone can bring a complaint pursuant to Article 138, UCMJ. A complaint of wrongs under Article 138 can only be brought by members of the Armed Forces against their commanding officer. The commanding officer must have been in the service member’s chain of command at the time of the alleged wrong and was authorized to impose nonjudicial punishment (also known as Article 15 punishment and Captain’s Mast) on the service member.

Additionally, not every perceived injustice can form the basis of an Article 138 Complaint. In order to qualify under Article 138, UCMJ, the service member must show they were wronged by their commanding officer. Army regulations define a “wrong” as a “discretionary act or omission by a commanding officer, under color of Federal military authority, that adversely affects the complainant personally and that is:

1. In violation of law or regulation;
2. Beyond the legitimate authority of that commanding officer;
3. Arbitrary, capricious, or an abuse of discretion, or
4.  Materially unfair.”

Generally, Article 138 complaints must be brought within 90 days of discovering the wrong.

PREREQUISITES FOR FILING AN ARTICLE 138 COMPLAINT

Before filing an Article 138 complaint, a service member must first notify their commanding officer of the wrong and ask for relief. This initial request for redress must—

1. Be in writing and signed by the complainant;
2. Clearly identify the relationship between the complainant and the respondent (commanding officer);
3. Clearly identify the date and nature of the alleged wrong;
4. Clearly identify the specific redress desired; and
5. Be submitted through command channels to the respondent commanding officer.

See AR 27-10, paragraph 19-6.

In the Army, Commanders in the Regular Army must respond to an initial request for redress within 15 days after receiving the request. Reserve Commanders must respond within 60 days of receipt. The Commander’s response must “specifically address what redress the commander is granting or otherwise state why redress is denied.” A commanding officer’s failure to timely respond can be treated as a denial.

ARTICLE 138 COMPLAINT REQUIREMENTS

 If an initial request for redress is unsuccessful, a service member may submit an Article 138 complaint to the General Court-Martial Convening Authority (GCMCA) who had jurisdiction over them at the time of the alleged wrong. Under Army Regulations, an Article 138 complaint must:

1. Be in writing and signed by the complainant;
2. Be addressed to the GCMCA with jurisdiction over the respondent at the time of the alleged wrong;
3. Clearly identify the complainant’s current military organization and address;
4. Clearly identify the complainant’s military organization at the time of the wrong;
5. Clearly identify the commanding officer who the Soldier believes committed the wrong;
6. Indicate the date a written initial request for redress was submitted to that commanding officer, and the date of the respondent commanding officer’s response or lack thereof;
7. Specifically state that it is a complaint submitted pursuant to Article 138 and any applicable regulation;
8. Clearly and concisely describe the specific wrong or wrongs complained of. When not readily apparent, state the reason the complainant considers it a wrong;
9. State the specific redress the complainant seeks. Unless it is readily apparent, state the reason the complainant considers the redress appropriate; and
10. Have attached to it— (a) The complainant’s initial request for redress and the commanding officer’s response, if any; and (b) Any supporting information or documents the complainant desires to be considered.

Article 138 complaints may be submitted to any superior commissioned officer.

TAKING ACTION ON THE COMPLAINT

Upon receipt of an Article 138 complaint, the GCMCA will determine whether the complaint is legally and factually sufficient in accordance with service regulations. Deficient complaints are generally not acted on and are returned to the complainant with a statement explaining how the complaint is deficient and how it can be corrected. A GCMCA may, however, waive certain deficiencies in a complaint for “good cause.”

If the complaint is legally and factually sufficient, the GCMCA must determine if the alleged wrong is appropriate for review under Article 138. An alleged wrong will not be considered when “other adequate processes exist for addressing the wrong alleged in the complaint.” Examples of alleged wrongs that are typically not considered as appropriate for Article 138 complaints include:

1. Matters relating to courts-martial, NJP, and similar actions taken pursuant to military criminal law regulations;
2. Officer or enlisted elimination actions;
3. Whistleblower reprisal allegations reported pursuant to 10 USC 1034;
4. Withdrawals of flying status;
5. Appeals from findings of pecuniary liability;
6. Appeals from administrative reductions in enlisted grades;
7. Appeals from evaluation reports; and
8. Filing of adverse information in official personnel records;

If the GCMCA finds that a complaint is sufficient and requests redress that is appropriate under Article 138, the GCMCA is required to “examine into the complaint.” This examination must result in specific findings regarding each alleged wrong and whether the act or omission complained of (1) violated any law or regulation, (2) was beyond the commanding officer legitimate authority, (3) was arbitrary, capricious, or an abuse of discretion, or (4) is materially unfair.

The GCMCA must act personally on the Article 138 complaint and notify the service member whether redress was denied or granted.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

Article 138 complaints are a powerful tool service members can use to stop commanders from taking unlawful action against them. Military Justice Attorneys has represented service members for decades and understands how to effectively lodge an Article 138 complaint. Contact one of our military defense lawyers today to learn more.

The post Article 138 Complaints: What You Need to Know appeared first on Military Justice Attorneys.

“Barracks lawyers” on Facebook have been working overtime since the Camp Lejeune Justice Act was signed into law. 

Like the barracks lawyers you remember from active duty (salty Lance Corporal types who had been busted down multiple times and would offer “legal advice” at the smoke pit), many of the folks posting so passionately online have no legal training and have never even read the Camp Lejeune Justice Act.

MJA has devoted its entire law practice to representing active-duty service members and veterans and is committed to dispelling misinformation surrounding the Camp Lejeune Justice Act. Our attorneys ALL served on active duty in the United States Marine Corps and are committed to helping Marines and their families get the recovery or treatment they deserve.

Contact us today to speak with one of our Marine veteran attorneys to see if you qualify.

WHO IS MILITARY JUSTICE ATTORNEYS (MJA)?

Military Justice Attorneys (MJA) is a veteran owned and operated law firm that focuses on representing active-duty service members and veterans in administrative, criminal, and civil matters related to their military service.

WHY IS MJA INVOLVED IN THIS LITIGATION?

At MJA, ALL our attorneys were active-duty Marines. And so were our brothers, uncles, grandfathers, and closest friends. We, too, had family members stationed at Camp Lejeune during the affected period who drank the water. To us, this is personal.

For decades, the drinking water at Camp Lejeune was contaminated by harmful chemicals. MJA understands what it means to be a Marine and will aggressively fight to get Marines and their loved ones the treatment or recovery they deserve.

WHAT IS THE CAMP LEJEUNE JUSTICE ACT OF 2022?

The Camp Lejeune Justice Act is a federal law that allows qualified individuals to sue and bring an action in federal court to recover damages from exposure to contaminated water at Camp Lejeune, North Carolina between August 1, 1953 and December 31, 1987. Qualified individuals include veterans and their families, civilian employees who worked on base, or the legal representative of such an individual.

DO I QUALIFY FOR RECOVERY UNDER THE CAMP LEJEUNE JUSTICE ACT? 

To be eligible for a claim you must have:

1. Lived or worked at Camp Lejeune or MCAS New River between August 1, 1953 and December 31, 1987;
2. Lived or worked there at least thirty (30) cumulative days during that period; and
3. Have been diagnosed with or experienced a qualifying medical condition.

WHAT MEDICAL CONDITIONS QUALIFY UNDER THE ACT?

The Camp Lejeune Justice Act does not specify which medical conditions will qualify for recovery. However, the VA had identified a number of “presumptive” conditions known to be related to the toxic water at Camp Lejeune. These are:

• Adult leukemia
• Aplastic anemia and other myelodysplastic syndromes
• Bladder cancer
• Kidney cancer
• Liver cancer
• Multiple myeloma (cancer in the white blood cells / plasma cells)
• Non-Hodgkin’s lymphoma
• Parkinson’s disease

The VA also identified a larger list of conditions which may receive coverage. This list includes, but is not limited to:

• Bladder cancer
• Breast cancer
• Esophageal cancer
• Female infertility
• Hepatic steatosis (fatty liver disease)
• Kidney cancer
• Leukemia
• Lung cancer
• Miscarriage
• Multiple myeloma (cancer in the white blood cells / plasma cells)
• Myelodysplastic syndromes
• Neurobehavioral effects
• Non-Hodgkin’s lymphoma
• Renal toxicity
• Scleroderma (systemic sclerosis)

Other cancers and severe medical conditions not currently identified by the VA could still form the basis for a claim. Under the Camp Lejeune Justice Act, claimants are required to prove the relationship between exposure to the water at Camp Lejeune and the harm claimed. In other words, the claimant must prove that exposure to the toxic chemicals caused the health condition. This is known a “specific causation.”

IS THIS A SCAM?

No, it’s not a scam. The Camp Lejeune Justice Act is a real law that waives sovereign immunity (legal doctrine that says you can’t sue the government) and creates a federal cause of action to allow qualified individuals to file a claim and ultimately a lawsuit in the United States District Court for the Eastern District of North Carolina.

CAN’T I JUST FILE WITH THE VA TO GET THE SAME BENEFITS?

No, the Camp Lejeune Justice Act is not about VA benefits. Those harmed by contaminated water at Camp Lejeune have been able to apply for VA healthcare benefits since 2012.

The Camp Lejeune Justice Act goes beyond VA benefits and creates a federal cause of action to allow injured parties to bring a claim and ultimately a federal lawsuit for monetary damages in the United States District Court for the Eastern District of North Carolina.

MJA encourages anyone who believes they may be injured to file a claim with the VA for benefits. However, please understand that the Camp Lejeune Justice Act creates a separate avenue for relief by allowing injured parties to bring an action in federal court. This is historic!

HAS THERE BEEN A CAMP LEJEUNE JUSTICE ACT SETTLEMENT?

No, there has not been any large-scale settlement agreement to date. Individuals impacted by contaminated water must bring a federal claim and/or lawsuit where they prove causation of their injuries and damages.

WHY WOULD I HIRE AN ATTORNEY? CAN’T I JUST FILE THROUGH THE VA OR DAV?

Veteran services organizations are a great resource for those who simply wish to apply for VA healthcare benefits. That is not, however, the purpose of the Camp Lejeune Justice Act.

Attorneys in this litigation will be responsible for investigating claims, obtaining military and medical records, identifying other supporting evidence, engaging medical and scientific experts to evaluate potential claims and prove causation, calculating individual damages, filing tort claims, and ultimately filing and trying civil lawsuits in federal court. Attorneys can also look at your individual case to determine what, if any, impact a recovery could have on other disability awards, payments, or benefits.

MJA is not aware of any veteran service organization that will be filing federal lawsuits for damages under the Camp Lejeune Justice Act of 2022.

CONTACT US TODAY

MJA has devoted its entire law practice to representing active-duty service members and veterans and will aggressively fight for Marines and their families who were harmed by contaminated water at Camp Lejeune. Contact us today to speak with one of our Marine veteran attorneys to see if you qualify.

The post Camp Lejeune Justice Act FAQs: Debunking the Barracks Lawyers appeared first on Military Justice Attorneys.

So, you stuck to your guns and refused to get the jab? When everyone else caved to pressure from peers and their command, you stood strong and refused to compromise your convictions. And the military rewarded your courage by discharging you from the service for misconduct and, most likely, with a less than fully honorable discharge. What now?

Fortunately, not all discharge decisions are final. Each service branch has a Discharge Review Board (DRB) and Board for Correction of Military Records (BCMR) established to correct errors and remove injustices from the official military records of service members. These boards can upgrade and correct a veteran’s characterization of service, reenlistment code, and narrative reason for separation, among other things.

MJA has successfully helped veterans upgrade their discharge characterizations of service and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

UNJUST SEPARATIONS

Thousands of service men and women across the military branches have been administratively discharged for refusing to take the COVID-19 vaccine. Many of these veterans had sincerely held religious beliefs against the vaccine and submitted religious accommodation requests but were discharged before federal courts stepped in to protect them against separation. Those veterans were unjustly separated in violation of their due process and constitutional rights. In order to restore those rights, veterans must seek relief from federal court or one of the military’s administrative review boards.  

DISCHARGE REVIEW BOARDS

For veterans simply seeking to upgrade their characterization of service or change the reason they were discharge, the discharge review boards provide a great option.

Pursuant to federal law, each military branch maintains a Discharge Review Board (DRB) which meets regularly to review submissions and hear oral arguments in favor of applicants. Veterans seeking a discharge upgrade may, within 15 years from their military discharge, petition one of the following DRBs:

• Air Force Discharge Review Board (AFDRB)
• Army Discharge Review Board (ADRB)
• Coast Guard Discharge Review Board (CGDRB)
• Naval Discharge Review Board (NDRB)

The DRBs are authorized to reconsider discharges not ordered by sentence of a general court-martial and non-medical in nature; upgrade characterizations of service; issue re-enlistment codes; and restore rank as a matter of propriety and/or equity and fairness.

One of the biggest advantages of the DRB is that an applicant has the right to request a personal appearance in front of the board. The veteran can represent himself at the personal appearance or be represented by counsel.

BOARDS FOR CORRECTION OF MILITARY RECORDS

Another option for veterans seeking relief is the Boards for Correction of Military/Naval Records. Each service branch has a Board for Correction of Military Records established to correct errors and remove injustices from the official military records of service members. Such records may include, but are not limited to, records regarding discharges, reenlistment codes, disciplinary matters, performance evaluations, selection for promotion, advancement, retirement, dates of service, disability ratings, medals, and various bonuses and benefits. The BCMRs include:

• Air Force Board for Correction of Military Records (AFBCMR)
• Army Board for Correction of Military Records (ABCMR)
• Board for Correction of Military Records of the Coast Guard (BCMR)
• Board for Correction of Naval Records (BCNR)

Current and former members of the United States military (including Reserve personnel) may apply for a correction of an error or removal of an injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, next of kin (parent, sibling, or child), or legal representative can apply for the service member. Applicants must first exhaust available administrative avenues of relief before applying to a BCMR.

DISCHARGE APPEAL REVIEW BOARD

If neither the DRB nor BCMR/BCNR provide relief, veterans may be eligible to petition the Department of Defense’s Discharge Appeal Review Board (DARB). The DARB, created in 2021, provides final review of discharge or dismissal characterization upgrade requests when petitioners have exhausted all available administrative remedies. The DARB is the highest administrative level of review for a discharge upgrade request. 

To be eligible, the service member must have been separated on or after December 20, 2019, and has exhausted all available appeals with their service DRB and BCMR/BCNR. The requirement to “exhaust all available appeals” simply means that the petitioner has already requested and been denied relief from their service DRB and BCMR/BCNR before applying to the DARB. The DARB may review both voluntary or involuntary discharges based on:

Enlisted:

• Expiration of service obligation
• Change in service obligations
• Weight control failure
• Convenience of the Government
• Disability
• Defective enlistments and induction
• Unsatisfactory reserve participation
• Secretarial plenary authority
• Entry-level conduct/performance
• Unsatisfactory performance
• Military Department reasons
• Misconduct
• Separation in lieu of court-martial
• Security
• Drug abuse rehabilitation failure
• Alcohol abuse rehabilitation failure

Officer:

• Substandard performance of duty
• Misconduct or moral or professional dereliction
• Retention not clearly consistent with national security interests;
• Sentence by court-martial
• Dropping from the rolls

If the DARB recommends that the petitioner’s characterization of service be upgraded, this recommendation is sent to the Secretary of the Military Department concerned for final action. The Secretary of the Military Department makes the final decision.

CONTACT US TODAY

Not all discharge decisions are final. MJA has successfully helped veterans upgrade their discharge characterization of service and reason for separation and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

**UPDATE – On 10 January 2023, the Secretary of Defense officially rescinded the COVID-19 vaccine for the U.S. military. Check out our January 2023 blog post to see how this affects active duty service members and former service members who were discharged for not taking the COVID-19 vaccine.

The post I was Discharged for Not Taking the COVID-19 Shot: What Now? appeared first on Military Justice Attorneys.

It’s no secret that the military has a zero-tolerance policy when it comes to drug abuse, including the use of marijuana. What service members may not know, however, is that the military prohibits the use of any cannabis or hemp-derived products, even those sold commercially. Service members who test positive for any form of tetrahydrocannabinol (THC) are subject to discipline under the UCMJ and mandatory separation processing.

If you have tested positive for THC or another drug, it is critical that you protect your rights and your military career. MJA has fought and won drug abuse cases for service members across the military branches. Contact one of our military defense lawyers today to learn more.

ARTICLE 112, UCMJ

Article 112a, UCMJ, criminalizes the use, possession, or distribution of a controlled substance. Common controlled substances include opium, heroin, cocaine, amphetamines, LSD, and marijuana, to name a few. A full list of prohibited substances can be found in the Controlled Substances Act (21 U.S.C. § 812).

However, not all products banned by the military are “controlled” substances under federal law.

The military also prohibits the wrongful use of certain natural substances (e.g. fungi), chemicals wrongfully used as inhalants, propellants, and even prescribed or over-the-counter medication if used without a prescription or with the intent to get high. This prohibition includes the use of any cannabidiol (CBD) products (e.g. edibles, oils, creams, drinks, vape cartridges, etc) which are often legal and can be purchased online or at a local gas station.

DELTA-8 THC VERSUS DELTA 9-THC

Historically, the military only tested for delta-9 THC (the controlled substance) during urinalysis testing. In 2021, the Department of Defense (DoD) expanded its urinalysis screening to also test for delta-8 THC (i.e. the commercially available type that is not a prohibited controlled substance).

Delta-8 THC is similar to delta-9 THC and exists naturally in cannabis plants at low levels. Delta-8 THC is still, however, a psychoactive cannabinoid that can cause a user to experience a type of “high”. For this reason, the DoD prohibits  service members from ingesting or otherwise using any product containing delta-8 THC.

Because Delta-8 THC is not a controlled substance under federal law, service members who test positive for Delta-8 THC cannot be charged with violating Article 112a, UCMJ. Instead, service members who test positive for Delta-8 THC may only be charged under Article 92, UCMJ for violating a lawful order. Service members who unknowingly consumed a product containing delta-8 THC may be able to assert a defense of innocent ingestion.

MANDATORY “PROCESSING” FOR SEPARATION

The Department of Defense (DoD) has a zero-tolerance policy on drug abuse. This policy requires that any substantiated incident of drug abuse, including the use of delta 8-THC,  be subject to mandatory processing. Mandatory processing is not the same as mandatory separation. Whether separation will occur depends on numerous factors.

Simple cases of use or possession are generally handled administratively through nonjudicial punishment or summary court-martial. More serious cases may result in criminal charges at court-martial.

Service members with less than 6 years of military service do not rate a separation board. As a result, they can be administratively separated from the military with a general (under honorable conditions) characterization of service through simple notification procedures.

Service members with more than 6 years of military service are entitled to a separation board hearing. For them, mandatory processing can mean either a board hearing or court-martial.

MJA VICTORIES 

MJA has successfully defended service members facing investigation, court-martial, and discipline for Article 112a offenses. Examples of successful cases include: 

• A Lance Corporal (E-3) in the Marine Corps tested positive for cocaine following an all-hands urinalysis. The Marine was notified of involuntary administrative separation and convinced by his command to sign a board waiver, allowing him to receive an Other than Honorable (OTH) characterization of service. MJA was retained days before the Marine’s separation. MJA immediately withdrew the board waiver and requested an extension of time to submit matters in rebuttal. MJA then provided evidence to show that the Marine had not used cocaine and that the urinalysis result was in error. The Marine was retained on active duty and allowed to continue his military service. 
• A Petty Officer First Class (E-6) in the Navy tested positive for cocaine twice following two all-hands urinalyses. The Sailor, who had served in the Navy for almost 18 years, was notified of nonjudicial punishment (NJP) and was facing potential involuntary administrative separation from the Navy. MJA conducted an investigation to uncover evidence favorable to our case and to show that the Sailor innocently ingested cocaine by drinking coca tea from Peru. Scientific studies conclusively link consumption of coca tea with positive drug tests for cocaine. Based on the evidence submitted by MJA, the Sailor was found not guilty at NJP and remained on active duty.
• A pilot in the Air Force was notified of administrative discharge procedures for allegations of drug abuse. While pending separation, the Officer was arrested for DUI and awarded nonjudicial punishment and a letter of reprimand. MJA guided the Officer through the lengthy separation process and submitted extensive written matters in support. After much effort, the Officer was honorably discharged from the Air Force. 
• A Lance Corporal (E-3) in the Marine Corps was accused of violating Article 112a of the UCMJ. MJA helped the young Marine refuse NJP and then fight the charges at his administrative hearing where we successfully showed his vaping activity did not violate Article 112a. The administrative hearing concluded there was no misconduct on the part of the LCpl and returned him to full duty status.  
• A Hospital Corpsman Second Class (E-5) in the Navy was notified of nonjudicial punishment for allegedly violating Article 112a after testing positive for amphetamines. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription for Adderall. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career. 
• A Petty Officer First Class (E-6) in the Coast Guard was charged with allegations of alcohol and drug abuse under Article 112a of the UCMJ which led to an administrative hearing. MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the service member regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard. 
• A Corporal (E-4) in the Marine Corps was accused of multiple violations of the UCMJ to include possession of narcotics and steroids in violation of Articles 112a and 92, UCMJ. MJA worked with the Corporal to gather witness statements to show he never used drugs or possessed illegal drugs with the intent to use them. As a result of MJA’s efforts, the Corporal was found not guilty of the allegations at NJP and was allowed to finish his enlistment.
• A Petty Officer Third Class (E-4) in the Navy tested positive for THC following a random urinalysis. The Sailor was notified of NJP where, if convicted, he faced the possibility of reduction in rank, restriction, and administrative separation from the Navy. MJA provided evidence to the command showing that the Sailor had innocently ingested THC infused candy. Based on this evidence, the Commanding Officer found the Sailor not guilty at NJP and did not initiate administrative separation processing.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

A positive urinalysis for any form of THC can be enough to destroy a military career. Service members facing drug abuse allegations risk losing their career, healthcare, GI bill, and retirement benefits, if separated. Those who face court-martial risk a federal drug conviction, punitive discharge, and serious confinement time. If you are suspected of drug abuse or have been asked to take a urinalysis, it is critical that you speak with an experienced military defense attorney. Contact our military defense lawyers now to learn more.

The post I Don’t Use Marijuana But Tested Positive for THC: What Happened? appeared first on Military Justice Attorneys.

PRESS RELEASE – JULY 28, 2022

Liberty-Life Media, a pro-military media outlet, reports that MJA will represent Marine veterans and their families harmed by Camp Lejeune Water Contamination.

After years of denying justice to those harmed by the toxic water, Congress recently passed the “Camp Lejeune Justice Act of 2022” which, once signed into law, will allow those who have been injured to file lawsuits for compensation.

If you or a loved one lived or worked at Camp Lejeune or MCAS New River for at least thirty (30) days between 1 August 1953 and 31 December 1987 and have been diagnosed with or experienced a qualifying medical condition, you may be entitled to significant financial compensation.

The attorneys at MJA all served on active-duty in the United States Marine Corps who will work tirelessly to give you the best possible representation.

Contact MJA today to determine your eligibility for the lawsuit.

The post PRESS RELEASE – MJA to Represent Camp Lejeune Families in Water Contamination Claims appeared first on Military Justice Attorneys.

MARINES DEFENDING MARINES

For over 30 years, Marines, their loved ones, and civilian contractors stationed and/or working at MCB 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 of 2022 recently became law, creating a federal cause of action to allow those who suffered from water contamination to file lawsuits for compensation.

If you or a loved one lived or worked at Camp Lejeune or MCAS New River for at least thirty (30) days between 1 August 1953 and 31 December 1987 and have been diagnosed with or experienced a qualifying medical condition, you may be entitled to significant financial compensation. The attorneys at MJA are ALL former active-duty Marines who will work tirelessly to give you the best possible representation.

Contact MJA today to determine your eligibility for the lawsuit.

CAMP LEJEUNE JUSTICE ACT

The “Camp Lejeune Justice Act”, contained within the larger PACT Act (Honoring our Promise to Address Comprehensive Toxics Act), creates a federal cause of action for those injured by contaminated drinking water at Camp Lejeune, North Carolina.

The Camp Lejeune Justice Act allows any individual, veteran, or their legal representative to file a claim and bring an action against the United States for damages. The bill prohibits the Government from asserting immunity and requires the claimant to prove that contaminated water caused their injuries.

All claims for damages due to exposure to contaminated water at Camp Lejeune must be filed within 2 years after the bill becomes law.

ELIGIBILITY FOR LAWSUIT

To be eligible for a claim you must have:

1. Lived or worked at Camp Lejeune or MCAS New River between August 1953 and December 1987 (The areas affected cover all of Camp Lejeune including Camp Geiger, Camp Johnson/Montford Point, Tarawa Terrace, Holcomb Boulevard, Paradise Point, Hadnot Point, Onslow Beach, MCAS New River, Stone Bay Rifle Range, and Camp Lejeune Greater Sandy Run – See Benefit Coverage Area chart below).
2. Lived or worked there at least thirty (30) cumulative days during that period. (This includes but is not limited to Marines permanently stationed at Camp Lejeune. For example, Marines who attended Marine Combat Training (MCT) at Camp Lejeune for more than 30 days may also qualify. Those who were “exposed” during contaminated water (including in utero exposure) may also qualify);
3. Have been diagnosed with or experienced a qualifying medical condition (listed below).
4. Are NOT currently represented by an attorney.

QUALIFYING MEDICAL CONDITIONS

The VA had identified a number of presumptive conditions known to be related to the toxic water at Camp Lejeune. These are:

• Adult leukemia
• Aplastic anemia and other myelodysplastic syndromes
• Bladder cancer
• Kidney cancer
• Liver cancer
• Multiple myeloma (cancer in the white blood cells / plasma cells)
• Non-Hodgkin’s lymphoma
• Parkinson’s disease

The VA also identified a larger list of conditions which may receive coverage. This list includes, but is not limited to:

• Bladder cancer
• Breast cancer
• Esophageal cancer
• Female infertility
• Hepatic steatosis (fatty liver disease)
• Kidney cancer
• Leukemia
• Lung cancer
• Miscarriage
• Multiple myeloma (cancer in the white blood cells / plasma cells)
• Myelodysplastic syndromes
• Neurobehavioral effects
• Non-Hodgkin’s lymphoma
• Renal toxicity
• Scleroderma (systemic sclerosis)

HISTORY OF CONTAMINATED DRINKING WATER AT CAMP LEJEUNE

In the 1980s, dangerous contaminants were found in several wells that provided drinking water to the residents of MCB Camp Lejeune and MCAS New River, North Carolina. These contaminants, listed below, leaked into the water from on-base storage tanks and industrial activities, and an off-base dry cleaner. The primary contaminants identified include:

• Benzene,
• Tetrachloroethylene (PCE),
• Trichloroethylene (TCE),
• Trans-1,2-dichloroethylene (DCE), and
• Vinyl chloride. 

Benzene found in groundwater often indicates contamination from refined petroleum products (e.g., gasoline, jet fuel, diesel fuel). PCE, another common groundwater contaminant, is a chemical widely used for dry cleaning fabrics and for metal degreasing operations. According to a Public Health Assessment conducted in 2017, “TCE and vinyl chloride were the chemicals that contributed most to the increased risk of cancer.”

Researchers identified the contaminated drinking water at Camp Lejeune in 1980 at the Hadnot Point and Tarawa Terrace water treatment plants. In February 1985, the base shut down the Tarawa Terrace’s two most contaminated wells and closed the Tarawa Terrace water treatment plant altogether in March 1987.

It is estimated that nearly 1 million people were exposed to the toxic drinking water at Camp Lejeune from 1953-1987. This includes children living on-base, civilian employees who worked on-base, Marines permanently stationed there or in training, and dependent spouses. The contaminated drinking water could have adversely affected pregnant women and their babies, in particular, as “women in the first trimester of pregnancy are one of the most sensitive populations for exposure to TCE.”

MARINES DEFENDING MARINES

This is not simply ANOTHER CASE for MJA. As with any mass tort litigation, if you have spent even a few minutes on Facebook or Google you have already been bombarded with advertisements from big name plaintiffs’ firms who specialize in mass tort litigation. Most of these attorneys never served in the military and certainly don’t know what it means to be a Marine. To them, this is just another case. No different than a hip implant litigation or hernia mesh lawsuit.

But to us, it’s different.

At MJA, ALL our attorneys were active-duty Marines. And so were our brothers, fathers, uncles, grandfathers, and closest friends. We understand what service and sacrifice mean and live by the motto: Semper Fidelis. It is for that reason that our entire law practice centers on representing active-duty service members and veterans. This is at the heart of who we are and what we do. We have served military service members before this litigation and will serve them after. As Marines ourselves, MJA will work tirelessly on your behalf.

CONTACT US TODAY

If you or a loved one lived or worked at Camp Lejeune or MCAS New River between 1 August 1953 and 31 December 1987 and have been diagnosed with or experienced a qualifying medical condition, contact us today to determine if you are for a lawsuit.

The post Marines Defending Marines – Camp Lejeune Water Contamination Lawsuit appeared first on Military Justice Attorneys.

July 1, 2022 – Press Release

MJA is pleased to announce that Clare C. (Chip) Hodge, III has joined our military criminal defense team. Chip is an experienced trial attorney who retired from active duty in the U.S. Marine Corps in 2022 as a Lieutenant Colonel, having served as a judge advocate in numerous key billets. He last served as the Deputy Staff Judge Advocate for Marine Forces Reserve and Marine Forces South, an organization of approximately 100,000 Marines serving in an active or reserve status.

“We are thrilled that Chip, an accomplished and seasoned litigator, has chosen to join us,” said Gerald Healy, founder and managing partner of MJA. “Chip will be an enormous asset to the firm, our worldwide criminal defense practice, and to the service members he represents.”  

Before joining MJA, Chip was recognized for his exemplary service in trial advocacy and hand-selected to serve as Deputy, Military Justice Branch, Judge Advocate Division at Headquarters Marine Corps, Pentagon. Chip also served as Senior Trial Counsel and Deputy Officer-in-Charge at the Legal Services Support Section-National Capital Region and Marine Forces Reserve.

Throughout his career, Chip has litigated both felony and misdemeanor-level matters involving alleged sex offenses, aggravated assault and battery crimes, domestic violence, theft, frauds against the United States, false official statements, drunken and reckless driving, dereliction of duty, adultery, fraternization, sexual harassment, and hazing, among others.

Chip also has extensive experience in civilian criminal defense and family law. He understands how military criminal matters and adverse administrative cases and even civilian criminal proceedings can negatively impact a service member’s career and post-service life. Chip knows how the military justice system operates and wholeheartedly embraces the MJA ethos of defending those who defend us, including their families.

Chip received his Juris Doctor from Georgia State University College of Law, his Master’s in Business Administration from the University of Memphis Fogelman College of Business and Economics, and his Bachelor of Arts in International Business from Rhodes College (TN). He is a member of the Georgia and South Carolina bar.

The post Retired Marine Officer and Judge Advocate, Chip Hodge, Joins MJA appeared first on Military Justice Attorneys.

On April 28, 2021, a class notice was issued that the Naval Discharge Review Board (NDRB) would automatically begin reconsidering discharge upgrade applications for Marines and Sailors who have served since October 7, 2001, and who were discharged with a less than honorable characterization of service while diagnosed with or showing symptoms attributable to post-traumatic stress disorder (“PTSD”) or related conditions. This new policy, which is the result of a class action settlement agreement, will provide many Department of the Navy veterans with a fresh opportunity to present their case to the NDRB.

MJA has successfully helped service members upgrade their discharge characterization of service. If you believe your discharge or dismissal was unjust, erroneous, or otherwise warrants an upgrade, contact us today for your free consultation.

CLASS ACTION LAWSUIT

On March 2, 2018, a class-action lawsuit was filed on behalf of thousands of Navy and Marine Corps veterans who served in Iraq and Afghanistan and were discharged under Other Than Honorable (“OTH”) or General (Under Honorable Conditions) (“GEN”) characterizations of service due to misconduct attributable to PTSD, traumatic brain injury (“TBI”), and related mental health conditions.

The lawsuit alleged that these service members were systematically denied discharge upgrades by the NDRB despite binding Department of Defense guidance that such applications receive “liberal” or “special” consideration when being reviewed.

On September 16, 2021, the Secretary of the Navy settled the lawsuit to allow former Marines and Sailors who were partially or fully denied relief between October 7, 2001 and March 1, 2012 to reapply to the NDRB for reconsideration of their case. Qualifying Department of the Navy veterans who were denied relief from March 2, 2012 until the date of the settlement would receive automatic reconsideration.

AUTOMATIC RECONSIDERATION OF 2012-2021 APPLICATIONS

The settlement requires the NDRB to automatically reconsider discharge upgrade applications which meet the following criteria:

• Applicants qualify as “Special Cases”, i.e. veterans who were discharged with less than a fully honorable conditions and have diagnoses of PTSD, TBI, or other related mental health conditions;
• Decision was issued on or after March 2, 2012, until the effective date of settlement; and
• The veteran did not receive a fully honorable discharge.

In these cases, known as “Group A Applicants”, the NDRB will automatically reconsider the veteran’s case without need for any action from the applicant. Veterans can, however, supplement their applications with additional evidence within 60 days of the notice. All “Group A” Applicants were required to receive a letter describing their rights.

REAPPLICATION RIGHTS FOR 2001-2012 APPLICANTS

Per the settlement agreement, the NRDB will also consider reconsider applications for discharge upgrade requests for Marines and Sailors who:

• Qualify as “Special Cases”;
• Decision was issued between October 7, 2001 and March 1, 2012; and
• The veteran did not receive a full upgrade to Honorable.

Applicants from both groups will have the ability to request a video-teleconference personal appearance hearing. Additional information about the settlement and applicants’ rights can be found on the NDRB’s website.

SERVICE MEMBERS MUST SHOW ERROR OR INJUSTICE

There is no guarantee that a Marine or Sailor whose case is reconsidered will receive a discharge upgrade. Importantly, veterans still bear the burden of proving that their discharge was erroneous or unjust. If the applicant cannot meet this burden, then their discharge will stay the same.

Applicants should submit relevant evidence in support of their petition to help the NDRB understand the circumstances surrounding their discharge. Such evidence may include:

• Diagnoses from a medical professional;
• Documentation recording symptoms associated with PTSD, TBI, MST, and/or other behavioral health issues;
• Letters from people who knew you before, during, or after your service that can describe any behavioral changes or symptoms related to the condition.

If possible, this evidence should explain how the veteran’s symptoms or diagnoses mitigate or outweigh the misconduct which formed the basis for separation.

CONTACT US TODAY

MJA has successfully helped service members upgrade their discharge characterization of service. If you believe your discharge or dismissal was unjust, erroneous, or warrants an upgrade, contact us today for your free consultation.

The post Class-Action Lawsuit Gives Sailors and Marines Another Shot at Discharge Upgrade appeared first on Military Justice Attorneys.