2013-08-28-Military Justice
Seminars@Hadley
Blinded Veterans’ Guide to the
Military Justice System
Presented by
Tom White – Clinical Director, Veterans Legal
Support Center & Clinic, John Marshall Law School
Moderated by
Larry Muffet
August 28, 2013
Larry Muffet
Welcome to Seminars@Hadley. My name is Larry
Muffet. I’m a member of Hadley Seminars team and I
also work in Curricular Affairs. Today’s seminar topic
is the Blinded Veterans’ Guide to the Military Justice
System. Our presenter, today, is a distinguished
lawyer and Army veteran. Tom White is the clinical
director of the Veterans’ Legal Support Center and
Clinic at the John Marshall Law School. He is also a
former JAG officer and taught Constitutional Law at
Westpoint. Tom is a graduate of Purdue University
and the Valparaiso University School of Law. Today,
Tom will be sharing his knowledge and insights on the
Military Justice System.
©2013 The Hadley School for the Blind
Page 1 of 33
2013-08-28-Military Justice
Tom White
So that’s a little bit about my background. It’s a little
bit of everything, all over the place. The thing about
being a JAG officer and as far as our knowledge, we
have a lot of knowledge about an inch deep and a
mile wide, especially in the Army. The Air Force, I’ve
had an opportunity to spend a year studying with the
Air Force JAG officers. Also, with Marine JAG officers
and there was one Coast Guard officer in my Master
of Laws class.
And this Master of Laws was in Military Law and, of
course, it covers a wide range and one of those areas
being very important to the military because it’s a
unique system outside of our civilian system and that
is our Military Justice System, which just kind of like
my earlier officer time as a Military Intelligence
Officer. Yes, I know, typically Military Intelligence,
Military Justice, they’re an oxymoron.
I get that a lot and I hope, with some of the recent
events that have occurred and that have been
obviously publicized, that there has been a little bit
more education to the public about our system; but
there’s just such a lack of knowledge of the system.
Not just amongst civilians, but also our own military
personnel, who may have spent a 3 year term or 20
years and really never had to deal with the Military
Justice System; which is good in many ways.
©2013 The Hadley School for the Blind
Page 2 of 33
2013-08-28-Military Justice
But on the other hand, if they were in the chain of
command, they probably dabbled in it here and there.
The point being is that there’s such a small percent
and I just like to point out that at least the military
today, with all the services, we are the 1 percenters
that serve our nation. And I started that slogan on
my own. I was going to get t-shirts too. But we’re the
real 1 percenters and because of that, there is this
huge gap of knowledge of our system because we are
identified, and the Supreme Court has identified us
being a society within a society and that goes all the
way back to what is required of a good military and
that is obviously good order and discipline.
And then, obviously, the other things that the Army
and Air Force and the other services strive for and
that is duty, courage, those types of things that are
emphasized whether you’re going to your Air Force
training or your Army initial training. It’s still trying to
implicate those values and they’re important because
they all end up somewhere along the line intersecting
with our Military Justice System.
So to kind of give you a brief overview of some of the
things with the Military Justice System, how about a
quick story? Just three or four days ago, I was
listening to a particular news channel and they were
talking about the verdict in the Bradley Manning – I’m
©2013 The Hadley School for the Blind
Page 3 of 33
2013-08-28-Military Justice
sorry. We won’t name names. This guy who is our –
anyway. So in the Bradley Manning case, and there
was a Civilian Federal Prosecutor. Federal
prosecutor.
Now the thing about the military is we are also
federal. We use all the same federal rules of
evidence. However, our military punitive laws such as
– they’re different that you don’t have a civilian
equivalent. You know, you don’t show up to work at
Wendy’s or wherever, next time you show up, you’ll
get your walking papers. Well in the military, as you
know, you can be charged with FTR. Failure to
Repair, under Article 86, for a short not going to your
place of duty or if you’re gone for an extended period
of time, AWOL. And if you’re up to 30 days,
potentially desertion.
And all those could, potentially, end up with some
type of punitive action and we’ll get into that a little bit
more. The different types of punitive action as
compared to administrative action. But this
discussion on this news channel. So you had this
Federal Civilian Prosecutor talking about that Bradley
Manning had been sentenced to 35 years and that he
wasn’t going to serve the full term and all that and that
he would roughly serve 10 years or so.
©2013 The Hadley School for the Blind
Page 4 of 33
2013-08-28-Military Justice
And the thing about that – and what was great is the
former JAG, who was the other guest, let her continue
and she finished. And then the news anchor turned to
the gentlemen and said, so what is your take on this?
He said, well first I’d like to point out that the sentence
that he received in the military, it’s different as it
relates to the sentence. He will serve two-thirds of
that sentence guaranteed. If he’s good, while he’s at
Leavenworth, he will get five days credit per month for
good time credit.
The civilian prosecutor was a little embarrassed, but
it’s not unusual for even someone of that stature not
to be familiar with our sentencing guidelines because
they are different. Along with our punitive – our
Articles 86, AWOL. Again, this is the Uniform Code of
Military Justice. All services follow the UCMJ. So it’s
not just the Army. They all use the same manual for
Courts Marshall. The MCM.
Obviously, it’s available on the Internet. The manual
for Courts Marshall and those punitive articles along
with the rules of evidence are also included in there.
But in particular with some of those punitive articles,
they’re specific to the military and there’s a reason for
it and the reason I’ve already discussed. You have
Article 88. You cannot disparage the Commander in
Chief, the Vice President, Congressman, State
Representative, anything like that while you are in
©2013 The Hadley School for the Blind
Page 5 of 33
2013-08-28-Military Justice
uniform or really anytime. If you’re active duty, it’s a
big no no. And you can be punished for it and it has
occurred in the past as far as punishment for things
like that.
But there are also similarities too. I mean, we have
Article 118, which is murder. We have Article 120,
which is rape. Article 125, forceful sodomy. Then we
also have the catchall, which some of you may have
heard of, at least for officers. Conduct unbecoming of
an officer and a gentleman. I love that as a
prosecutor, because if I don’t have the evidence to
prove that say this officer at a particular fort – actually,
he was a Westpointer, got so drunk, he broke into the
golf course shed, somehow put on a dog collar and
decided to completely disrobe. And then he got a golf
cart and decided it was his job to go around and
collect all the flags on all 18 holes.
Now, obviously, your Military Police are always
Johnny on the spot on stuff like that and – yes, they
did catch him. They were curious why he was naked
as a J-bird and could not understand the dog collar.
Anyway, for something like that, it’s just much easier
for a military prosecutor just to charge the individual
with conduct unbecoming of an officer and a
gentleman because all I got to do is I got to say he did
or didn’t do something and by the way, it was contrary
to the good order of discipline or it was definitely
©2013 The Hadley School for the Blind
Page 6 of 33
2013-08-28-Military Justice
conduct unbecoming an officer. So you only have to
prove two charges. Again, that’s unique to the
military.
So let’s back up a little bit and let’s talk about
administrative actions. Administrative actions, they
fall up under the Military Justice System because it is
another way that essentially, the commander, which is
that – when we say commander, the first level
commander would be your company-level
commander. Your captain. That individual would
have in his or her authority to initiate either
administrative or punitive action.
So let’s start with administrative action. Action that
may – let’s say you showed up late to your physical
training formation or you showed up late to work.
What could the commander do in order to get that
young military member’s attention? Well, in his little
kit bag, he has a number of things. The one thing, he
could counsel the young serviceman and say, you
know, this will not be tolerated. He can do it verbally
or do it written, or he could do a little bit of what we
call corrective training and these things that I’m telling
you now, they’re all in the manual for Courts Marshall.
They’re all available and listed.
So what could the commander do? The commander
could say, okay, for the next week, you will show up
©2013 The Hadley School for the Blind
Page 7 of 33
2013-08-28-Military Justice
30 minutes early. You will stand outside the First
Sergeant, the Gunnery Sergeant’s office and you will
escort the First Sergeant or whatever over to your
place of duty or over to the physical fitness field. That
would be corrective training. Now, is that
punishment? No. What you’re doing is you’re
addressing, essentially, what would be considered his
inability to properly learn how the military life works.
You’re not at Kmart anymore or whatever. So you
want to get their attention and these administrative
actions allow you to do that and they can increase in
severity.
So this individual continues, does not learn from
escorting the First Sergeant. Well, administrative
action could also allow the commander, if the soldier
or sailor or airman is of the rank of E4 or below, the
commander administratively, just by filling out a form,
can administratively reduce the soldier one rank.
Why and how and what’s the basis? Well, he or she
is not acting or working at the level of their rank and
so, therefore, the commander can administratively
reduce them one grade.
Now, that may not sound like a lot, but when you’re
talking money, that’s a lot. And also, when you came
in with all your buddies, you’re all the same rank, and
now you’re one rank lower than the rest of your
buddies and they’re telling you what to do. That gets
©2013 The Hadley School for the Blind
Page 8 of 33
2013-08-28-Military Justice
to be a little bit, I guess you would say, irritating. Is it
punishment? No. That is administrative action
allowed within the regulations.
Some other more severe administrative actions. Let’s
say there is a pattern of misconduct where the soldier
is late for work, he shows up hot on a urinalysis or
what have you. There are available, as long as it’s
documented each time – because that’s the other
thing. In order for me to, as a former military
prosecutor, to handle a case like that, I would need
good documentation, if this is going before an
administrative board, to convince them that this
soldier should not be retained and should be
administratively discharged out of the Army. So there
are various regulations in all the services that allow
for this.
There are three types of administrative discharges.
There are only three and the first one would be
honorable. Shouldn’t pose any issues there. You
should have heard that one before. The second
being general, under honorable conditions; and the
worst of the three is being an other than honorable
discharge. Now why would that even matter? Well, it
matters in a few ways. It matters because on your
DD214 that the individual would get when they’re
forced out, it will reflect at the bottom, the reason and
it will state the type of discharge.
©2013 The Hadley School for the Blind
Page 9 of 33
2013-08-28-Military Justice
So when they go for employment or let’s say VA
benefits. That can have an effect on whether or not
they get employment, whether or not they’re eligible
for certain benefits because it all correlates. The VA
recognizes if you received an honorable discharge,
you’re eligible for all the benefits; but as you get a
lesser form of discharge, the availability of those
benefits decreases. This is where there’s another
area of disconnect between the barracks lawyers and
civilians and then those that actually practice in the
field, the poor JAG lawyers.
The other area that you can receive discharges – and
I’ve talked to you about administrative. Let’s move
over to punitive. And punitive action, there are a
couple of types of punitive action. Punitive action,
essentially, what it is, it is action that really can take
away your liberty and liberty is defined in many ways
but one that most people would associate it with
would be your freedom of movement. You being,
maybe, put behind bars or restricted to an area or not
allowed to go anywhere, that type of thing.
There are, essentially, two areas of punitive action.
Again, comparing it to administrative, those things
that I mentioned, those are not considered
punishment. Even though they may end up with a
negative-type discharge, it is not punishment in the
©2013 The Hadley School for the Blind
Page 10 of 33
2013-08-28-Military Justice
eyes of the military. So with punitive action, you have
what is called and it is covered in Article 15 of the
UCMJ and that is non-judicial punishment, otherwise
known as a Captain’s Mask or pretty much Article 15
in the Air Force and the Army and then I think the
Navy and the Marine Corps are both Captain’s
Masks.
Essentially, depending on the level of commander,
you can have a company-grade Article 15 or you look
at the possibility of 14 days of extra duty. Now this is
duty on top of once you’re done at work, then you’re
mopping the floors or waxing the floors or what have
you. Fourteen days restriction. Yeah. Holiday
season is coming up. Typically, as you probably all
know, this would be a four day weekend for most
people in uniform and, of course, unless you’re
deployed; but this would be a four day weekend and if
you are currently under restriction, you’re not going
anywhere and you’re going to sit in your barracks
room and contemplate your life or what have you.
Like in The Great Escape, the baseball off the
cinderblock walls. I don’t suggest that because
somebody’s going to complain and then the
commander’s going to show up. Okay, anyway. After
receiving 14 days restriction, you can be reduced,
potentially, by one grade and you can lose pay. That
would be company-grade non-judicial punishment.
©2013 The Hadley School for the Blind
Page 11 of 33
2013-08-28-Military Justice
The next level, which is much more severe, can be
given by your battalion-level commander, your
brigade-level commander, or and what I’ve seen in
and assisted in many, many, many times when I was
a legal advisor to the 5th Corps Commander, General
Officer Article 15s.
Yes, I have drafted and been the prosecutor in the
room when a full-bird Colonel receives an Article 15
and at that level, you can essentially – similar to 60
days restriction, 45 days extra duty, but the real hit is
typically what – as far as officers are concerned, the
real hit is the half-month’s pay for two months. So for
whatever screw-up it was you did, in this particular
case that I’m recalling happened to do with violation
of General Order #1 in the area of operations in
dealing with pornographic material and with that,
there were a number of officers that were involved
and they all received General Officer Article 15s. And
you can imagine, whether it’s a Colonel or a Major,
there were half-month’s pay for two months. That’s a
lot of cash for – well, you get the idea.
So that’s one area of punitive action. Now, it does not
typically lead to a type of discharge. It may if you’ve
got a really aggressive prosecutor who wants to take
that now and turn it around and maybe
administratively request that the officer resign their
©2013 The Hadley School for the Blind
Page 12 of 33
2013-08-28-Military Justice
commission. Which is possible and that sometimes
happens.
The other area of punitive action is one that have
been in the news. There’s different levels of courts
marshal. You’re dealing with the Summary Court
Marshal, which is the lowest-level courts marshal;
which really, all it is, it is a field-grade/General Officer
Article 15 on steroids because what you have is you
have the individual who has been accused of doing
the bad things in front of an independent selected
officer. Typically, a major or higher, kind of pleading
their case. That major or higher is not a JAG, has no
legal training. They just listen to the evidence and
they have at their disposal the potential to put that
individual in confinement for up to 30 days.
Confinement being, if you were say out in San Diego,
they have a facility out there. If you’re on the East
coast, they have a facility in South Carolina. In the
Midwest, you’ve got Fort Knox and always, the best
one is Fort Leavenworth. That would be a Summary
Court Marshal. You typically would do that if the
offense was serious enough that a field-grade Article
15 – it’s just not enough. And also, maybe the
individual already has an Article 15 and you want to
send a message.
©2013 The Hadley School for the Blind
Page 13 of 33
2013-08-28-Military Justice
You know, a lot of that, military just is sending the
message. I mean, I can’t tell you the number of times
being in court and listening to the arguments and
listening to commanders. They want to make sure
that, not to make an example, but to say if you do this,
there are repercussions. And that’s why you see in
some bays or barracks areas, you will see the results
of an Article 15 or the results of a Court Marshal
posted on the company or battalion or brigade board
to let people know what’s going on and what are the
repercussions.
So beyond a Summary Court Marshal, now you start
to get into the more serious Court Marshals that lead
to those punitive discharges. So that would be your
Bad Conduct Discharge Special Courts Marshal.
What we tend to call in the JAG community as a Big
Chicken Dinner. If you get a BCD, that also comes
with it a federal conviction. Which, you may say,
that’s not so bad. I got a federal conviction for
desertion. Big deal. Well, here’s the thing. What the
military prosecutor will do is as soon as it’s handed
down and everything’s done, you fax or e-mail the
results to the National Criminal Intelligence Database;
which the FBI has and then across the nation.
So the next time you get pulled over, because you’ll
be a civilian after that, that’s assuming after you’ve
served your time, you won’t be talked to probably very
©2013 The Hadley School for the Blind
Page 14 of 33
2013-08-28-Military Justice
nicely once they get your ID. The next thing you
know, you are a convicted federal felon. You’re going
to be treated a little bit differently. You also lose the
right to have a gun, lose the right to vote. So these
are all things that, as a former defense attorney
talking to my client, you got to understand, depending
on how we’re going to take this, these are the
possibilities.
So you got the BCD and then you got the biggest,
baddest dog of them all called the General Courts
Marshal and that’s what you’ve heard in the news
occurring, whether it be up at Ford Mead or down at
Fort Hood or out at Fort Lewis, being in the news
recently with some of the high profile cases dealing
with very serious crimes.
So what type of punitive discharge can you get at a
General Courts Marshal? Well, there’s three. So you
can receive a dishonorable discharge. If you’re an
officer, then you are dismissed, which is essentially
the equivalent of a dishonorable discharge and what
we’re finding out from Ford Hood is there is a third
type of discharge. And that discharge is death.
Now there’s been some recent changes in the
Uniform Code of Military Justice. Backing up, who
has input on the Uniform Code of Military Justice?
Well, that would be Congress and the President.
©2013 The Hadley School for the Blind
Page 15 of 33
2013-08-28-Military Justice
There also is a standing committee on military affairs
that look at making changes – which we obviously
have had to make some changes with some recent
federal rulings dealing with same-sex marriage, that
type of thing, because things that may have been
previously a violation of the punitive articles would
now not be. But I digress.
Back to death. So the case at Fort Hood. What
you’re looking at is this is a case that, for all intents
and purposes, it’s unusual in that the military typically
would not, at least in my personal opinion would not
pursue a capital offense case. Why? Well, it’s
difficult to get a unanimous vote for death because
that’s what is required. But since I had mentioned
there had been some changes, one of the big
changes and the reason we don’t really need to go
after say, the death penalty, is the change from that to
life without parole; which came out, I believe, in the
late ‘90s as an option for serious crimes.
A bit of history. The last person to be executed by the
military was in 1962 and that individual was hung
from, essentially, I believe it was the elevator shaft
there at Fort Leavenworth; but since then, there have
been no executions by the military. So I don’t want to
dwell on it too much but we only have five individuals,
currently, on what would be considered death row at
Leavenworth or also known as the United States
©2013 The Hadley School for the Blind
Page 16 of 33
2013-08-28-Military Justice
Disciplinary Barracks. And all services, that’s where
all officers have to go, no matter what their sentence
is.
It’s a multi-service installation in that you have all of
the services represented that help guard and perform
the duties that a normal prison would be expected to
perform. So the differences that I’ve talked to you
about being administrative and then punitive. That’s
important to understand because they provide
different types of discharges.
Now, the questions that we typically get are from
veteran’s who may have received a discharge.
Essentially, if they didn’t receive an honorable
discharge, they received a lower discharge. If it was
an administrative discharge, that being general under
honorable conditions or other than honorable
conditions, typically, what I would advise my clients is
– because they would always ask, hey, when can I
apply for a discharge upgrade? Well, I would tell
them, hey, you want to apply tonight, knock yourself
out.
But here’s the thing, nothing has changed. And so
my recommendation is, get out – obviously, well, you
don’t have a choice. You’re getting out. Get a job or
go back to school and, I would say, depending on if
it’s a General Under Honorable Conditions, I would
©2013 The Hadley School for the Blind
Page 17 of 33
2013-08-28-Military Justice
say probably a couple years, maybe even three. If
you’re pursuing a degree, get that degree. Be
working for someone for a couple of years, and then
getting those letters of recommendation, because the
Discharge Review Board, they’re going to look at that.
If you apply six months after you’ve been discharged,
and you haven’t done anything other than show up for
work on time at wherever, Exxon or Xerox, nothing
much has really changed as far as the Board’s
concerned.
So the idea is to show a pattern of good conduct, a
pattern of hey, I’ve straightened my life out. I’m
addressing the deficiencies and a few years have
gone by and so that’s what would go before the board
and depending on the level that you had, the chances
are always better if there has been a decent amount
of time to show the board that you’ve been consistent.
The more problematic upgrades are those
dishonorable discharges and the bad conduct – those
punitive discharges. Not that they can’t be upgraded,
because it depends on the facts of the case. For
those, I would definitely want to talk to the individual
to see what they’ve done since then, how they’ve
addressed it. Talk about the Court Marshal, before
they put in their packet; but back to the administrative
discharges, I think what I’ve presented to you, that
would be, to me, your best approach if you want your
©2013 The Hadley School for the Blind
Page 18 of 33
2013-08-28-Military Justice
best chance at success. Then that would be my
approach. And yes, obviously, the VA benefits that
you could be entitled to, obviously, are affected by the
type of discharge, like we discussed earlier. So that
would definitely be a reason to apply, either to the
Discharge Review Board, or if you’re in the Army, the
Army Board of Correction For Military Records or
what have you. So those types of things. Larry?
Larry Muffet
Well, I know there was – one of our listeners had a
question about that about what recourse a person has
if they get an OTH discharge. So I think you have
addressed some of that. She indicated that that
happened in 2005, so sufficient time, it would seem
has passed if there was changes in the light. Is this
something that you all do at the Veterans’ Support
Center and Clinic?
Tom White
Essentially, the types of things that I pointed out, we
would talk to them about that. We would have them,
maybe, draft up something, kind of piece it together
for us, and then have them send it in to us and then
we would try to sprinkle our magic on it and try to
dress it up a little bit. Not put lipstick on the pig or
whatever, but we would try and persuasively use what
you give us to really address what we know that the
board is typically going to be looking at.
©2013 The Hadley School for the Blind
Page 19 of 33
2013-08-28-Military Justice
And those are the types of things that I mentioned
and if this was a 2005 discharge, then the expectation
would be that maybe a degree was achieved or
maybe some type of technical degree achieved and
then a good working job where you would have no
problem having your boss – maybe you involved
yourself in volunteer activities or done other things
that would really show, yes, and I just didn’t do it for a
year, I’ve been doing it four years.
So that type of thing is what we would try to blow up a
little bit and make it sound really persuasive because,
again, the Board knows that obviously there are
people requesting discharge upgrades for many
reasons, but nowadays, especially with the wars, it
has a lot to do with the VA benefits.
Larry Muffet
To follow up on that, where does one learn about the
Discharge Review Board and where does one get a
packet?
Tom White
Well, off the top of my head, I think if you probably
Googled “Military Discharge Review Board,” you may
find something. If not, you can contact our clinic at
John Marshal Law School and we can –
©2013 The Hadley School for the Blind
Page 20 of 33
2013-08-28-Military Justice
Larry Muffet
Do you have a telephone number they can try?
Tom White
It’s (312) 427-2737 and then there’ll be a prompt for
asking for clinics and then it’ll give you a series of, I
think, four different clinics and you’ll select the
Veterans’ Clinic.
Larry Muffet
Excellent. Excellent. I posted that information up in
the text box. The telephone number and the clinic
that you want to select on that. We’ve got time for a
few questions here, so if you don’t have a
microphone, you can type your question in the chat
box. I’m also going to release the microphone here,
for a second, if anyone has some questions. If not, I
have a few. All right? I’m going to jump in here with a
few. The Uniform Code of Military Justice, does it
work basically the same as the civilian system?
Meaning, innocent until proven guilty, the same sort of
rules of evidence, that sort of thing.
Tom White
Yes and no. You knew I was going to say that! I’m a
lawyer! Actually, believe it or not, there are more
protections for the accused in the military system than
there are in the civilian system and I’ll give you one
good example. Yes, obviously, when a suspect is
©2013 The Hadley School for the Blind
Page 21 of 33
2013-08-28-Military Justice
apprehended or otherwise, in the civilian world,
arrested, they are of course read what is called their
Article 31B rights, which is your Miranda rights.
However, we are required to give a couple more
things. We have to identify ourselves, because I can
actually – any officer or senior non-commissioned
officer can apprehend a suspect. When they
apprehend, they must read them. That’s why we
would hand out Article 31B cards to all of our
commanders and first sergeants and in reading them
their rights, you have to notify them of who you are,
and that requires an ID if you’re in civilian clothes.
Yes, I have had situations on a softball field or a
colonel got really ticked off and it was a big mess.
Yeah. Cooler heads prevailed eventually. So you
have to identify yourself. You have to let the suspect
or accused know what they are accused of. I don’t
know. The last time, if you were watching Cops, you
heard, you have the right to remain silent. Anything
you say or do can and will be used against you in a
court of law. Watch your head. That’s it.
But no, we have to go that one step further and that is
we have to let them know that we suspect you of a
violation of Article 112A, meaning either using or
possessing a controlled substance. We have to do
that. So that’s one example.
©2013 The Hadley School for the Blind
Page 22 of 33
2013-08-28-Military Justice
Another glaring example, which blows civilians away
when they hear about this, is – and I hate comparing
the two but it’s the closest thing and it’s what you
always hear in the media. Oh, they’re going to be
having an Article 32 hearing. It’s much like our
civilian Grand Jury. Okay. Well the last time I
checked, a civilian Grand Jury is run by the
prosecutor, okay? And, of course, they’re looking for
an indictment and you know, you can indict a ham
sandwich. Is the accused there? No. Is the accused
attorney there? No. Well who is put up on the stand?
Whoever the prosecutor wants to put up on the stand
to speak to the Grand Jury and to testify as to their
knowledge of the crime. And then the Grand Jury
goes out and they come back 30 seconds later with
an indictment.
Now in the military, our so-called Grand Jury or what
we call Article 32, the Uniform Code of Military
Justice. That is first, you have an officer who doesn’t
have to be legally-trained, but I have seen – in all
kinds of different situations, I’ve seen where there’s
been a JAG officer that is appointed as what is called
the investigating officer and that individual will then
have a certain set of rules covered in, I believe, it’s
the rules for Court Marshal. If I’m wrong, a slight 405,
I believe.
©2013 The Hadley School for the Blind
Page 23 of 33
2013-08-28-Military Justice
And the rules are this, that once the individual is
appointed as the investigating officer on the case,
then the prosecutor comes – you may be in a court
room, you maybe in a very large meeting room, a
conference room. The prosecutor is there. The
defense attorney is there. The accused is there and
then the prosecutor calls their witnesses in and when
they testify, their subject to perjury. I mean, this is – I
had to bring it up a couple of times because I always
make sure you interview the prosecution witnesses
because the prosecutor may not have talked to them
first.
Anyway, I hope I don’t offend any prosecutors out
there. So when a prosecutor’s done with their direct
examination – oh by the way, there are no rules of
evidence in this particular setting. The defense
council now gets to get up and go – I’ll give you an
example from my own career. Let me get this
straight. You are a part of an undercover operation
and you are testifying that you bought drugs from my
client. I got that right? Yeah. Yeah. Okay. Just a
couple other questions. Are you having sexual
relations with my client’s girlfriend? Huh? The
investigating officer can answer. Prosecutor, what
are you doing Tom? Like, I want him to answer the
question. Yes. Did you also provide a case of beer to
my client’s girlfriend’s 12 year old brother? Yes.
Well, that’s all very interesting, isn’t it? I think I’ll just
©2013 The Hadley School for the Blind
Page 24 of 33
2013-08-28-Military Justice
sit down now and the prosecutor’s shaking their head.
Okay.
So looking at a Grand Jury in civilian and looking at
our military system and the ability to have present in
the room as opposed to the civilian. The defense
attorney and the accused, because the accused sit
there and consult and say this, that, and we can talk;
and the big thing is, is the defense attorney can crossexamine the witnesses, where in the civilian Grand
Jury, there’s no cross-examination. They just testify
and then they get down. And so in that way, it’s yes,
there are these other protections that are not
available in the civilian community.
Larry Muffet
What’s the appeal process for – we know how the
appeal process works in the civilian system. How
does it work in the UCMJ?
Tom White
Well, within the military, we only have criminal courts.
Otherwise known as Courts Marshal. We do not have
civil actions. Those are – well, we have civil actions,
but don’t have a civil court system. That’s dealt with
through our claims and under the Federal Tort Claims
Act. The way it would work is no matter what your
service. If you’re being court marshaled in the Air
Force or the Navy Marine Corps, or the Army, the first
©2013 The Hadley School for the Blind
Page 25 of 33
2013-08-28-Military Justice
level is it’s a trial level and that’s the Court Marshal.
The next level up would be, if you’re in the Navy
Marine Corps is the Navy Marine Corps Corps of
Appeals. If you’re in the Army, it’s the Army Corps of
Appeals and so then, from there, depending on what
happens, you have one more layer.
Oh, and by the way, the Army Corps of Appeals, that
is military judges. That’s important because the next
level appeal is the Court of Appeals for the Armed
Forces. CAF. And they’re in Washington D.C. and
they are all civilian judges. Now some of them may
have been former Jags, may not have been, but they
are civilians. From that point, again, as I mentioned
earlier, we are federal. So that means the case then,
at that point, if it’s going to go further than ACCA – I’m
sorry. The Court of Appeals of the Armed Forces,
CAF, it will go to the Supreme Court of the United
States. So that’s the appellant process.
Now there’s also other things that go on that people
don’t really know about. There are what are called
Parole Review Boards. I had a client who was
convicted of a pretty serious crime and then
sentenced to four years of confinement. He ended up
– because you can appeal that to the parole board
after you’ve been incarcerated six months. I get a
letter from my client saying, hey, I’m out and they
upgraded my discharge to honorable.
©2013 The Hadley School for the Blind
Page 26 of 33
2013-08-28-Military Justice
It all came down to – because they get a copy of the
transcript of the Court Marshal and I spent the entire
time attacking all the witnesses and, ultimately, when
it came down to it, when someone sat and heard all
the pieces, it allowed my client to be released and
upgraded in his discharge. That’s something kind of
outside the mainstream that even a lot of military don’t
know about, unless their of course incarcerated and
then they would know.
Larry Muffet
I see Jerry’s got his hand up. Jerry, do you have a
question for Tom?
Jerry
Yeah. Tom, I have a friend that served his time and
he’s legally blind now and he’s filed for (inaudible), but
he served his time. He received his honorable
discharge. He went back into service to another
branch. Not sure exactly what happened but they
didn’t fulfill his obligation that he wanted and he
wound up stuck back to basic training again and stuff
and he said, I’ve already been through all this but I
wanted to do it over it again but do it in a different
branch and work his way back up. The military found
out that and they didn’t do it for him. So he said,
okay.
©2013 The Hadley School for the Blind
Page 27 of 33
2013-08-28-Military Justice
So he left the military. So he got other than
honorable. But he still has an honorable. Now can
he – he’s going through a claim process and his
vision was – well, the deterioration of his vision was
while he was on his honorable discharge, but when
he served his time the second it, was an other than an
honorable. But this claim has to do with while he was
discharged as honorable. Could that affect his
disability rating? Can his other than honorable not
apply to his honorable?
Tom White
Jerry, that’s a great question because a lot of people
don’t understand that you typically serve three years
and then if you re-enlist, you get an honorable
discharge, even though you don’t leave the military.
So you may have a period of time where you served
honorably, and then your next three years, well, okay.
You just happened one night to smoke some dope or
something and you show up hot and then you get
booted out with a less than honorable discharge.
That is not uncommon.
To answer your question, I think a situation like that
and depending on you said he had filed a claim and is
maybe intending on filing a claim and it deals with the
loss of vision during a period of time when he was
serving honorably or had served honorably. That’s a
very technical question and I would encourage you –
©2013 The Hadley School for the Blind
Page 28 of 33
2013-08-28-Military Justice
depending on where his claim is. If he’s already
submitted it – even if he already has submitted it, it
would be good for that individual to contact the John
Marshall Veterans’ Law Clinic. Maybe we can give
the individual some more clarity, but if he’s already
filed the claim, then essentially we have to wait like
everybody else. Wait until the VA acts on the claim
and then comes back with the disability.
At that point, that’s really what we do. We don’t do
the Veteran’s Service Officer’s job. They have a
tremendous responsibility. Where we come in is a
situation like you’re describing is if it comes back and
they say, well, you’re not eligible or this or that, we
then collect all of the documents up and then our staff
attorneys working with our students, we would then
work to draft an appeal with as much gumption behind
it to try to get your friend where he needs to be as far
as a disability rating and getting appropriate
treatment.
Larry Muffet
You got a follow-up, Jerry?
Jerry
Yeah. I’ll let him know. I’ve served eight years but
yeah, he served quite a few years but there were
some changes he didn’t like. So I’ll pass that along.
Yeah, I’ve been helping him a few years ago. I’ll give
©2013 The Hadley School for the Blind
Page 29 of 33
2013-08-28-Military Justice
him your information. They you very much for this.
It’s very, very informative.
Larry Muffet
Thank you. Other questions for Tom, while we have
him here? I will release the microphone again if
anyone else wants to jump in here with a question.
It’s an excellent opportunity to talk to a genuine
expert.
Jerry
I will say, when I was stationed in Germany, it is easy
to get in trouble sometimes and I happened to be –an
E3, (inaudible) an E5. But something happened that
caused me – I got my E4 but it caused me to really
get into the S list. But I noticed after I left Germany,
left my unit, they removed all the Article 15 charges
and all that and cleaned my record. Whatever
happened in the unit stayed there and they cleaned it
out and when I left, I left with a polished record.
Tom White
Well, just a little history. Towards the end of World
War II and after World War II, you know we had
roughly 7 million in uniform. There was a tremendous
push – there were over a million Court Marshals of
various levels and that was just to get rid of people.
That really caused Congress to act and say, okay.
©2013 The Hadley School for the Blind
Page 30 of 33
2013-08-28-Military Justice
This military justice system, it’s not working because
actually it’s being abused.
So that ultimately led to what we’ve been talking
about today, is the Uniform Code of Military Justice.
A written-down procedural guide that is held
accountable by lawyers as opposed to – and from
World War II history and prior, you had officers who
would be appointed. Okay, you’re the prosecutor and
you’re the defense attorney. I don’t care if you’re a
school teacher. You’re going to prosecute this case
and you’re going to defend this guy. Okay, I don’t
care. Yeah, well, Matlock wasn’t out yet or Miami
Vice. They did the best they could and that’s what
you ended up with and a lot of people found guilty
and, obviously, court marshaled and so Congress
acted and said, hey, we needed to fix this and that
was a result of some abuses there at the end of World
War II.
Larry Muffet
I want to thank everybody and let you know that this
seminar, like all of our seminars, will be archived on
our website and available for your use anytime
around the clock. Also, each Hadley seminar is now
made available as a podcast, which you can
download to your computer or mobile device. If
today’s seminar has you interested in this topic,
please check out the Hadley web site, the seminar
©2013 The Hadley School for the Blind
Page 31 of 33
2013-08-28-Military Justice
archives, and Hadley’s course list. I would also
particularly recommend that you check out our
Blinded Veterans Initiative page and our Veterans’
Benefits Course.
Tom and I thank you for your participation. Your
questions were outstanding and really added a lot to
the value of the seminar. Hadley values your
feedback. Please let us know what you thought about
today’s seminar and please gives us some
suggestions for future topics. One way you can do
that is by dropping us an e-mail to
feedback@hadley.edu. That’s F-E-E-D-B-A-C-K, the
“at” sign, H-A-D-L-E-Y dot edu. I’m going to turn the
microphone back over to Tom for some closing
remarks.
Tom White
Well first, for everyone listening, thank you for your
service. I don’t mean that lightly at all. I was in a
position, as I said, as a legal advisor, for a three-start
general and the first day that we met, he shook my
hand and said, I want to thank you for your service.
And I found it odd, just that this would occur; but later
on, I had an opportunity to contemplate and I
understand and since then, no matter who I meet, no
matter if I see someone in uniform in an airport or at a
gas station or anything, I make that effort to thank
them for their service because no matter when you
©2013 The Hadley School for the Blind
Page 32 of 33
2013-08-28-Military Justice
served, you served our country and I want to thank
you.
Larry Muffet
Thanks, Tom. I appreciate that. I want to, again,
personally thank you for being a part of this seminar
and, again, for your questions and comments and
goodbye for now.
©2013 The Hadley School for the Blind
Page 33 of 33