Category Archives: On Watch Content

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.”

Op-Ed: Military Sexual Violence rooted in military culture

Curbing Convening Authority Power to Alter Court-Martial Convictions Is No Solution, Is Insufficient and Misses the Point

David Gespass

By David Gespass

There is no denying that “sexual assault” (a euphemism for rape and attempted rape) is a serious problem within the military. Indeed, it has always been a problem, though it may now be more serious from the point of view of military authorities because victims, increasingly, are other members of the armed forces rather than civilians.

To date, the solutions that have been proposed are, from the military, more training and, from various civilians (most notably, New York Senator Kirsten Gillibrand), stripping convening authorities of their power to alter court-martial convictions and sentences. The former has been spectacularly unsuccessful. The latter highlights the tension between two important ends, those of protecting people from sexual violence and protecting the due process rights of individuals accused of crime.

Thus far, there has been near universal acknowledgment that the problem exists but little has been done to address, much less solve, it. Indeed, even as sexual violence appears epidemic, elected officials tie themselves in knots praising our men and women in uniform while, at the same time, condemning perpetrators of such violence yet refusing even to consider that the culture of the armed forces promotes it. This is not to say that everyone who enlists is bound to become a predator. Rather, the soil of military culture is one in which potential predators can be nourished and thrive. And our elected officials are loath to suggest such a thing for fear of being criticized as disparaging “our” troops.

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

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.

What’s new in Conscientious Objector law?

Deborah Karpatkin

By Deborah H. Karpatkin

The years 2005-2011 saw a number of federal court cases considering habeas corpus applications from military conscientious objectors.  These cases were ably considered in Steve Collier’s excellent article in the March 2011 issue of On Watch.

Today, with the military reducing its personnel and combat activity, we are, not surprisingly, seeing fewer CO applications. Indeed, we know of no reported habeas cases from military COs after the Fourth Circuit’s decision in Kanai v. McHugh.1

Nevertheless, a review of recent cases may be valuable for practitioners and counselors, in these four respects.

First, each of the four appellate CO habeas decisions of the Afghanistan-Iraq era – Aguayo v. Harvey, Hanna v. Secretary, Watson v. Geren, and Kenai v. McHugh (citations at endnotes 2, 7, 9, 13, respectively) – has generated some additional law. Attention to these leading CO cases offers some insight into how courts will apply their holdings in future CO litigation.

Second, recent case law offers opportunities for practitioners and counselors seeking remedies for the hardships faced by unsuccessful COs.

Third, courts continue to be unwelcoming to cases challenging selective service registration on CO grounds.

Finally, the term “conscientious objector” continues to have legal vitality in a range of non-military CO cases, which in turn may influence the judges who decide our military CO cases.