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MILITARY JUSTICE OFFICE OF THE STAFF JUDGE ADVOCATE CPT Michael Cressler.

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Presentation on theme: "MILITARY JUSTICE OFFICE OF THE STAFF JUDGE ADVOCATE CPT Michael Cressler."— Presentation transcript:

1 MILITARY JUSTICE OFFICE OF THE STAFF JUDGE ADVOCATE CPT Michael Cressler

2 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” AGENDA THE COMMANDER’S TOOLS ADVERSE ADMINISTRATIVE ACTIONS ADMINISTRATIVE SEPARATION ACTIONS (“Chapters”) INVESTIGATING CRIME & MISCONDUCT NONJUDICIAL PUNISHMENT (ART. 15s) THE COURT-MARTIAL PROCESS THE ARTICLE 15 AND CHAPTER PROCESS

3 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” THE COMMANDER’S TOOLS

4 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” ADVERSE ADMINISTRATIVE ACTIONS Counseling & Admonition –Para. 1-16, AR , counseling –Memorandum of Reprimand Revoke Pass Privileges Corrective Training Rehab. Transfer NCOER Flag Bar to Reenlistment Removal From Promotion List Administrative Reduction in Rank Administrative Separation

5 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” ADMINISTRATIVE REPRIMAND AR ; AR Purposes Procedures –Drafting and Initiating –Notice and Rebuttal –Disposition: OMPF v. Local File Appeals DUI: General Officer Memo of Reprimand

6 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” BAR TO REENLISTMENT Discretionary Grounds –Untrainable –Unsuitable Mandatory Grounds –Lack of family care plan –Unsat progress in weight control program –2x APFT failures –Removed for cause from NCOES course Periodic Review: every 3 months

7 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” REMOVAL FROM PROMOTION LIST AR E-2 to E-4: Commander Decides E-5 and E-6: Local Board Decides E-7 and Up: Recommend to PERSCOM –Substandard duty performance or misconduct –Overweight plus »no satisfactory progress in 6 months, or »still exceeds body fat after 12 months

8 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” ADMINISTRATIVE REDUCTION AR Authority to Reduce –E-1 thru E-4 - Company Commander –E-5 thru E-6 - Bn Commander (LTC) –E-7 & above - Bde Commander (COL) Grounds –Civilian Court Conviction –Inefficiency Procedures (E-5 & above get board w/in 30 days)

9 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” MISCELLANEOUS ACTIONS REVOCATION OF PASS PRIVILEGES (nonpunitive) REHAB. TRANSFER CORRECTIVE (EXTRA) TRAINING –AR , para. 4-6b –Purpose: To correct deficiencies –Must be directly related to deficiencies FLAGS (Suspension of Favorable Actions) –AR –When to Impose –Three Types: Regular; Weight Control; APFT Failure

10 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” ADMINISTRATIVE SEPARATION ACTIONS “CHAPTERS” (“How to Fire a Soldier From His or Her Job”)

11 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” SEPARATIONS: COMMON ISSUES Admin Separation = “You’re Fired” Honorable v. General Discharge v. OTH Para Counseling (“magic language”) Medical Exam Separation Board –OTH recommended; or –6 or more years active and reserve service Processing Time

12 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” Pursuant to paragraph 1-16, AR , this constitutes a formal counseling session concerning your noted deficiencies. You will be given a reasonable period of time to correct these deficiencies and to rehabilitate yourself into a productive, satisfactory soldier. If your performance and conduct continue to be unsatisfactory, you may receive punishment under Article 15, UCMJ, or may be processed for separation under the provisions of Chapter 5, 9, 11, 13, 14, or 18, AR If you are processed for separation under the provisions of AR you may receive a general discharge or an other than honorable discharge. Each type of discharge may have serious consequences affecting civilian employment, Veteran’s Benefits or future service in the Armed Forces. PARA 1-16 COUNSELING

13 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” Required for Chapter 11, 13, 14-12a, and 14-12b separations Trainees - recycled at least once Other than trainees - locally reassigned between battalions Waivers By separation authority - if rehab transfer will serve no useful purpose or produce a quality soldier E.g., two consecutive APFT failures, pregnancy while in entry-level status, highly disruptive or potentially suicidal behavior, and active resistance of rehab efforts REHABILITATION

14 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” TYPES OF CHAPTERS Parenthood (Family Care Plan) (Ch. 5-8) Personality Disorder (Ch. 5-13) Other Designated Physical or Mental Conditions (Ch. 5-17) Dependency or Hardship (Ch. 6) * Fraudulent Entry (Ch. 7) Alcohol/Drug Abuse (“ADAPCP Failure”) (Ch. 9) In Lieu of Trial by Court-Martial (Ch. 10) *

15 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” TYPES OF CHAPTERS Entry Level Status Performance and Conduct (Ch. 11) Unsatisfactory Performance (Ch. 13) Conviction by a Civilian Court (Ch. 14-5) Minor Disciplinary Infractions (Ch a) Pattern of Misconduct (Ch b) Commission of a Serious Offense (Ch c) Homosexuality (Ch. 15) Failure to Meet Body Fat Standards (Ch. 18)

16 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” PARENTHOOD (CH. 5-8) Procedure: –Initial counseling by commander on Family Care Plan (checklist on DA Form 5305-R, per AR , para. 5-5) –Follow-up counseling 30 days later, with either: failure to provide plan or memo from soldier saying plan not possible. No Medical or Mental Exam Needed Separation Authority: Bde Commander Types of Discharge:Honorable or General

17 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” PERSONALITY DISORDER (CH. 5-13) Procedure: –Para Counseling –Mental Evaluation by certified psychologist/ psychiatrist: a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the soldier’s ability to perform duty. No Medical Exam Needed Separation Authority: Bde Cdr Type of Discharge:Honorable

18 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” OTHER PHYSICAL OR MENTAL CONDITIONS (CH. 5-17) Procedure: Para counseling Chance to Rehabilitate Mental or Medical Evaluation: Other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. Separation Authority: Bde Cdr Type of Discharge: Honorable

19 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” DEPENDENCY OR HARDSHIP (CH. 6) Procedure: Voluntary Dependency - family member becomes dependent upon soldier as a result of a death in family Hardship - separation will materially affect the care of soldier’s family by alleviating undue and genuine hardship Supporting evidence - affidavits Separation Authority: Bde Cdr Type of Discharge: Honorable or General

20 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” FRAUDULENT ENLISTMENT (CH. 7) Deliberate material misrepresentation, omission, or concealment of information which, if known by the Army, might have resulted in rejection Procedure: No para 1-16 counseling No medical or mental exam needed Separation Authority: Bde Cdr Type of Discharge: Honorable, General or OTH

21 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” ENTRY LEVEL PERFORMANCE & CONDUCT (CH. 11) Procedure: Initiate within initial 180 days of soldier’s service Para 1-16 counseling No Medical or Mental Exam Needed Separation Authority: Bn Cdr Type of Discharge: Uncharacterized

22 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” UNSATISFACTORY PERFORMANCE (CH. 13) Procedure – Para 1-16 Counseling/Rehabilitative transfer – Required for two consecutive APFT failures and elimination for cause from NCOES course Medical and Mental Exam required Separation Authority: Bn Cdr Types of Discharge: Honorable or General

23 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” CONVICTION BY CIVILIAN COURT (CH. 14-5) Required –Civilian Conviction: »Civilian sentence of 6 or more months, even if suspended/probation, or »Punitive discharge would be authorized at C-M for the type of offense committed. –No Para Counseling needed Separation Authority: GCMCA Types of Discharge: Honorable, General or OTH

24 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” PATTERNS OF MISCONDUCT (CH b) Procedure – Para 1-16 Counseling/Rehabilitative transfer – Evidence of Misconduct: Article 15s, Letters of Indebtedness, Bounced Checks, Bar, Negative Counseling, etc.. Mental & Medical Exams Separation Authority: Bde Cdr Types of Discharge:Honorable, General, or OTH

25 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” COMMISSION OF SERIOUS OFFENSE (CH c) Required – “Serious Offense” »Any offense for which punitive discharge is authorized by the MCM at court-martial »Includes disobedience! »Mandatory initiation rules for drug use – No Para Counseling needed Mental & Medical Exams Separation Authority: Bde Cdr Types of Discharge: Honorable, General, or OTH

26 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” HOMOSEXUALITY (CH. 15) CALL US FIRST! S.A.M. –Statement –Act –Marriage within same sex Commander’s Inquiry Administrative Board - waivable

27 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” FAILURE TO MEET BODY FAT STANDARDS (CH. 18) Four Ways to Fail (AR 600-9) –Unsat Progress in 6 months (3-8 lb./mo.) –Unsat Progress in 2 consecutive months –Overweight again in 12 months following “release” –Overweight again months following release after 90 day warning Para 1-16 Counseling Medical Exam Separation Authority: Bn Cdr Type of Discharge: Honorable

28 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” INVESTIGATION OF CRIME AND MISCONDUCT Searches & Seizures Inspections Confessions & Admissions

29 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” INVESTIGATIONS Who should investigate? –Commander »Commander’s Inquiry »AR 15-6 Investigation (Formal and Informal) –MPI –CID Search & Seizure –Warrant/Authorization to search required –No warrant required »Consent search »Plain view »Inspection (not a “search”)

30 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” COMMANDER’S AUTHORIZATION TO SEARCH Commander –Cdr who “owns” the place –Neutral & detached (search conducted by third party). Military Magistrate as an option Probable Cause Determination –A reasonable belief (“more likely than not”) that certain specific evidence of a crime is probably in the place to be searched. –Reliable information from reliable source

31 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” INSPECTIONS Primary Purpose: Health, Welfare, & Morale -- Not to collect evidence Not a “Search” in the legal sense Inspect everyone the same Examples –Barracks H&W –Car Inspections –Unit Urinalysis “Subterfuge” Rule

32 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” STATEMENTS OF SUSPECTS Article 31 Warnings are mandatory for: –Official –Questioning –of a Suspect Use DA Form 3881 Sworn Statement on DA Form 2823 Commander administers oath

33 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” SUPPORTING DOCUMENTS FOR ARTICLE 15 Use DA Form 2823 for sworn statements Include copy of all evidence - SOPs, etc. In counseling statements include who, what, where, when and how Corroborate witness statements Not necessary to cite UCMJ Article or follow sample specifications in MCM

34 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ Procedure - Appendix B, AR Not a Guilty Plea Rights: Spokesperson (except summarized), documents/witnesses/evidence, open hearing. Min. 48 hours to decide, consult counsel Appeals. 5 days to submit. JAG review. Command has 5 days to act. Filing - Often more important than the punishment for NCOs. Vacation of Suspended Punishments

35 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” AUTHORIZED PUNISHMENTS ARTICLE 15, UCMJ Field Grade –Reduction »E5-E6: 1 Grade »E1-E4: Red. to E1 –1/2 mo. pay for 2 mos. –45 days of extra duty –45 days restriction Summarized –14 days extra duty –14 days restriction Company Grade –Red. 1 grade (E1-E4) –Forfeit 7 days pay –14 days extra duty –14 days restriction

36 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” THE ARTICLE 15 AND CHAPTER PROCESS Compile evidence Submit with Request for Legal Action to Bn S-1 Bn S-1 logs action, adds additional documents (ERB, 2-1, etc.) and forwards to OSJA OSJA receives action, reviews for completeness, logs action, and prepares packet

37 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” THE ARTICLE 15 AND CHAPTER PROCESS Trial Counsel reviews packet Packet sent back to unit, thru Bn S-1 Action is read to soldier Soldier goes to TDS - MWF Soldier makes election of rights and action is returned to unit for completion Action returned to OSJA for final processing

38 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” WHY A SEPARATE MILITARY JUSTICE SYSTEM? UNIQUE DISICPLINARY NEEDS EFFICIENCY IN A SPARTAN ENVIRONMENT WORLD-WIDE JURISDICTION THE COURT-MARTIAL PROCESS

39 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” U.S. CONSTITUTION Article I, Section 8--Congress Article II, Section II--President UCMJ (10 U.S.C SECTIONS ) MANUAL FOR COURTS MARTIAL Rules for courts Martial Rules of Evidence REGULATIONS CASE LAW LEGAL BASIS OF MILITARY JUSTICE

40 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” TRIAL COURTS Summary Court-Martial (SCM) Special Court-Martial (SPCM) Special Court-Martial empowered to adjudge a Bad Conduct discharge (BCD-SPCM) General Court Martial (GCM)--Felonies THE MILITARY COURT SYSTEM

41 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” SUMMARY COURT-MARTIAL Enlisted Personnel Only Convened by: Bn Cdr or higher Members: Summary Court-Officer Max Punishments: –Red to E-1 (E-4 and below) –Red of 1 Grade (E5 - E7) –Confinement for 1 Month (E4 and below) –45 days hard labor w/o conf (E4 and below) –2 months restriction –Forfeiture of 2/3 pay for 1 month

42 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” BCD-SPECIAL COURT-MARTIAL Convened By: GCMCA Members Max Punishments: –Red to E1 –6 Months Confinement –Forfeit 2/3 pay for 6 months –Bad Conduct Discharge Goes on record as federal misdemeanor conviction

43 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” GENERAL COURT-MARTIAL Convened By: GCMCA Members Article 32 Investigation Max Punishment: –Red to E1 –Confinement (depending on offense) –Total Forfeiture of Pay and Allowances –Dishonorable Discharge/Dismissal –Death (depending on offense) Goes on record as federal felony

44 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” APPELLATE COURTS Courts of Criminal Appeals Review all cases involving punitive discharge or confinement in excess of one year. U.S. Court of Appeals for the Armed Forces Review all cases involving the death penalty and cases which it certifies for review. United States Supreme Court THE MILITARY COURT SYSTEM

45 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” COMMANDERS STAFF JUDGE ADVOCATE TRIAL COUNSEL (Prosecutor) TRIAL DEFENSE COUNSEL (TDS) MILITARY JUDGE CIVILIAN DEFENSE COUNSEL LEGAL SPECIALISTS MILITARY POLICE/CID THE PLAYERS

46 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” COURT-MARTIAL PROCESS Offense Occurs –Investigation –Pretrial Restraint, Restriction, or Confinement? Preferral Transmittal Article 32 Investigation (GCM Only) Referral Arraignment Motions Trial –Findings –Sentencing Unit Support Requirements –Bailiffs –Prisoner Escorts

47 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” Reported Offense Commander’s Inquiry Dispose of Offense in a TIMELY MANNER at the LOWEST APPROPRIATE LEVEL INITIATION AND DISPOSITION OF CHARGES

48 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” PRETRIAL RESTRAINT & CONFINEMENT Pull Pass Privileges Pretrial Restriction –Identify restriction “tantamount to confinement” Pretrial Confinement –Who can order it –Conditions warranting PTC –Cdr’s written review (PTC checklist) –Magistrate’s review within 48 hours

49 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” CONDITIONS WARRANTING PTC Probable Cause; and Foreseeable that –Will not appear at trial (flight risk), or –Will engage in serious criminal misconduct; and Lesser forms of restraint inadequate.

50 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” No Action Dismiss Charges Administrative Action Counsel Reprimand Separation Nonjudicial Punishment Prefer and Forward Charges COMMANDER’S OPTIONS

51 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” PREFERRAL RECOMMENDATIONS AS TO DISPOSTITION ARTICLE 32 HEARING (GCM ONLY) REFERRAL DISCOVERY AND PREPARATION NEGOTIATIONS ARRAIGNMENT PRE-TRIAL PHASE

52 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” PANEL IS SEATED VOIR DIRE GOVERNMENT CASE DEFENSE CASE REBUTTAL DELIBERATIONS SENTENCING CASE SENTENCING DELIBERATIONS TRIAL PHASE

53 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” GCMCA ACTION APPELLATE REVIEW APPEAL PROBATION/PAROLE POST-TRIAL PHASE

54 OFFICE OF THE STAFF JUDGE ADVOCATE “SOLDIERS FIRST, LAWYERS ALWAYS” POINTS OF CONTACT TRIAL COUNSEL –CPT CRESSLER –CPT FELLRATH NCOIC –SGT CARROLL LEGAL SPECIALISTS –SPC BROWN –PVT REEP PARALEGAL –MR. DOUTHIT


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