Blogs from 2023

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

In 2023, MJA fought victoriously for clients at courts-martial, administrative separation boards, correction boards, and confinement review hearings. MJA also continued to fight for service members unfairly discharged under the military’s COVID-19 vaccine mandate and defended service members facing a host of adverse administrative actions—with specular results.

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.

COURTS-MARTIAL DEFENSE

MJA’s court-martial practice saw continued success in 2023, resulting in full acquittals at trial, withdrawal of charges from numerous courts-martial, the release of service members from unlawful pretrial confinement, and even charges being dismissed with prejudice.

One memorable case involved a Corporal in the United States Marine Corps who was falsely accused at court-martial of sexually assaulting another service member’s spouse. Working closely with detailed defense counsel, MJA successfully litigated multiple pretrial motions critical to the defense case and obtained DNA testing to corroborate the Marine’s story. At trial, MJA and detailed counsel exposed deficiencies in the government’s evidence and the investigative bias of multiple government actors. After hearing all the evidence, the jury granted the Marine a “full acquittal” and returned a verdict of NOT GUILTY.

In another case, an Army Staff Sergeant was charged at court-martial with larceny and solicitation to commit larceny of government property in violation of Articles 82 and 121, UCMJ. After refusing to take a “deal” offered by the government, the SSG hired MJA to defend him at trial where he faced the possibility of confinement, a punitive discharge, and the loss of all medical benefits, if convicted. MJA worked closely with military counsel to expose weaknesses in the government’s case and demonstrated that the charges were the product of false assumptions and a defective investigation. The jury found the Soldier NOT GUILTY on all charges.

In addition to full acquittals, MJA successfully moved for charges to be dismissed with prejudice in one general court-martial. In that case, an Army Private First Class was charged with an alleged sexual assault. After refusing to take a “deal” offered by the Government, the Soldier retained MJA to defend him at court-martial. During trial, MJA discovered that the Government had failed to provide important evidence helpful to the client’s case and moved to dismiss the case with prejudice. MJA later learned that this was not the only violation that had occurred, and that other evidence helpful to the defense had also not been provided. After hearing all the evidence, the Court determined that the continual discovery violations prejudiced the defense and that dismissal “with prejudice” was the only just remedy.

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!

CAMP LEJEUNE JUSTICE ACT

One of the most ground-breaking legal developments in 2022 was the passage of the Camp Lejeune Justice Act. In 2023, MJA filed claims and lawsuits on behalf of eligible clients and continues to take 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.

COVID-19 VACCINE MANDATE RESCINDED

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, requiring the Secretary of Defense to rescind the mandate that members of the U.S. Armed Forces be vaccinated against COVID-19.

On 10 January 2023, the Secretary of Defense officially rescinded the vaccine mandate. Although recission of the inane mandate was the first step, thousands of service members were unjustly discharged for not taking the vaccine. Many others received adverse material in their military records, lost pay and retirement points, or experienced other adverse consequences.

Since the recission, MJA has begun working with veterans to appeal their discharges and characterizations of service. 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. 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.

ADMINISTRATIVE SEPARATION DEFENSE

MJA successfully represented numerous service members facing administrative separation in 2023 for allegations ranging from drug abuse to sexual assault.

In one notable case, a Soldier nearing his Expiration Term of Service (ETS) was notified of administrative separation for allegations of domestic violence, sexual assault, and adultery. Faced with multiple accusers and the possibility of an Other than Honorable (OTH) discharge, the Soldier retained MJA to fight the allegations. MJA zealously advocated for the Soldier both before and during the board, discovering evidence which contradicted the allegations and exposing weaknesses and bias in the government’s case. After hearing all the evidence, the members unsubstantiated the allegations of sexual assault and domestic violence and voted to RETAIN the Soldier on active duty, allowing him to reach his ETS.

In a National Guard separation action, a Captain in the Army National Guard was directed to show cause for retention at a Withdrawal of Federal Recognition (WOFR) proceeding, i.e., separation action. MJA successfully litigated allegations of assault/battery by conducting its own in-depth investigation and by preparing a sound legal defense that included presentation of key witness testimony as well as irrefutable video and documentary evidence. The Board unanimously voted to retain the officer to continue his military career.

MJA also fought to ensure Soldiers were not separated under the Army Qualitative Management Program (QMP). In one case, a Sergeant First Class was notified of an Immediate Reenlistment Prohibition (IMREPR) Code 13 based on adverse information being officially filed in his Army Military Human Resource Record (AMHRR), making him eligible for consideration by the QMP board. MJA worked with the Soldier to respond to the notification by rebutting the underlying allegations and providing evidence in extenuation and mitigation. After conducting a comprehensive review of the Soldier’s record and his written response, the QMP recommended the Soldier’s retention on active duty.

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 has helped numerous service members overcome adverse administrative actions they were facing.

In an Air Force demotion action, a Technical Sergeant (E-6) was administratively demoted to Staff Sergeant (E-5) following the Airman’s lawful refusal of non-judicial punishment. MJA petitioned the Appellate Authority for full restoration of rank and related relief. MJA presented evidence on appeal showing that the chain of command seemingly violated the Airman’s rights surrounding protected communications and abused its authority with respect to DAFI 36-2502. The Appellate Authority granted the Airman’s appeal, terminating the demotion proceeding and restoring the Airman’s rank.

In a suspected drug abuse case, a Sailor tested positive for a prescription drug following a random urinalysis. In response to the positive urinalysis, MJA provided evidence to the command showing that the Sailor had not knowingly and wrongfully used a controlled substance and that the positive urinalysis was not a drug abuse incident requiring mandatory separation processing. The Commanding Officer agreed, ruling that the incident was not drug abuse, and closed the matter without taking adverse action against the Sailor.

In another case, a Lance Corporal in the United States Marine Corps was placed on an extended legal hold beyond his End of Active Service (EAS) date pending adjudication of false allegations of domestic violence and a legally untenable initial determination of drug abuse. MJA expertly guided the client through the command’s drawn-out investigative process and legal hold. MJA zealously represented the Lance Corporal and advocated for no legal action. Ultimately, the convening authority agreed that no wrongful use occurred and there was no probable cause to prefer charges for domestic violence or assault consummated by battery.

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

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 personnel file.

In a case before the Army Discharge Review Board (ADRB), a Private was involuntarily discharged from the United States Army under Other Than Honorable Conditions for Misconduct after receiving Article 15 punishment and a summary court-martial conviction for alleged violations of Articles 86, 87, 90, and 91, UCMJ. Due to his characterization of service, the Private was unable to receive critical VA medical treatment related to service-connected injuries. The Soldier retained MJA after unsuccessfully petitioning the ADRB for a discharge upgrade on his own and being denied relief. MJA reviewed the Soldier’s military records and submitted extensive evidence and arguments to the ADRB demonstrating that the Soldier did not commit serious misconduct and should not have been discharged with an OTH. The DRB agreed and upgraded the Soldier’s characterization of service to General Under Honorable Conditions, allowing him to reapply for VA medical coverage.

In another case, the Naval Discharge Review Board (NDRB) upgraded a Sailor’s discharge to fully honorable. In that case, a Hospitalman (E-3) in the United States Navy was administratively discharged with a general (under honorable conditions) characterization of service for a condition not a disability. MJA appealed to the NDRB and provided substantial evidence that the Sailor’s substantive and procedural rights were violated during the separation process and that a general discharge was unjust under the circumstances. The NDRB agreed with MJA that the Sailor’s service met the standards of acceptable conduct and performance and upgraded the Sailor’s characterization of service to fully honorable.

Titling appeals, in particular, are extremely difficult. In one memorable case, MJA represented an Army Private First Class (E-3) at the Army Board for Correction of Military Records (ABCMR). The PFC was titled and indexed by the Army Criminal Investigation Division for assault consummated by battery after a domestic incident with her spouse. The Soldier was never taken to court-martial or nonjudicial punishment and was later honorably discharged. Despite these facts, the Soldier remained titled and later learned that she was disqualified from working in the healthcare field due to the titling action. After USACID refused to remove the titling entry, MJA appealed the decision to the ABCMR. The Board determined that the Soldier was the victim of domestic physical abuse and should not have been titled. The ABCMR granted the Soldier full relief and recommended that all Department of the Army records concerning the Soldier be corrected by removing her name from the title block of the law enforcement report.

THANK YOU!

MJA is thankful for all the clients we were able to help in 2023 and looks forward to fighting for more service members in 2024. If you or a loved one need an experienced military attorney in your corner, contact us today for a free consultation.

Guaranteed by the Fifth and Sixth Amendments to the United States Constitution, the right to counsel is arguably the most important guarantee in the Bill of Rights because it is through counsel that all other rights are protected. It is the attorney who preserves the rights of their clients, gives confidential advice, and who zealously defends their cause at trial. The greatest protection to someone suspected of misconduct is a great attorney.  

The skilled and experienced attorneys at MJA have defended service members facing investigation, court-martial, and discipline for the most serious offenses under the Uniform Code of Military Justice (UCMJ). If you or a loved one are facing court-martial or other adverse action, contact one of our military defense lawyers today for a free consultation.

Fifth Amendment Right to Counsel

The Fifth Amendment to the United States Constitution guarantees that no suspect shall be compelled in any criminal case to be a witness against himself. The United States Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to encompass two distinct rights: the right to remain silent and the right to an attorney during pretrial questioning.

Given the inherently compelling nature of a police interrogation, the law requires law enforcement officers to inform a suspect of his right to consult with an attorney and to have an attorney with him during questioning before beginning questioning.

To invoke the right to counsel, a suspect must state his desire to have an attorney present “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994). Police must terminate the interview if the suspect’s request clearly communicates his desire for counsel. However, “if the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-62.

Once a suspect has invoked his right to have counsel present during custodial interrogation, a suspect does not waive that right simply by responding to further police-initiated questioning. Rather, once a suspect has expressed his desire to deal with the police only through counsel, he cannot be further questioned by police until an attorney has been made available to him unless the suspect himself initiates further communication, exchanges, or conversations with the police.

Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” While the Fifth Amendment creates a right to counsel during pretrial questioning, the Sixth Amendment guarantees an accused the right to the effective assistance of counsel during criminal proceedings.

The Sixth Amendment not only guarantees the effective assistance of counsel at trial but also guarantees an accused the right to choose who to hire as their attorney. This is where civilian defense attorneys come in. In the military, a service member accused of misconduct has the absolute right to be defended by detailed military counsel, military counsel of choice if such counsel is reasonably available and, at his own expense, civilian counsel of his choice.

MJA often gets calls from service members who are not satisfied with their military defense and want to hire civilian counsel to represent them at their administrative separation board or court-martial. Even if military counsel provides “adequate” representation, if it is not the accused’s choice of counsel and if he is unfairly prevented from being represented by the attorney of his choice, then his Sixth Amendment right has been violated.

Notably, the Sixth Amendment right to counsel is offense-specific and only attaches once charges have been brought. In the military, the Sixth Amendment right to counsel does not attach until preferral of charges.  

Evidence Obtained in Violation of Right to Counsel Inadmissible

The Military Rules of Evidence render inadmissible any statements obtained in violation of an accused’s Fifth and Sixth Amendment rights to counsel.

M.R.E. 305(c)(2), which applies to the Fifth Amendment right to counsel, provides that “If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.”

M.R.E. 305(c)(3) applies to the Sixth Amendment right to counsel and states: “If an accused against whom charges have been preferred is interrogated on matters concerning the preferred charges by anyone acting in a law enforcement capacity, or the agent of such a person, and the accused requests counsel, or if the accused has appointed or retained counsel, any statement made in the interrogation, or evidence derived from the interrogation, is inadmissible unless counsel was present for the interrogation.”

In order for the statements to be ruled inadmissible, the accused’s attorney must be able to identify the right to counsel violations and must typically file a motion to exclude.  

Requesting an Attorney Cannot be Held Against You

Service members under investigation often make statements to law enforcement because they are concerned about the optics of how it will look if they invoke their right to remain silent or request to speak to an attorney. This is usually the wrong decision.

The Military Rules of Evidence prohibit the government from using an accused’s invocation of their rights against them. In other words, the prosecution cannot comment at trial on the fact that an accused invoked his right to remain silent, refused to answer certain questions from law enforcement, or requested to speak with an attorney.

This right to codified in M.R.E. 301(f)(2) which provides: “The fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated, is not admissible against the accused.”

To be safe, a service member who is under investigation should always ask to speak with counsel before making any statement to law enforcement. That request for co

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

The post Fundamental: The Right to Counsel appeared first on Military Justice Attorneys.

Marines and loved ones who have filed a Camp Lejeune water contamination claim may be offered a financial lump sum to end their claims early through what is being called the Elective Option (EO). Under the Elective Option, an eligible claimant can be offered up to $550,000 to resolve their administrative claim or lawsuit under the Camp Lejeune Justice Act (CLJA) of 2022.

If you were harmed by the toxic water at Camp Lejeune and filed a CLJA administrative claim, you may be contacted by the Department of the Navy or Department of Justice to accept an offer through the Elective Option program – but should you? Before you sign anything, you should learn more about the Elective Option and always talk to an attorney.

What You Should Know About the Camp Lejeune Elective Option

On 6 September 2023, the Department of Justice and Department of the Navy (DON) announced a voluntary process, call the “Elective Option,” to help claimants quickly resolve qualifying claims under the Camp Lejeune Justice Act of 2022.

What medical conditions qualify under the Elective Option?
The Elective Option may only be offered for the following health conditions that have been linked to the toxic water at Camp Lejeune:

• Kidney Cancer
• Liver Cancer,
• Non-Hodgkin Lymphoma
• Leukemias
• Bladder Cancer
• Multiple Myeloma
• Parkinson’s Disease
• Kidney Disease / End Stage Renal Disease
• Systemic Sclerosis / Systemic Scleroderma

If you have not been diagnosed with one of these medical conditions, you cannot be eligible for EO.

Will I get a $550,000 settlement through the Camp Lejeune Elective Option?
The Elective Option does not guarantee any Camp Lejeune claimant a settlement offer. And if a claimant does qualify, the amount is certainly not guaranteed to be $550,000. Instead, $550,000 is the maximum allowable amount under the Elective Option program, and the Department of the Navy website states that “some eligible claimants will receive less […]”. The lowest one-time payment that can be received through the Elective Option is reportedly $100,000.

How does the Elective Option calculate a settlement offer to an eligible claimant?
To calculate a settlement offer given to an eligible claimant under the Elective Option, the federal government mainly considers the claimant’s diagnosed medical conditions and how much time that claimant was exposed to toxic water at Camp Lejeune. The Elective Option offers different settlement amounts for claimants who were at Camp Lejeune for 30 to 364 days; 1 year to 5 years; and more than 5 years.

Can I still sue if I accept the Camp Lejeune Elective Option?
No, once you accept the Elective Option for a Camp Lejeune administrative claim or lawsuit, you will be barred from filing a lawsuit for additional damages. Part of the Elective Option’s “deal” is that you accept the settlement and agree to take no further legal action against the federal government for any harm or losses related to water contamination at Camp Lejeune.

What happens if I was diagnosed with more than one injury linked to Camp Lejeune’s water contamination? Can I recover for both injuries?
No. This is a major potential drawback to the Elective Option for some claimants. Under the Elective Options, claimants can only qualify for one settlement offer. If you have multiple injuries or illnesses linked to Camp Lejeune water contamination, any EO offer should represent an amount based on the “worst” of your injuries/illnesses. Thus, you can only be compensated for a single harm or injury.

Does it matter when I was first diagnosed or treated for the condition (i.e. Is there a latency requirement for the Elective Option)?
Yes. In order to be eligible for an EO offer, you must have one of the eight medical conditions listed above. Furthermore, these medical conditions would have to have been diagnosed within 35-years of your last exposure to the toxic water at Camp Lejeune. As an example, a Marine who was exposed to the contaminated water at 20 years old must be diagnosed with a qualifying injury by age 55 in order to qualify under the Election Option. Of note, if your diagnosis date occurs after the Camp Lejeune Justice Act was passed into law in August 2022 then you would be deemed ineligible by the Federal Government.

How long do I have to accept a Camp Lejeune Elective Option offer?
The Department of Justice only allows claimants 60 days upon receiving an Elective Option settlement offer to accept and sign it, except for extremely rare and limited circumstances.

If I accept an Elective Option, how long does it take to receive the settlement payout?
The federal government has stated that Elective Option compensation will arrive as a one-time payment, usually within 60 days after the settlement offer is accepted by the claimant.

Do Camp Lejeune Elective Option offers offset my military benefits?
The federal government has stated that accepting an Elective Option should not create any unintended benefits offsets, such as with benefits and coverage from the Department of Veterans Affairs (VA), TRICARE, Medicaid, or Medicare.

Can you get an Elective Option offer if your Camp Lejeune lawsuit has entered litigation?
Currently, the Department of the Navy is not offering Elective Option to claimants who have already entered litigation for a Camp Lejeune water contamination lawsuit. However, the Department of Justice has made several dozen offers to eligible plaintiffs who have filed a lawsuit in Federal Court. It should be noted that the majority of EO offers extended by the Department of Justice have been rejected by the claimant or plaintiff. .

What happens if you don’t qualify for the Camp Lejeune Elective Option?
Claimants who don’t qualify for the Elective Option should still file an administrative claim with the Department of the Navy.

Is the Camp Lejeune Elective Option Right for You?

The Elective Option offer may be in the best interest of some claimants or plaintiffs, but there will likely be many more other who will not benefit from it based on the strict eligibility requirements, such as latency, and the limited number of medical conditions.

Furthermore, claimants who suffer from multiple compensable medical conditions due to the contaminated water may not be fairly compensated under the Elective Option, which limits recovery to only a single injury.

Claimants who accept EO settlement offers forfeit their right to use another claim or lawsuit to pursue further damages. Whatever you get in the settlement would be all you could ever get for the harm Camp Lejeune’s toxic water has done to you and your family.

Before you sign a Camp Lejeune Elective Option settlement offer, talk to Military Justice Attorneys and do it quickly. You likely have 60 days or fewer to either accept the offer or request a reconsideration for a better offer. Contact Military Justice Attorneys as soon as possible, so we can help you review the Elective Option settlement offered to you and decide if it is fair before any legal time limits expire.

Why do so many people nationwide pick Military Justice Attorneys for legal counsel?

• We are a veteran-owned and operated law firm that specializes in the representation of active-duty service members and veterans.
• At MJA, ALL our attorneys were active-duty Marines. To us, this is personal.
• Our attorneys have more than 75 years of combined legal experience and have committed their lives to fighting for service members and their families.

To learn more about the Camp Lejeune Elective Option, or to get help deciding if you should accept a settlement offer, call (843) 773-5501 right away.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a speedy and public trial. In the military, the Sixth Amendment speedy trial protections are triggered upon preferral of charges or the imposition of pretrial restraint (e.g. confinement). While an accused will often allow pretrial delay in order to fully prepare for trial, the right to a speedy trial is as foundational as any other Sixth Amendment right.

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.

Historical Background

The right to a speedy trial goes back to the very beginning of English law and even before. The first formal codification of the right appears to have been in the Magna Carta, signed by King John in 1215, where it was written: “We will sell to no man, we will not deny or defer to any man either justice or right.”

Hundreds of years later, this concept was articulated more simply by Sir William Gladstone who declared that “justice delayed is justice denied.” The right to a speedy trial recognizes the profound injustice and needless suffering—emotional, financial, mental, reputational, etc—that can occur to those involved in the criminal justice system when a legal matter is unnecessarily delayed and not swiftly resolved.

Applicable Authority

Due to these concerns, the Framers of the Constitution enshrined the right to a speedy trial in the Bill of Rights. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a speedy and public trial. In the military, the Sixth Amendment speedy trial protections are triggered upon preferral of charges or the imposition of pretrial restraint (e.g. confinement).

In addition to the Sixth Amendment, the UCMJ and Rules for Court Martial (R.C.M.) also grant an accused the right to a speedy trial. Under Article 10, UCMJ, 10 U.S.C. § 810 (2012), once a service member is placed in pretrial confinement the Government is required to exercise “reasonable diligence” in bringing the accused to trial.  United States v.

Further, R.C.M. 707(a) provides that “[t]he accused shall be brought to trial within 120 days” of the imposition of restraint under R.C.M. 304(a)(2)-(4). For purposes of R.C.M. 707, an “accused is brought to trial . . . at the time of arraignment.” R.C.M. 707(b)(1). The speedy trial clock under R.C.M. 707 is reset if the accused is released from pretrial restraint for a “significant period” and starts again when charges are re-preferred, when pretrial restraint is reimposed, or the date the service member enters active duty

Factors to Determine a Speedy Trial Violation

Military appellate courts review four factors to determine if there is a Sixth Amendment speedy trial violation: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s demand for a speedy trial; and (4) the prejudice to the accused).   

The length of the delay. A delay must be “facially unreasonable” to trigger a full due process analysis. The United States Court of Appeals for the Armed Forces (C.A.A.F). has found that a pretrial confinement period of 117 days triggered the full analysis but that periods as long as 350 days pretrial confinement did not rise to the level of a Sixth Amendment violation.

The reasons for the delay. Whether a delay is unreasonable is determined not just on the length of the delay but perhaps even more so on the reason for the delay. The CAAF has found that a “prosecution strategy” which requires coordinating the testimony of obtaining immunity for multiple co-conspirators can be a justification for even a lengthy delay.

The accused’s demand for a speedy trial. Service members pending court-martial often have strategic reasons to not demand a speedy trial. Those who do demand speedy trial will meet this factor on appellate review.

The prejudice to the accused. A service member who is denied a speedy trial either pretrial or on appeal can suffer many forms of prejudice including an oppressive incarceration, increased anxiety and concerns, and limitation of potential defenses if a case is reversed on appeal. Courts consider the latter injury to be the most serious.

A service member who can prove a speedy trial violation can be provided relief on appeal, including the possibility of dismissal with prejudice in the most egregious of cases.

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 Fundamental: The Right to a Speedy Trial appeared first on Military Justice Attorneys.

Criminal defendants in the United States are presumed to be innocent under the law. While an accused is never required to prove his or her innocence, the Constitution does guarantee them the right to present a defense if they so choose. This includes the right to have notice of the charges and evidence against them, call witnesses favorable to their defense, confront witnesses through cross-examination, and testify on their own behalf.

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.

Right to Notice

The most basic requirement to presenting a defense is the right to be placed on notice of the charges you. In order to adequately prepare a defense, an accused must first know what they have been charged with and what the government is required to prove for a finding of guilt. In the military, an accused is notified of the charges against them after being served with a preferred or referred charge sheet.   

Sometimes, however, a charge sheet is not enough.

When greater specificity is required to defend against a charge, a service member can file a bill of particulars under Rule for Courts-Martial (RCM) 906(b)(6). The purpose of a bill of particulars is “to inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification itself is too vague and indefinite for such purposes.” Id.

A bill of particulars can be used to determine what the government believes happened, which the defense can then use to prepare for trial or file a motion to dismiss any charge that is multiplicious with another.

Right to Equal Access to Evidence and Witnesses

After being informed of the charges, an accused next has the right to review the evidence against him. Article 46, UCMJ, provides the trial counsel, defense counsel, and the court-martial with the “equal opportunity to obtain witnesses and other evidence in accordance with” in accordance with the Rules for Court-Martial.

R.C.M. 701 guarantees each party the “equal opportunity to interview witnesses and inspect evidence.” The rule further provides that the defense may inspect “[a]ny books, papers, documents, photographs, tangible objects, . . . or copies of portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). 

The purpose of these rules is “aid the preparation of the defense and enhance the orderly administration of military justice.” Military courts have held that pretrial discovery and disclosures issues should be evaluated in light of the rule’s “liberal mandate.”

Right to Confrontation

The Confrontation Clause of the Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him. The right to confrontation generally has three components: (1) that the accused have an opportunity to cross-examine the witness; (2) that the witness’s testimony be under oath; and (3) that the jury be able to observe the witness’s demeanor.

At the heart of the right to confrontation is the requirement that any testimony presented to a jury be subject to cross-examination. The ultimate goal of cross-examination is to test the reliability of testimonial evidence, which is notoriously unreliable. A witnesses’ testimony may be impacted by a personal bias, limitations on memory, physical or environmental factors, or improper suggestion.

In the 1992 hit movie “My Cousin Vinny”, Joe Pesci—and lawyer from New York with no trial experience—finds himself defending a murder case in rural Alabama. After finally getting comfortable in the courtroom, Vinny conducts three masterful cross examinations of eyewitnesses who testified they had seen Vinny’s clients flee the scene of the crime.

During his cross, Vinny gets Mrs. Riley (an elderly lady) to state that she couldn’t see well with out-of-date prescription glasses, has Ernie Crane (a neighbor) concede that he could not see the defendants clearly through dirty window screens and trees, and has Sam Tipton admit that he was mistaken on how long the defendants were in the store while cooking his non-magical grits.

While the right to cross-examination generally requires that the witness appear in person before the jury, child witnesses may be exempted from face-to-face interaction with the accused in certain circumstances and where other accommodations have been made for the jury to remotely observe their testimony.

Right to Testify

In addition to the rights listed above, an accused service member always has the right to testify in their own defense. While the decision of whether or not to testify is ultimately up to the accused, a defendant should only testify after extensive consultation with their attorney. Choosing to testify can result in the government presenting additional evidence or the accused being impeached (and made to look like a liar) if they made prior statements to the contrary.  

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.

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The right to trial by jury is the cornerstone of the American system of justice. James Madison, one of the major contributors to the Constitution, stated that “Trial by jury is essential to secure the liberty of the people as any one of the pre-existent rights of nature.” The belief was widely held by the Framers of the Constitution and ultimately enshrined in the Bill of Rights.

While courts-martial are not subject to the jury trial requirements of the Sixth Amendment, military defendants do have the right to be tried by a fair and impartial panel under Article 25, Uniform Code of Military Justice (UCMJ).  

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the 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.

Eligibility and Selection of Members

Jury members in the military are referred to as “member” and the jury is called a “panel.” Article 25, UCMJ, details who may serve as members on a court-martial. The list includes commissioned officers, warrant officers, and, when specifically requested by the accused, enlisted members if the accused is also an enlisted member. Generally, members should not be junior in rank to the defendant.

In the military justice system, panel members are chosen by the convening authority—the same individual who also decides whether to bring criminal charges forward to trial. Under Article 25, the convening authority is required to detail as members only those individuals who, in his or her opinion, are “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Notably, gender is not a selection factor under Article 25, UCMJ, and selection on the basis of gender is generally prohibited.

While a military defendant has an absolute right to a fair and impartial panel, courts-martial are not subject to the jury trial requirements of the Sixth Amendment, and, therefore, military members are not afforded a trial in front of a representative cross section of the military community.

Peremptory Challenges and Challenges for Cause

RCM 912(f)(1)(N) requires that a court-martial member be excused for cause whenever it appears that the member should not sit as member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality. A lack of impartiality can result from either implied or actual bias.

Actual bias is defined as bias in fact. Actual bias exists when there is evidence that the potential member will not act impartially and where the person possesses a “personal bias which will not yield to the military judge’s instructions and the evidence presented at trial.”

For example, courts have found that actual bias exists if a potential panel member holds an inelastic attitude toward the appropriate punishment to adjudge if the accused was convicted. A mere predisposition or inclination to give a certain type of punishment is not enough to disqualify a member. Rather, the evidence must show that the member’s attitude is of such a nature that he will not yield to the evidence presented or the judge’s instructions.

In contrast, implied bias challenges stem from the historic concerns about the potential for command influence in courts-martial. To determine whether implied bias exists, courts try to determine whether the public will perceive that the accused received something less than a court of fair, impartial members. This determination is based on the totality of the circumstances.

During jury selection, the parties may raise an unlimited number of challenges for cause. However, each side is only entitled to one peremptory challenge.

Authority of Members

One of the most unique and interesting facets of the military justice system is that panel members have the opportunity to ask questions during the court-martial and even obtain other witnesses and evidence under Article 46, UCMJ.

RCM 921(b) further gives members the chance to request that the court-martial be reopened, and that additional evidence be introduced. MRE 614(a) allows members to request to call or recall witnesses to testify at a court-martial. The military judge decides whether to grant these requests.

After hearing all the evidence and instructions, members will decide on guilt or innocence. If there is a conviction, members can also impose a sentence, or a service member can elect sentencing by military judge alone.  

Unanimous Verdict Not Required

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The United States Supreme Court has repeatedly held that the Sixth Amendment requires a unanimous verdict. In other words, to be convicted of a crime in civilian court, all jurors must agree on the issue of guilt.

Unfortunately, this right does not extend to military courts-martial. Unlike a civilian court where a unanimous decision is required for conviction, in a military court the Government only needs three-fourths of the military panel to secure a conviction. A sentence of death is an exception and requires a unanimous finding of guilt and a unanimous determination by the members that death is the appropriate sentence.

The Court of Appeals for the Armed Forces (CAAF) recently considered this issue again United States v. Anderson (2023). The CAAF emphasized that the Sixth Amendment right to a jury trial does not apply to courts-martial and reasoned that a military defendant can have a fair and impartial panel even if it is not unanimous.

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.

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The right to remain silent is one of the most important rights to a person suspected of criminal misconduct. Provided by the Fifth Amendment to the United States Constitution and Article 31, Uniform Code of Military Justice (UCMJ), the right to remain silent allows a service member to refuse to answer any question that might tend to incriminate them.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ. If you are facing allegations of misconduct, MJA can help you determine whether it is in your best interest to make a statement or remain silent. Contact one of our military defense lawyers today for a free consultation.

Fifth Amendment Right

The Fifth Amendment to the United States Constitution protects civilians against compulsory self-incrimination. In the seminal case of Miranda v. Arizona (1966), the United States Supreme Court ruled that when a person is interrogated while in police custody, they must be read their Miranda rights. These protections include not only the right to remain silent, but also the right to have a lawyer present during questioning and the right to a court-appointed attorney, if you can’t afford one.

A person is in “custody” for Miranda purposes if they are taken into custody, could reasonably believe that they are in custody or otherwise deprived of their freedom of action in any significant way. Courts have developed factors to consider in determining whether a suspect is in custody. These include, for example, whether the person is under formal arrest and whether they voluntarily accepted an invitation to talk. 

The Supreme Court has carved out exceptions for some types of questioning that do not require a Miranda warning. One such example is that for routine booking questions, or those that are “reasonably related to the police’s administrative concerns” and used “to secure the biographical data necessary to complete booking or pretrial services.” The policy may not, however, ask questions during booking that are designed to elicit an incriminatory admission.

Article 31(b), UCMJ Right

Article 31of the UCMJ provides similar, but slightly different, protections to service members. Article 31(b) states that “no person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”

In short, this means that a service member accused or suspected of an offense may not be interrogated or asked to provide an incriminating statement without first being informed:

1. Of the nature of the accusation;
2. That they have the right to remain silent; and
3. That any statement made may be used as evidence against them in a trial by court-martial.

Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.

Persons “Subject to the Code”

It’s important to note that the requirements of Article 31, UCMJ, only apply to persons who are “subject to the code” (referring to the Uniform Code of Military Justice). ” This includes active-duty service members as well as any “knowing agent of any such person or of a military unit.”

For example, in a case out of Camp Lejeune, North Carolina, military prosecutors were able to have a Wounded Warrior Care Coordinator, who was a civilian and not “subject to the code”, testify against the accused. Specifically, the Care Coordinator was allowed to testify to admissions made by the accused about the night in question even though the Care Coordinator suspected the accused of wrongdoing and failed to provide Article 31(b) warnings.

In contrast, the accused’s Staff Non-commissioned Officer, who was “subject to the code,” was NOT allowed to testify after failing to advise the accused of her Article 31(b) rights prior to questioning.  

Involuntary Statements are Not Admissible

A statement obtained from an accused or suspect in violation of Article 31 is generally considered involuntary and therefore inadmissible at court-martial. While statements involuntarily obtained cannot be used against an accused for the ultimate fact at issue — guilt or innocence — military prosecutors may be able to use such statements at trial for other purposes, such as lack of mistake or consciousness of guilt. 

Remember, investigators are not your friend. Investigators will play nice when speaking with a suspect but are only trying to elicit information they can later use against you. Generally, investigators are not seeking the truth but rather trying to get evidence to corroborate a preconceived narrative about what they believe happened. If a service member does speak to law enforcement—which is almost never advisable—do not lie because that will only make the situation worse.

Comparison Between Fifth Amendment and UCMJ

The protections for servicemembers under Article 31 are different from Miranda rights in a few important ways. First, service members must be told what crime they are accused of under Article 31(b); with Miranda, you are not. Additionally, service members must be told of their Article 31(b) rights any time they are being questioned, not just when they are in custody, as with civilians under Miranda. Finally, service members are NOT required to be told that they may have counsel present before or during the investigation. This is what we are here for at Military Justice Attorneys.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

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Military officers, cadets, and midshipmen are held to the highest personal and professional standards. When those standards are not met, officers may be administratively punished or even criminally prosecuted for violating Article 133, UCMJ, conduct unbecoming an officer and a gentleman.

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 against some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Definition and Elements

Conduct unbecoming an officer and a gentleman is defined as any “action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer.”  The term “gentleman” includes both male and female commissioned officers, cadets, and midshipmen.

To be guilty of violating Article 133, the Government must prove two elements:

      (1) That the officer, cadet or midshipman did or omitted to do a certain act; and

      (2) That, under the circumstances, the act or omission constitutes conduct unbecoming an officer and gentleman.

Because of how vague the elements and definition are, conduct unbecoming an officer and a gentleman is one of the most nebulous and abused charges under the UCMJ.

Conduct Unbecoming Explained

Generally speaking, Article 133 prohibits conduct by a commissioned officer, cadet, or midshipman which compromises their standing as an officer and as a gentleman. Contrary to popular belief and depictions in movies, enlisted service members cannot be charged with “conduct unbecoming” in violation of Article 133. This charge is reserved solely for officers, cadets, and midshipmen.

The offense of “conduct unbecoming an officer and a gentleman” is based on the idea that officers are expected to possess certain moral attributes that make them fit to lead. For example, an officer who is dishonest, unfair in his treatment of others, indecent, indecorous, lawless, unjust, or cruel should not be leading our nation’s sons and daughters.

Article 133 explains that while officers should not be held to unrealistically high moral standards, the “customs of the service and military necessity” do require a basic minimum which all officers must meet without seriously compromising their standing or character as a leader.

Importantly, Article 133 includes acts that are also punishable under other UCMJ articles, provided that the misconduct also amounts to conduct unbecoming an officer and a gentleman. For example, a commissioned officer who steals property may be charged with violating both conduct unbecoming (Article 133) and larceny (Article 121).

Examples of Conduct Unbecoming

The Manual for Courts-Martial provides a number of examples of conduct which could be considered unbecoming an officer and a gentleman. These include:

• knowingly making a false official statement;
• dishonorable failure to pay a debt; cheating on an exam;
• opening and reading a letter of another without authority;
• using insulting or defamatory language to another officer in that officer’s presence or about that officer to other military persons;
• being drunk and disorderly in a public place;
• public association with known prostitutes;
• committing or attempting to commit a crime involving moral turpitude;
• and failing without good cause to support the officer’s family.

But these are only examples. Officers under investigation for almost any type of misconduct (including non-criminal offenses) are often hit with “conduct unbecoming” allegations as a type of catch-all charge. 

Military courts have previously found that it was NOT conduct unbecoming a senior officer to merely loan money to a subordinate or for an officer to visit a legal brothel with enlisted members where the officer did not seek or engage in sex. These cases are exceptions, however, and should not be used as a guide for acceptable conduct.

Defenses

Any defense for conduct unbecoming an officer 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.

Additionally, commands often try to punish officers for conduct that is merely inappropriate or unsuitable. That is not the legal standard. Rather than simply lacking good taste, “unbecoming conduct” means conduct that is “morally unfitting and unworthy.”  A skillful 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 conduct unbecoming an officer is dismissal (the officer equivalent of a dishonorable discharge), forfeiture of all pay and allowances, and confinement for a period not to exceed that authorized for the most analogous offense for which a punishment is prescribed in this Manual, or, if none is prescribed, for 1 year.

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, 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.  

Call us today at (843) 773-5501 for a free consultation.

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May 1, 2023 – Press Release

MJA is excited to announce that Chip Hodge – who joined our firm last July – has moved into a full-time role as Partner. Chip’s practice areas include military administrative and criminal defense, civil litigation, and family law.

Chip, a retired Lieutenant Colonel in the United States Marine Corps, 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.

Before that, Chip was 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.

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.

Chips lives in the foothills of the Blue Ridge mountains with his wife and kids and their newfoundland, Memphis. In his spare time, Chip enjoys playing soccer, watching the Pelicans play basketball, and working as a gentleman farmer. 

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