Category Archives: Military Justice System & UCMJ
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.
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.
National Lawyers Guild Submits Comments for Improving Military Justice System to Department of Defense Military Justice Review Group
NEW YORK — The National Lawyers Guild (NLG) today submitted comments to the Defense Department’s Military Justice Review Group as part of its comprehensive review of the military justice system. Recommendations to improve the system include eliminating the “convening authority” as the near-absolute final arbiter of what constitutes justice in a given case. The NLG also calls for eliminating criminal liability for acts that are purely military offenses, and for clarifying the effect of a conviction by summary court-martial.
“We are gratified that this review is taking place, as changes in the court martial system are long overdue. We do not believe that anything less than a complete restructuring of the way the military handles offenses can be adequate. We have, therefore, focused on large changes, rather than the many small details that could lead to some incremental improvement without altering the basic inequities that lead so many to see military justice as an oxymoron, said David Gespass, NLG past president and one of the authors of the comments.
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.
Testimonies in ‘Fort Hood Report’ recount unethical health care practices, disregard of medical advice, violations of policy
This Memorial Day a national group of Iraq and Afghanistan veterans marked the solemn holiday by exposing a series of unethical healthcare practices at the largest Army post in the country, Fort Hood, that puts soldiers’ lives at risk and compounds the pressure on an overwhelmed VA. Practices such as commanders, with no medical training, deploying soldiers against a doctor’s orders are one of the many shocking discoveries that is revealed in the groundbreaking report ‘Operation Recovery: Fort Hood Soldiers and Veterans Testify on the Right to Heal‘ (also referred to as the Fort Hood Testimony Report).
The report is the product of months of investigation and compilation by its authors: Iraq Veterans Against the War (IVAW), Under The Hood Café and Resource Center, and Civilian Soldier Alliance. The Military Law Task Force contributed legal support, analysis of regulations, and assistance in developing recommendations. One of the individual authors noted that the Task Force’s participation was critical to the strength of the report.
The Fort Hood Testimony Report is the result of three years of sustained outreach in the Fort Hood community, and contains 31 in-depth testimonials from Fort Hood veterans and soldiers. Additionally it has a series of findings and recommendations for the Army and Congress. This report provides a snapshot in time of a military base at the height of the deployment cycle all the way to the recent drawdown and a window into the challenges that service members face in a military that has been at war for more than a decade.
Expressing amazement at the negligent deployment practices soldiers experienced, Fort Hood Army veteran and a testifier in the report Chas Jacquier says “Prior to going, our unit was so low in numbers that we actually took soldiers into Afghanistan who were on crutches. We’re walking fifteen, twenty cliffs a day at 10,000 feet elevation through the mountains. The guy just got off crutches and you expect him to be able to do that?”
Just a few of the findings include:
- Overmedication in the form of routinely deploying service members who are prescribed with psychotropic drugs
- Aggressive disciplinary measures and discharges of soldiers since the drawdown, often for displaying symptoms of PTSD or Traumatic Brain Injury (TBI)
- An almost total lack of enforcement of base policies on stigma and respect for a doctors recommendation
MLTF member (and past co-chair) James M. Branum, an attorney in Oklahoma City, was a guest on Democracy Now! to talk about Bowe Bergdahl and the legal rights of war resisters. “There Were No Good Options”: Bergdahl Should Get Honorable Discharge, Says Lawyer. Follow link for transcript; video after jump.