Author Archives: News Editor

Cushing v. Tetter:[1] Still a Good Tool in the Box

By Alison Carter

This article was published in the Spring 2016 issue of On Watch. 

This article explores a goldmine of findings in a 1979 federal district court case where an active duty Navy airman, alleging suicidal tendencies, successfully argued for a preliminary injunction.  The injunction prevented the military from returning him to his unit before he had an opportunity to exhaust all administrative options available for challenging the order to return to duty.

Despite its age, it appears that this case has withstood the test of time and contains powerful holdings that are applicable to many fact patterns encountered in G.I. Rights advocacy.[2]

When the Mother’s Military Status Punishes the Child: Supreme Court Watch on the Feres Doctrine and the Ortiz Case

by Deborah H. Karpatkin

Published in the Winter 2016 issue of On Watch.

According to a recent decision by the Tenth Circuit in Ortiz v. U.S. ex rel. Evans Army Community Hosp.,[1] the child of a servicemember mother injured in utero can’t bring her own claim for injury under the FTCA because of the Feres doctrine.  The Ortiz case is now before the Supreme Court on a petition for certiorari.  This article gives a brief overview of the case and the issues before the Court – it is not intended to be a comprehensive discussion of the Feres doctrine and cases.

The Military after DADT

By Jeff Lake

Published in the Winter 2016 issue of On Watch.

As this article is being written, the military’s policy of “Don’t Ask, Don’t Tell” seems like a relic from the distant past.  It has now been over five years since the repeal of the policy, so an update does not appear to be necessary.  However, issues remain concerning the participation and inclusion of LGBT people in the military.  This article will summarize these issues and explore the possibilities going forward.

Military Sexual Assault Policy Updates

By Kathleen Gilberd

Published in the Winter 2016 issue of On Watch.

MLTF Resources on Military Sexual Violence

MLTF has an extensive guide to Military Sexual Violence available on our website.

The MSV Guide was published in 2014 (prior to the changes noted in this article, but will soon be updated to reflect them). Currently only in digital format, once updated, it will be available in print, in limited quantities (unless additional funding can be obtained.) We are grateful to the National Lawyers Guild Foundation  for the funding that made this production possible.

Visit militarylawhelp.org to find this and other material on GI rights and military law.

If after reading our documents, you still need legal counsel to address your issue, please call us for a referral.

The recently-enacted 2016 National Defense Authorization Act (NDAA; Public Law 114-92) includes a number of new policy provisions on military sexual assault, most of them designed to facilitate changes made in prior Authorization Acts.

Section 531 of the 2016 NDAA expands and details a victim’s right to submit a petition for a writ of mandamus to the military Court of Criminal Appeals (CCA). The section amends Article 6b, subsection E, of the UCMJ to allow such a petition when the victim believes rights afforded under the following are violated during a preliminary hearing (Art. 32) or court-martial:

  • 6, UCMJ (which includes other victim’s rights provisions)
  • 32, UCMJ
  • Military Rule of Evidence (MRE) 412, which concerns admission of evidence of a victim’s sexual background
  • MRE 513, regarding the psychotherapist-patient privilege
  • MRE 514, regarding the victim advocate-victim privilege
  • MRE 615, covering exclusion of witnesses

Further, if the victim of an offense under the UCMJ is subject to an order to submit to a deposition, notwithstanding his or her availability to testify at court-martial, the victim may petition the CCA for a writ of mandamus to quash the order.

These petitions for writ of mandamus are to be forwarded directly to CCA by procedures to be prescribed by the President, and “to the extent practicable, shall have priority over all other proceedings before the court.”

Women in Combat: A historical and political analysis of “change” in the U.S. Armed Forces  

By Kathy Johnson and David Gespass

Published in the Winter 2015 issue of On Watch

Despite dramatic changes in social mores and subsequent legislative reforms, capitalism generally, and the U.S. version in particular, has shown a remarkable ability to adapt and morph in the interest of self-preservation. Sometimes, the changes lead to more openness and democratic rights. Other times, they increase repression or deception. At all times, they are intended to insure that the rich stay rich and get richer, sometimes by increasing the income of U.S. workers (generally at the expense of others around the world), more recently by concentrating ever-greater wealth into fewer and fewer hands.