Category Archives: AWOL/UA

CLE: US Army AWOL – Tips for civilian defense attorneys

The Military Law Task of the National Lawyers Guild along with the Southwest and Texoma regions of the National Lawyers Guild are proud to present a continuing legal education seminar.

US Army AWOL – Practice tips for Civilian Attorneys

Presented by James M. Branum

[notification type=”info”]Update: The presentation can now be viewed here, free of charge, or on MLTF’s Ustream channel.. [/notification]

“AWOL in the Army” version 3 now available

Photo by James M. Branum

Photo by James M. Branum

The MLTF has just released version 3 of James M. Branun’s AWOL in the Army memo. Branum is currently co-chair of the MLTF Steering Committee. The memo includes a flow chart and addendum on AWOL/UA policies for other branches

“This edition of the article includes lots of new information and resources,” Branum explained, “such as (1) a better flow chart, (2) new info on new efforts by the Army to apprehend AWOLs, (3) more discussion on alternatives to court-martial, (4) discussions on mitigation/defenses to absence offenses, and (5) updated information on policies and practices currently used at the Fort Sill and Fort Knox PCF’s (personnel control facility)”

The addendum is by Kathy Gilberd, an experienced military law worker and GI Rights counselor currently serving as MLTF co-chair, on AWOL/UA policies for the Navy, Marines, and Air Force.

The 34-page memo can be downloaded as a PDF at: http://nlgmltf.org/wp/downloads/memos/awol.v3.pdf

I ain’t singing, Charlie

What to do when the FBI contacts you

When sons and daughters go AWOL from the military, parents frequently have feelings of both relief and distress. Although more than willing to help their children, they worry about the consequences of their loved ones “hiding out” in their homes. Many telephone calls and requests for advice come in from parents in this situation wanting to know if it is legal for them to let their children stay or hide out at home; is it dangerous for their other children; and, whether they have to answer questions coming from either military or federal authorities. Are they, in effect, aiding and abetting, their children in illegal activities?

The first rule is to NEVER LIE to federal authorities. You do not have to answer their questions, however, whether they call on the phone or whether they show up at your front door. ALWAYS refer the police, sheriffs, MPs, FBI officers to your lawyer. Again, do not answer any questions. Give them the name and phone number of your lawyer.

You are not under any obligation to turn your child in or hand them over to the police, mps, FBI, or sheriffs. You are under no obligation to explain anything to them.

We know from experience that not to answer a federal official is difficult. They are big and imposing. They are good at making you feel guilty. Practice saying: “Please contact my lawyer. Her phone number is …” over and over again with family members and in front of a mirror. If you don’t have an attorney, ask the marshals or police for a business card and explain that your lawyer will contact them. If you ever do get a lawyer, tell them about the marshals.

You might find it difficult to leave the Army

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.

Hell No, We Won’t Stay: Military Reservist Resistance Grows

By Marti Hiken & Kathleen Gilberd

“My husband wants out,” says Martha. “That’s all there is to it. If they won’t let him out, he’ll go AWOL.”

This is a common complaint that military counselors and lawyers hear from GIs, their families and friends. Although the Department of Defense reports that only about 700 GIs have gone absent without leave (AWOL) since the beginning of the current war in Iraq, those involved in counseling and representing GIs know that the number is in the thousands. Dissatisfaction and objection among US troops in this current war has increased steadily, reflected in growing numbers of GI’s seeking discharge or going AWOL. In response, a national network of military counselors formed the GI Rights Hotline to offer information and guidance about discharges, GI rights, and similar issues.

Members of the Hotline include the Central Committee for Conscientious Objectors, the National Lawyers Guild’s Military Law Task Force (MLTF), the Center on Conscience and War (formerly NISBCO), Quaker House, and other local and regional counseling groups. The Hotline was formed in the mid-1990s in response to the changing nature of the US military and its creation of easily-activated military bases throughout the world.

It took peace and anti-war activists six years to organize a resistance to the Vietnam War. During Gulf War I, it took six weeks before we had the military counseling centers up and running. When this Gulf War began in 2002, we were already prepared.

In 2003, the GI Rights Hotline received 30,000 calls. About 15% of those were from GIs seeking Conscientious Objector claims; 30% were from AWOLs; and the rest ran the gamut from discharge information to Post Traumatic Stress Syndrome (PTSS). This year the calls are coming in at a rate of 3,000-4,000 per month, not including calls directly to member organizations of the GI Rights Hotline.

Sample Calls for Counseling

To better understand the nature of our work, it is useful to review the kinds of calls one member group of the Hotline—the Military Law Task Force—receive on a typical day.

For example, a military counselor in Northern California called seeking the name of a lawyer in Kansas. Apparently, MPs and sheriffs in Kansas have found it their duty to seek out AWOL GIs, capture them, stick them in jail, beat them brutally and then ship them back to their units. Presently 25,000 Marines serve in Iraq, and the number going AWOL continues to climb.

A second call follows almost immediately and concerns another Marine, this one AWOL and suicidal in Iowa. Although his psychologist told the soldier’s commanding officer that the soldier intends to kill himself if he has to go back, the commander says he wants him to return immediately, saying he’ll deal with the problem. The counselor says they need a lawyer in Iowa and San Diego. Fortunately, we locate a MLTF lawyer in Iowa and a good counseling group with legal support in San Diego.

The next phone call is from a GI in Alaska who wants to know if Canada is an option. He’s received deployment papers for Iraq. He is connected to a MLTF member in Alaska.

The MLTF received a call from the wife of a reservist just back from Iraq. She reported that her husband suddenly charged into their bedroom thinking that his wife was an Iraqi about to shoot him. Apparently he suffered from PTSS, which can be suffered for years when soldier’s brutal memories are triggered. She was asking us what she should do about it.

Additional calls sought information about disability, AWOL concerns, draft resistance and conscientious objection. There are days in which MLTF receives one telephone call every 15 to 20 minutes.

Reservists and Families Speak Out

Staff Sargent Camilo Mejia is the first soldier known to be tried for desertion after service in combat in the current Iraqi conflict. Although he sought status as a conscientious objector, Camilo was found guilty and sentenced to a year in the brig. In his CO application, he described the conditions of detention and treatment of Iraqi prisoners, including instances where soldiers were directed to “break the detainees’ resolve.” He also described witnessing the killing of civilians, including children.

Nancy Lessin, the founder of Military Family Speaks Out, and a member of the Bring Them Home Now! Campaign, called the MLTF because Camilo is being moved to Fort Sill, Oklahoma. It’s an isolated area, offering little protection for a GI resister. We contacted an NLG lawyer and law students in Oklahoma City. We called Camilo’s family to give them the names of the Oklahoma contacts and then began to coordinate the support system for Camilo before he arrives at Ft. Sill.

Because Camilo is a Costa Rican citizen, born in Nicaragua, we must also call immigration defense lawyers to find out about Camilo’s deportability. He has a green card and is a permanent resident.

Factors Behind Military Resistance

Camilo’s case is perhaps the most reported, but it is far from isolated. The increasing opposition to the US war in Iraq by military personnel arises from many factors, including:

• Access to information critical of the invasion and occupation, including analysis about finding no weapons of mass destruction or evidence of imminent threat;

• Mistreatment of Iraqi civilians and damage to basic living structures;

• Mistreatment of US forces by an overzealous and war-thirsty administration.

As in the past, many GI’s have come to oppose the war in Iraq as a result of their own experiences in it. Men and women deployed to Iraq are reminded daily that they are viewed as part of an army of occupation. Images of US forces as “liberators” have long passed, replaced by graffiti, rocks and bombs intended to repel an unwelcome occupier.

Military personnel also have access to information that contradicts their original marching orders. Mainstream news sources report that no WMDs have been found, despite earlier administration claims. And although the Bush administration has carefully hidden military coffins from media scrutiny, these personnel know the toll this action is taking on the lives, limbs and minds of their fellow soldiers.

News of brutality towards Iraqi citizens and torture of prisoners has shaken many soldiers who previously supported the vision of this war offered by their leaders, despite the incredible barrage of racist ideology and images presented by the Pentagon and American news media.

Other soldiers and sailors have come to question military policy through mistreatment and mismanagement of its own troops. Current military strategy—including commitments to long-term occupations with over 311,000 publicly acknowledged servicemembers deployed in over 120 countries—has led to “manpower” problems and forced troops into lengthy and unwanted duty. “Stop loss” policies allow the military to retain soldiers beyond their regular discharge dates (although early discharges, such as conscientious objection, are generally unaffected). Tours of duty in Iraq are longer than anticipated, and the military has departed from past practice by ordering many combat troops into second and even third tours in combat zones.

Reservists, who reasonably expected that they would be used as reserve forces, have found themselves an integral part of the war from the outset. National Guard members who, with equal reason, thought they had enlisted to help disaster victims or maintain order at home, have been activated and deployed to Iraq.

The Department of Defense reports that 40% of the fighting force in Iraq is comprised of reserve forces. This is not only a “backdoor draft,” it is also a “senior draft.” Reservists tend to be older and have established positions in their communities. As a result of this war, some are losing their businesses. Their families are forced into poverty. Children haven’t seen their parent(s) for months. Tens of thousands become “militarized” by this war.

Another result of mass deployments and the senior draft has been the military’s failure to recognize personal, medical and family problems that make activation or deployment a crisis for many servicemembers and their families. Military counseling groups report that many clients are being sent to Iraq with serious physical or psychiatric problems. For many, this lack of concern for their health, safety and families has led to questions about broader policies and the war itself.

Massive deployments, poor planning, and lack of concern for the troops creates logistical problems as well. Equipment does not always follow the troops; even basic supplies may be inadequate; medical care is unreliable in many areas. When the Army recently examined the disproportionate number of suicides among soldiers in Iraq, it found that insufficient mental health personnel and spotty distribution of anti-depressant medications were a significant part of the problem.

At the same time, the problems of the first Gulf War—use of depleted uranium in tanks and shells and use of questionable vaccines, for example—have not been corrected, so that soldiers face the same likelihood of Gulf War syndrome or undiagnosed physical and neurological problems.

Individual and Collective Dissent

The result of all this is greatly increased frustration and anger within the military. Counselors and attorneys are hearing from growing numbers of conscientious objectors. While public resisters are few, the number of soldiers and sailors going AWOL or seeking discharge continues to grow. Large numbers of GI’s have spoken to reporters or sent home letters expressing their disagreement with the war or their frustration over the conditions in which they are forced to live and fight. To read the latest letters from GIs, go to the websites of Veterans for Peace (www.veteransforpeace.org) or Military Families Speak Out (www.mfso.org).

In many cases, soldiers demonstrate resistance individually rather than in collective action. This is in large part the result of the military’s capacity for harsh retaliation and its frequent refusal to respect these civil liberties available to soldiers. The possibilities of private, and sometimes anonymous complaints and protest over the internet are conducive to individual dissent.

Dissent is still of great value, and it is paralleled by a more collective effort of the families of soldiers who serve or have died in Iraq. For example, Military Families Speak Out has educated many soldiers and civilians about the reality of the war. Over time, collective opposition within the military seems increasingly likely, if it is provided the legal and political support of the anti-war movement. Counseling and educational efforts are essential for servicemembers who are otherwise isolated and vulnerable within the military.

Despite the many challenges faced by networks that counsel soldiers and sailors, these groups continue to educate and guide questioning military personnel through a difficult process. For many military counselors and attorneys, educational work with GI’s, counseling, and support for resistance within the military remain an integral part of anti-war efforts. Soldiers and sailors who speak out against the war or resist combat service are a potent symbol of opposition to the war. Those who seek discharge or go AWOL are a growing obstacle to the military’s smooth functioning.

Marti Hiken and Kathleen Gilberd are co-chairs of the Military Law Task Force of the National Lawyers Guild. Gilberd also works with San Diego Military Counseling Project.