You might find it difficult to leave the Army

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By Marti and Luke Hiken
NLG Military Law Task Force Steering Committee Members

For an active duty GI or reservist to get out of the military during peacetime is rather difficult. During wartime, especially during a period of an unjustified war of conquest, like the US assault in Iraq, it is even harder. While getting out is difficult, though, it is not impossible. Knowing the law can level the playing field.

The following are the sorts of questions the MLTF (Military Law Task Force of the National Lawyers Guild) receives each day:

1) “I signed up for the Delayed Entry Program, but have changed my mind and don’t want to go in. My recruiter told me to report for duty, and to tell my commanding officer that I’ve changed my mind. Should I do what he says?”

2) “I was just activated into the reserves. My wife was pregnant, and my C.O. (Commanding Officer) gave me two weeks temporary leave to help her because she wasn’t feeling well. It turns out that she might lose the baby if she doesn’t have constant help at home, but my C.O. says that if I don’t return to base immediately, he’ll declare me AWOL (absent without leave) and have me arrested. But there’s no one else to help my wife because our parents are sick, and she can’t afford a full-time nurse. What should I do?”

3) “I’m a marine, and I already served a 9-month tour of duty in Iraq. My best friend over there was killed, and another guy in my company committed suicide because he couldn’t take the constant killing we saw. When I returned to the US, I realized that I just couldn’t go over there again. Now they want me to go back on a second tour of duty. I’ll go UA (unauthorized absence) if they won’t let me out. What can I do?”

4) “My son is AWOL and living in our house. Can we be arrested for letting him do that? He’s falling apart emotionally, and needs the help of a doctor just to make it through each day. He’s totally unable to deal with his problems. What should we do?”

5) “I’m a conscientious objector, and I want to apply for a discharge from the reserves. My C.O. told me that they won’t process my application while I’m not activated, and that I should wait until I get to Iraq to file for the discharge. Is that accurate?”

While the answers to these questions can be difficult to know, there are certain principles that apply in every case. These principles are set forth below:

Principle I) Find a competent counselor or lawyer to assist you in planning and documenting the arguments you have for obtaining a discharge. Prepare the paperwork needed to prove your case and be prepared to take any denial up the chain of command, and even into federal court.

Principle II) Document your case, i.e. create a paper trail that the military can’t ignore or pretend you never presented. In other words,
don’t try to talk your way out of the problem. The military is much better than you are at talking and promising. The bottom line is that if you can document and prove that you qualify for a discharge, the military has to give it to you. If they can talk, bluff, bluster or lie their way out of obeying the law, they will do so. NEVER rely on their false promises or threats. Make them put in writing why they are or are not granting you the relief you seek. Always make sure that someone (your lawyer, counselor, family member) has a copy of the documents you’ve given to the command, so that when they deny you ever gave them anything, or say they “lost” them, you can prove that you did give them documentation of the reasons for discharge.

Principle III) Know what alternatives are available, and what the directives (Department of Defense Directives) and/or regulations (each service has it’s own regulations implementing the DoDs) say, and what the procedures are that the military must follow. Be aware of the options available to you, and pursue the strongest one. DoD 1332.14 sets forth all of the possible discharges available to enlisted personnel. Read each of the choices available, figure out how to show that you qualify for the one(s) you’re seeking and start the process for initiating a discharge. Find the regulation for the service you’re in that implements the way to seek that discharge, and start the processing. Here are some of the websites containing valuable information concerning military law and discharges: www.nlgmltf.org and www.girightshotline.org

Familiarize yourself with them, and learn how to use them.

The most common discharges are:

1) GI is medically unfit: See Chapter 3 of AR 40-501 for descriptions of conditions that require the military to discharge you. Ask your family doctor (who knows your medical history) if you have any of the conditions set forth in the Standards. Document the condition, and seek a Medical Review Board if you qualify.

2) Hardship/Dependency: A careful reading of DoD 1332.14, and the relevant service regulation provides guidance for how to document the need for discharge and what procedures the command must follow in approving or discharging the GI.

3) Conscientious Objector: This discharge is trickier than it looks. It requires more than an opposition to the war the US happens to be fighting at any one time. While the “religious” aspect of the discharge is relatively easy to meet, the other prerequisites for the discharge are not. The application forms are extremely misleading and subtle, and contain many traps for the unwary. Before applying for a “C.O.” discharge, the GI should consult with counselors or lawyers who are familiar with the law regarding conscientious objection, and the GI should prepare draft answers to the questions that are asked on the application.

4) ELS – Entry Level Separation: This discharge applies to Gis who realize in the first 180 days of enlistment that they are not going to make it in the military. The regulations describe what kinds of problems you must demonstrate to obtain this discharge. The advantage of it to both the military and the GI is that there is no record of service, no bad discharge, and no financial obligations to the military or government resulting from the discharge.

5) DEP release: This is not really a “discharge,” because a person who signed up for a DEP program is never really “in the military” until and unless (s)he reports for induction. Thus, in 99% of the cases, a DEP candidate can merely send a letter to his/her recruiter/military service indicating a change in circumstance that results in their refusing to go into the military.

6) Discharge in lieu of Court-martial: Many GIs are discharged because they voluntarily agree to be discharged with “bad paper” (OTH discharge: other than honorable) instead of facing court-martial and fighting the charges that have been made against them. When and whether to accept an administrative discharge associated with misconduct, criminal activity or other misconduct is a complicated decision, and should not be made without the help of an experienced counselor or lawyer.

Principle IV) Don’t rely upon or believe any denials of discharge requests based upon verbal explanations or rejections. Make the command put their denials, and the reasons for them in writing. Realize that commanding officers, like recruiters, lie all the time, and will do almost anything to stop you from showing others how they, too, can get out of the service. Demand that denials and refusals to process your requests for discharge be put in writing.

Principle V) Pursue all administrative appeals and remedies provided for in the DoDs and regulations. Know and meet all time limits and procedures for appealing wrongful denials of your request. Most C.O.s are bullies (or their Staff Sergeants are) and they are used to yelling at young soldiers and intimidating them into dropping their requests for discharge. By knowing the regulations, you know what procedures the C.O. is obligated to follow, and you can document that those procedures were not followed.

Principle VI) Evaluate the desirability and likelihood of success in a federal habeas corpus action. Throughout the discharge process, be aware that the federal courts have jurisdiction to determine if the military followed their own internal procedures, and complied with the law regarding the particular discharge. If you can document that your C.O. abused his/her discretion in denying your request, or that the military failed to overcome the facts presented in your paperwork as to why you deserved a particular discharge, the courts have the power to order the military to discharge you.

Principle VII) Use Congresspeople, the media, the Inspector General, or Article 138 of the UCMJ (Uniform Code of Military Justice) to bolster and support your case. There are advantages and disadvantages to using any of these types of resources to strengthen your case. Speak with your counselor or attorney to decide when to use any or all of them.

Principle VIII) Use the internet to locate the groups, organizations or individuals who can best help you with your problem. There are many groups, such the MLTF, CCCO, the GI Rights Hotline, Center on Conscience and War, Quaker House and many others that have websites with tons of information about getting out of the military. You are the best person to decide what is best for you, and knowing what the law says, what it means, and how to implement it, is your best protection against lies and deceit. Become a specialist in the facts of your own case, and work closely with a counselor or lawyer to develop an overall strategy determining your course of action – and, to win.