Category Archives: Military Law Practice & Training

New Military Transgender Policy

By Kathleen Gilberd

At the end of June, Secretary of Defense Ashton Carter announced a change in military policy that will allow transgender individuals to serve openly in the military. Under previous policy, they were prohibited from enlisting in the service and subject to administrative discharge if they began gender transition or simply announced their desire to do so. With Directive-Type Memorandum (DTM) 16-005, “Military Service of Transgender Service Members” (http://www.dtic.mil/whs/directives/corres/pdf/DTM-16-005.pdf), and DoD Instruction 1300.28, “In-Service Transition for Transgender Service Members”, DoD has now established an initial policy for retention, service and, eventually, enlistment of transgender individuals. While the new policy has significant limitations, and places much control in the hands of doctors and commanders, it represents a real victory for those who fought against the old policy.

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]

Hobby Lobby and the Religious Freedom Restoration Act: new arguments for military Conscientious Objectors?[1]

By Deborah Karpatkin and Peter Goldberger

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

Much has been written about the Hobby Lobby cases, both before and after those important June 2014 Supreme Court decisions.[2]  Those favoring robust enforcement of the Affordable Care Act (“ACA”), and full access to reproductive services under the ACA, were understandably concerned by the Court’s ruling that the individually held sincere religious beliefs of the owners of private corporations would allow the corporations to avoid providing contraceptive services to their employees and the employees’ dependents, notwithstanding the requirements of the ACA regulations.  Those concerned about legal protections for religious liberty looked to the cases for their favorable decision on whether closely-held, for-profit corporations would to enjoy “free exercise” rights under the 1993 Religious Freedom Restoration Act (“RFRA”)[3] based on their owners’ sincere religious beliefs.

Non-Judicial Punishment: Middle Ground Between Admin Proceedings And Courts-Martial

 This material appeared in the June 2014 issue of On Watch (Volume XXV No.2). The PDF version of the issue is available in the On Watch archive, and a stand-alone memo version is pending. 

James M. Branum on Democracy Now, June 4 2014

James M. Branum on Democracy Now, June 4 2014

by James M. Branum

In this article I will be discussing an important area of the UCMJ, Article 15 (NPJ: Non-Judicial Punishment)1. NJP is used by commanders to deal with misconduct issues that are too serious to be dealt with using administrative corrective procedures, but are minor enough to not necessarily be appropriately handled through a full court-martial prosecution.2

While it is often neglected as area of concern by many attorneys, this is a mistake. NJP is one of the most powerful disciplinary tools used by commands to punish servicemembers for “crimes” while avoiding a formal court-martial proceeding.3 As such, the practical ramifications for servicemembers facing NJP can be serious.

In this article I will review the statutory and regulatory basis for NJP and then move to a practical discussion of tactics that can be used in dealing with a possible NJP. Much of this discussion will be relevant for all branches of the military, but I will only be discussing the branch-specific regulations of the Army. If your case involves another branch of the military, it is essential that you refer to the appropriate branch-specific regulations.

Discharge Upgrade CLE at NYU School of Law on July 22

veterans advocacy projectOn Tuesday, July 22, 2014, the Urban Justice Center’s Veteran Advocacy Project (VAP) will be holding a free Discharge Upgrade CLE at the New York University School of Law from 9:30AM to 4:30PM.

Instructors will include MLTF members David Addlestone (Co-Director NVLSP 1989-2003, in-person), Kathleen Gilberd (Co-Chair, NLG Military Law Task Force, via Skype), and Becca von Behren (Swords to Plowshares, via Skype), as well as Liam McGivern (Legal Services of Greater Miami, via Skype) and Captain John Reeser, USN (President, Naval Discharge Review Board, in-person).

Priority seating will go to New York City attorneys who pledge to take a pro bono discharge upgrade case through the VAP Discharge Upgrade Clinic. Continental breakfast and lunch will be provided. The CLE will be taped and placed on the Internet at a later date. Please RSVP/register via email to veterans@urbanjustice.org