Blogs from 2024

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

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA are all military officers who served on active duty and have defended drill instructors/sergeant, recruiters, and cadre against some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Background and Intent Behind Article 93a, UCMJ

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

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

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

Prohibited Conduct Among Those in “Training Leadership Positions”

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

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

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

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

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

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

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

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

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

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

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

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

Military Recruiters Cannot Engage in Prohibited Sexual Activity

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

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

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

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

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

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

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

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

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

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

Defenses

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

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

Maximum Punishment

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

Protect Your Freedom and Military Career

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

Defense Base Act FAQs

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

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

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

Frequently Asked Questions

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

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

2. Who is typically covered under the DBA?

You are likely covered by the DBA if you:

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

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

4. Does DBA cover worker injuries and deaths?

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

5. What benefits can I get under the DBA?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONTACT MJA TODAY

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

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

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

What is Kidnapping under Article 125, UCMJ?

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

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

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

3. That the accused did so wrongfully.

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

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

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

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

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

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

Kidnapping is such a serious crime that it is considered a “covered offense” under the UCMJ and is therefore handled by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:

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

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

What are the Defenses to Kidnapping?

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

What is the Punishment for Kidnapping?

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

Protect Your Freedom and Military Career

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

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

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

Background and Intent Behind Article 132, UCMJ

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

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

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

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

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

Retaliation – Threatening or Withholding Personnel Actions

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

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

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

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

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

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

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

Discouraging a Report of Criminal Offense or Protected Communication

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

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

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

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

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

What is a protected communication?

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

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

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

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

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

Defenses to Allegations of Reprisal

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

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

Maximum Punishment

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

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

Protect Your Freedom and Military Career

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

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

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

COMMON DEFENSES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOT DEFENSES GENERALLY

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

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

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

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

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

Contact MJA Today

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

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

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

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

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

Background and Intent Behind Article 130, UCMJ

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

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

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

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

Elements of Article 130, UCMJ

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

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

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

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

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

Definitions and Explanation

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

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

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

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

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

Defenses

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

Maximum Punishment

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

Protect Your Freedom and Military Career

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

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

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

Legal Authority

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

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

Reason to Withdraw Federal Recognition

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

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

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

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

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

Initiation and Processing of WOFR Proceedings

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

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

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

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

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

Boards of Officers Hearing

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

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

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

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

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

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

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

MJA has a Proven Track Record of Success

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

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

Contact MJA Today

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

Our firm is often contacted by people who are curious about lawsuits against government contracting companies in Iraq, Afghanistan, Somalia, and other conflict regions to which the United States sends its military. While class action lawsuits are sometimes brought against government contracting companies alleging wrongful conduct, many of the “lawsuits” that contractors hear about are workers’ compensation claims against contracting companies that support the U.S. Government overseas.

The Defense Base Act Provides Coverage to U.S. Agencies

The Defense Base Act is a federal law that requires companies supporting United States agencies abroad to maintain worker’s compensation insurance for their employees in the event of a work-related injury. Many U.S. contractors and foreign nationals working in support of U.S. agencies have Defense Base Act Coverage for their past and present employment periods without even knowing it.

One important difference between a workers’ compensation claim and a class action lawsuit is that proof of wrongdoing against the defendant must be provided in a class action lawsuit, as well as a proven connection between the injury and causation. On the other hand, for a workers’ compensation claim, if an employee’s injury arises from the course of their employment, the employer is required to provide workers’ compensation benefits in the form of medical treatment, wage loss pay, and vocational rehabilitation assistance, even if the employer didn’t do anything wrong.

Private Companies That Provide Support to the U.S. Military

When the United States sends its military into high-conflict regions around the world, it relies heavily on the private sector and local population for logistical support, security, construction, building maintenance, food services, etc. Not every activity related to the U.S. military presence in an area requires the action of an active-duty soldier, marine, or sailor, after all. The military delegates many of its responsibilities in an area to the private sector. Hundreds of companies often work with the U.S. Government through contracted work, such as:

• Valiant Integrated Services
• Amentum
• SOC LLC
• Constellis
• Triple Canopy
• Raytheon
• Global Linguist Solutions
• Aegis Security
• SOSi
• KBR
• Olive Group
• New Future Company

Attacks Target Soldiers & Contractors Like

United States military bases in high-threat areas often become targets of attacks by terrorists and insurgent groups in the area, especially in countries like Iraq and Afghanistan. In some areas of these countries, insurgents are known to fire mortars and rockets at U.S. military installations daily. Local militias threaten members of the local population and their families because of the contractors’ affiliation and assistance to the United States, too.

Local nationals who work with the U.S. Government often suffer these persistent symptoms and more:

• Difficulty falling and staying asleep
• Nightmares
• Severe mood swings and anger outbursts
• Stress
• Long-term fear and anxiety
• Self-isolation from family and friends
• Discomfort in crowded or loud places

Many local national workers believe these symptoms will go away as soon as they are removed from the hostile area, but for many, they don’t. Active-duty military service members have the Department of Veterans Affairs (VA) to help with injuries after they complete their service, but military contractors have Defense Base Act (DBA) insurance to help with their injuries.

Employees Can Get Benefits if Their Employer Is No Longer in Business

Many contractors that supported the U.S. Military in Iraq and Afghanistan can still access their DBA benefits even though their employer has gone out of business or merged with another company. Employers are ultimately responsible for providing workers’ compensation benefits to their employees, but they can also meet this burden by purchasing an insurance policy and contracting with a third-party insurance carrier to cover and represent them. In the case of the Defense Base Act insurance, the purchase of a policy is mandated by the United States Government where the work is being paid for by U.S. Government agencies for certain types of contracts.

Furthermore, when a company enters into a merger, the liabilities of the company being dissolved are often absorbed by the purchasing company. Many of the contracting companies from 15 or so years ago have been purchased and sold many times. Identifying the company successor-in-interest for an employer that a contractor worked for so long ago, and then identifying which insurance company they purchased their Defense Base Act policy from, can be daunting and seemingly impossible—without the right resources and support.

At Military Justice Attorneys, we have highly experienced attorneys who have successfully handled such complex cases, time and again. Even if there is no successor in interest, the insurance policy likely still lives on and provides benefits for latent injuries arising from a contracted worker’s employment, so the benefits should still be out there. We know where to look, what questions to ask, which paperwork to file, and so on.

DBA Benefits Are Not a Government Handout

Are you apprehensive about applying for Defense Base Act benefits because you mistakenly believe workers’ compensation is a government handout? While it is true that the U.S. Government does indirectly pay for the policy, the worker’s compensation insurance is provided by a private company that receives substantial pay in exchange for a promise to provide these benefits to contractors in the event they suffer injuries that arise from completing contracted work overseas or abroad. The insurance company has already been paid for its insurance products and services, so applying for the benefits is not a handout—it is just asking for what you are already owed!

Do I Qualify for DBA Benefits?

Thousands of contractors are discovering that their difficulties in maintaining personal relationships, anxiety, depression, and other symptoms are the result of a psychological injury that arose from their work as contractors in support of the United States abroad. With the Defense Base Act, many could qualify for various benefits, such as wage loss compensation, medical treatment, and vocational rehabilitation if their injuries preclude them from continuing their career as an overseas contractor and they need additional education to enter a new field in their country of residence. Many others can obtain settlements so they can have more control over which benefit providers they want to see, and when they want to see them.

Many local nationals were never even told these benefits were available to them, though, and some even passed away without ever seeing a dime from the insurance companies. If that happens, a claim might be brought by a surviving heir or loved one. In some cases, an injury claim can even be filed decades after the injury was first suffered.

Do I Need an Attorney to File a Claim?

Lawsuits and workers’ comp claims are complex. The responsible employer, date of loss, the type of injury, calculation of lost wages, etc. may all seem like simple matters, but the fact is that they are often not. In this area of the law, the court has crafted complicated rules for identifying the responsible employer in occupational injury cases, such as a claim for cumulative psychological injury like PTSD. In an occupational injury case, for example, the employer that last exposed you to the working conditions that could have caused or aggravated the type of injury claimed is the responsible employer to file against; it may still be a later employer that is legally responsible to provide benefits for your injury.

Filing a claim against the wrong employer for an occupational injury claim or workers’ compensation claim for Defense Base Act benefits can cause years of delay and endless frustrations. To save yourself time, energy, and resources, you should already be thinking about hiring an experienced legal counsel who knows the rules to stand up for you.

Retain the Services of an Experienced Attorney at No Cost to You

For any linguist, security, or labor contractor who worked in hostile areas in support of U.S. forces, it’s worth seeing what benefits may be available. At Military Justice Attorneys, we can help local national, and U.S. resident/citizen contractors who supported U.S. Military forces abroad get evaluated for latent injuries and file claims against the contractors’ workers’ compensation insurance policies. We proudly offer our services to such contractors at no cost to them, so more people can reach out to us for the legal guidance and representation they deserve.

Call Military Justice Attorneys if you have any questions about Defense Base Act claims or workplace injury lawsuits filed for injured contractors, local national workers, and others who have worked in the service of the United States Government while abroad or overseas. Dial (843) 773-5501 or contact us online to ask about our legal counsel that is made available at no cost to you.

Where the United States Military goes, so does a large amount of funding to support military bases and embassies, to repair infrastructure after a conflict, and generally to execute United States’ missions abroad. Much of this funding goes to pay local nationals for their services to the United States agencies in providing contracted security, construction, general labor, and linguist support.

If you or a loved one were injured while working as a contractor in support of the United States, contact MJA today to see if you qualify for benefits and coverage under the Defense Base Act.

The DBA Coverage for Qualifying SIV Holders and Refugees

The Defense Base Act is a federal law that requires companies that support United States agencies abroad maintain worker’s compensation insurance for their employees in the event of a work-related injury. Many U.S. contractors and foreign nationals working in support of U.S. agencies have Defense Base Act Coverage for their past and present employment periods without even knowing it.

Even Non-United States citizens (citizens of Iraq, Afghanistan, Somalia, Jordan, Qatar, Kuwait, or other nations) may be eligible for benefits related to a work-related injury, if the injury resulted from work as a contractor in support of the United States Government.

Many local national contractors come to the United States on a Special Immigration Visa (SIV) because their lives were threatened due to their affiliation with the United States, while working as a contractor. Additionally, many contractors experience rocket and mortar attacks on U.S. Bases, Suicide bombers, Snipers, Risk of Kidnapping, Improvised Explosive Devices (IEDs). This extreme, constant, and long-term stress due to the life-threatening nature of the work performed and work environment can cause a psychological injury, for which financial and medical benefits are available.

Risks & Injuries to Local Nationals in Supporting the United States

The local national employees that support the United States abroad do so at great risk to themselves and their families. Often, they become targets of hostile attacks from insurgent and terrorist activities because of their affiliation with U.S. forces. Insurgents regularly attack U.S. Military installations in locations where the U.S. Military has ongoing operations, and these risks don’t stop at the end of the workday for local nationals. Many local nationals and their families are targeted, injured, killed, or threatened, requiring them to flee to the United States to seek refuge by applying for a Special Immigration Visa (SIV). Many refugees are often forced to quit their jobs because of the risks and injuries associated with their support to the U.S. Government.

You May Not Know That You Have Defense Base Act Coverage

Many local nationals who have contracted with private companies to support military bases and rebuild host nations are unaware that they could qualify for workers’ compensation insurance during that work, much like the typical worker in the United States. The U.S. Government mandates and pays for workers’ compensation insurance that would provide wage loss protection and medical benefits to local nationals in the event they become injured because of their employment in support of the United States’ operations in the host nation. Many local national employees believe the United States has exploited them and then abandoned them in a time of need, but this is not the case.

Although most companies are required to post information regarding workers’ compensation benefits in common workspaces for their employees to see, most contracting companies that provide services to the U.S. Government abroad are unable to do so. In many cases, contracting companies that support U.S. bases aren’t providing services in their own buildings, so there’s no simple place to post that information. They are hiring people and tasking them to work alongside military or civilians who work directly for the United States Government in government-provided buildings that aren’t controlled by the contracting companies. While contractors sent overseas from the United States receive “pre-deployment” training and briefings that inform them of the Defense Base Act benefits available if they get injured, the local nationals do not receive these briefs.

Defense Base Act Insurance for Injured Contracted Local Nationals

Defense Base Act insurance helps injured local national workers who were contracted by the U.S. Government in a way similar to workers’ compensation insurance that is available to many American workers. Most local national contractors that support U.S. agencies abroad are covered by Defense Base Act insurance. In the event a worker suffers an injury that arises from their employment and prohibits continued employment, the Defense Base Act insurance can provide replacement income during the time they are unable to earn the same level of income. It also provides any and all reasonable and necessary medical treatment until they reach maximum medical improvement.

There is no time bar or statute of limitations to medical benefits for injuries suffered while working as a contractor in support of the United States. In many cases, local nationals and SIV holders can also be entitled to financial compensation or vocational rehabilitation (new career training) under their former employer’s Defense Base Act workers’ compensation insurance policy.

Work for Contracting Companies Can Qualify for DBA Benefits

While the United States pays contracting companies to do the work, private companies hire local national employees and/or other host-nation-based companies to do the work for them. The United States works with many such security, construction, general labor, and logistics companies abroad, including:

• Global Linguist Solutions
• Valiant
• Atlas Advisors
• New Future Company
• SOSI
• SOC, LLC
• Worldwide Language Solutions
• Shee Atika Languages
• KBR
• And hundreds more

Even if you worked for local Iraqi or Afghan companies, if those companies were providing ongoing services to the benefit of the United States, U.S. military bases, or U.S. embassies in the construction, security, linguist, or general labor sectors, then there was probably Defense Base Act (DBA) coverage through an American “prime” contracting company. Military contractors who work for private companies in support of U.S. forces in foreign countries are often exposed to countless traumatic events that cause lasting symptoms that could entitle the contractor to medical treatment benefits, financial support, or a settlement at no cost to the contractor.

Benefits Not Limited by Passage of Time, Nationality, or Residency

Certain Defense Base Act benefits are available to certain local national employees, regardless of nationality, country of residence, or passage of time following employment. Such benefits are available to all government contractors that supported United States-funded contracts in hostile areas, even if former employees had to take refuge in another country, or still live in the host nation in which the United States operated.

Occupational Injuries May Take Years to Discover

Many local nationals may not even know they have a psychological injury related to their contracted work because some injuries a “latent” and are not easily recognizable. Many may know they have certain symptoms but believe that their symptoms will go away with time, only to find out years later that they have suffered a psychological injury. Even if an occupational injury takes years to discover, it does not automatically bar an eligible worker from using the Defense Base Act to seek workers’ compensation benefits.

Psychological Injuries from Working in a Hostile Area

Many believe that having a psychological injury means they are weak or broken, but this has never been the case. The human body adapts to its environment to enhance survivability. In a war zone, the unsafe body and mind subconsciously adapt to a dangerous environment in new ways, such as waking up suddenly at a small noise, always being on high alert, or hesitating to trust people. The longer someone remains in a dangerous environment, the more difficult it will be for them to shed their adaptations when they return to a safe environment like home. Such adaptations are oftentimes the symptoms of a psychological injury that can make a return to work, school, and family life challenging.

There are methods and treatments available to address the psychological traumas that can afflict local national workers who worked in dangerous environments. Depression, anxiety, adjustment disorder, and post-traumatic stress disorder (PTSD) can all be identified through psychological evaluations and treated with therapies, medication, and more.

Workers’ compensation insurance through the Defense Base Act considers more than just physical injuries. In many cases, local national workers can qualify after suffering a psychological injury related to their work as contractors in support of the U.S. Government, which provides them with medical treatment and lost wages, sometimes up to thousands of dollars per month in compensation.

You may have a psychological injury and be eligible for Defense Base Act insurance if you are:

• Having difficulty sleeping, nightmares, or waking after only a few hours of sleep;
• Startling from sudden noses that do not bother others around you;
• Having angry outbursts with family and friends over relatively small matters;
• Having difficulty maintaining personal or social relationships;
• Suffering from frequent headaches or migraines;
• Experiencing paranoid thoughts or negative self-views;
• Feeling persistently bothered by a feeling of impending doom;
• Experiencing flashbacks or unwanted memories of events experienced as a contractor; and/or,
• Avoiding certain people, places, or activities to prevent a flashback or similar symptoms of post-traumatic stress disorder (PTSD).

Filing for Defense Base Act Insurance Benefits

Military Justice Attorneys proudly offers our legal services to local nationals who want to see if they can use Defense Base Act insurance to cover medical bills and lost wages after they were hurt while completing contracted work for the U.S. Government. We work at no cost to local national SIV holders or refugees, so our legal counsel remains available to more people who need it. Defense Base Act insurance benefits are available to eligible local national employees/workers, regardless of nationality, country of residence, or passage of time following employment, so it is always worth exploring your options with our help if you need these benefits.

If you worked as a contractor outside of the United States, and you want to know more about these valuable Defense Base Act Benefits, Military Justice Attorneys wants to hear from you. Call (843) 773-5501 and ask to speak with one of our attorneys. During a free consultation, you can find out if you are eligible for benefits, as well as what to do next if you are.