MILITARY LAW. Military Law. In this Issue: FEATURES

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1 In this Issue: Military Law MILITARY LAW Military Legal Assistance for the New Jersey Reservist Military Medical Malpractice Rights and Remedies How to Assist the Deploying Military and Their Family What to do When Employees Return From Active Military Duty Courts Martial Process and Procedure Also in this issue Case Update Attorney Ethics Lawyer s Bookshelf Legal Creativity FEATURES Commentary on the Federal Side: How Congress has Assisted the Nation s Military Personnel 4 by Congressman Christopher Smith Commentary on the State Side: Recent Developments in the New Jersey Legislature in Support of Our Armed Forces 6 by Assemblyman Jack Conners Offering Military Legal Assistance to the New Jersey Reservist: The State Bar Association s Response 8 by William S. Greenberg Courts Martial: Process and Procedure 11 by Michael Waddington Getting Fired by the Military (and What You Can do About It) 16 by David P. Price What to do When Employees Return From Active Military Duty 23 by Helen E. Tuttle Avoiding the Minefield in Judicial Review of Military Personnel Actions: Exhausting Administrative Remedies 28 by John A. Wickham Child Removal and Abduction in Military Families 32 by Mark S. Guralnick Military Medical Malpractice Rights and Remedies 36 by Howard S. Richman Service of Process and Default in Military Cases 39 by Brian D. Winters and Amy B. Hansel Changes in Military Disability Benefits and Their Impact on Divorce 42 by Rodney Troyan Debating the Ban: The Past, Present and Future of Don t Ask, Don t Tell 46 by Emily B. Hecht To Report or Not to Report: Advice to the Reluctant Ready Reservist Called to Involuntary Active Duty 52 by David F. Bauman Is Military Justice Just? 55 by Col. James B. Smith How to Assist the Deploying Military and Their Family 58 by Michael Tier Veterans Benefits Upon Separation From Service 62 by Charles E. Reuther DEPARTMENTS President s Perspective 2 Message From the Special Editor 3 Case Update 66 Attorney Ethics 68 Lawyer s Bookshelf 69 Legal Creativity 70

2 PRESIDENT S PERSPECTIVE LYNN FONTAINE NEWSOME A Call for Recruits Last October, the NJSBA, through its Military Law and Veterans Affairs Committee, joined with McCarter & English to develop a Military Legal Assistance Program. Developed by Committee Chair Daniel Giaquinto, a colonel, staff judge advocate, New Jersey Army National Guard, and retired Brigadier General William Greenberg, USA, this pro bono program provides legal assistance to New Jersey residents who have served overseas as active duty members of reserve components of the armed forces since Sept. 11, Up to 3,000 New Jersey residents serving in the armed forces reserves have been deployed overseas in Iraq or Afghanistan. These individuals are now in the process of returning to New Jersey. Many of them will be or have been adversely affected by reason of their status, change of status, or long-term deployment. Therefore, there is an anticipated need for legal assistance for these military personnel. The program offers assistance in three areas: family law; employment law; and debtor-creditor law. It refers members of the military who contact the New Jersey State Bar Association to volunteers qualified to assist them with their specific legal issues. Volunteers who accept a case through the program must agree to handle the case from inception to resolution, without compensation or reimbursement for expenses. It is anticipated that future training will be offered in the areas of law where assistance is provided. The NJSBA has informed New Jersey s military and government leaders about the program. In March, Mr. Giaquinto and Mr. Greenberg were invited to testify before the Assembly Military and Veteran Affairs Committee. The NJSBA leadership later met with the New Jersey congressional delegation as a part of ABA Day in Washington, D.C., where members of Congress were advised about the program. The response from the New Jersey delegation was overwhelmingly positive and supportive. To date, we have over 55 volunteers enlisted in the program, and they are providing legal services to 10 soldiers who have served in either Iraq or Afghanistan. At least one of the people we are trying to help is an attorney from Union County. Some program participants have already completed their first assignment. However, the program can only be as successful as the members who we have participating. All of those attending the 2007 Annual Meeting at the Borgata Hotel & Casino were provided with a letter co-signed by me and Wayne Positan, immediate past president, advising the attendees of the program and encouraging participation. I now expand that solicitation to the entire bar association, and encourage all of you to volunteer your time and effort for this important and worthwhile cause to help our soldiers in need. In doing so, New Jersey lawyers stand as a model for lawyers nationally and internationally. I also encourage you to read Mr. Greenberg s article in this issue of New Jersey Lawyer Magazine, which explains more of the details behind the program. If you have further questions or would like to enroll in the program you may contact me or the staff liaison for the program, D. Todd Sidor, Director of Judicial Administration, by at or phone at Finally, I am honored to serve as your president. I look forward to an exciting and meaningful year for our organization. In the next issue, I hope to provide you with more insights into my goals and aspirations for the coming year. In that regard, I invite you to communicate with me regularly at with your comments, suggestions, or ideas on how we can make this year and our association better. 2 NEW JERSEY LAWYER June 2007

3 MESSAGE FROM THE SPECIAL EDITOR Harold L. Rubenstein Cheryl Baisden Janet Gallo Jeffrey P. Michals Margaret Goodzeit Lawrence R. Jones Kevin J. O Connor Marilyn K. Askin Mitchell H. Cobert James J. Ferrelli Pedro J. Jimenez Jr. Susan R. Kaplan Michele Labrada Brian R. Lehrer Robert Olejar Gianfranco A. Pietrafesa Michael F. Schaff Michael A. Shipp Susan Storch Susan Stryker Richard A. West Jr. STAFF Publisher Managing Editor Graphic Designer Advertising Rep. EDITORIAL BOARD Steven Richman Chair Vice Chair Vice Chair Book Review and Legal Creativity Editor NJSBA EXECUTIVE COMMITTEE Lynn Fontaine Newsome Peggy Sheehan Knee Allen A. Etish Richard H. Steen Susan A. Feeney Kevin P. McCann Wayne J. Positan President President-Elect First Vice President Second Vice President Treasurer Secretary Immediate Past President New Jersey Lawyer Magazine (ISSN ) is published six times per year. Permit number Subscription is included in dues to members of the New Jersey State Bar Association ($10.50); those ineligible for NJSBA membership may subscribe at $60 per year. There is a charge of $2.50 per copy for providing copies of individual articles Published by the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey Periodicals postage paid at New Brunswick, New Jersey and at additional mailing offices. POSTMASTER: Send address changes to New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey Copyright 2007 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey New Jersey Lawyer invites contributions of articles or other items. Views and opinions expressed herein are not to be taken as official expressions of the New Jersey State Bar Association unless so stated. Publication of any articles herein does not necessarily imply endorsement in any way of the views expressed. Printed in U.S.A. Official Headquarters: New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey Advertising Display It is an honor to serve as the special editor of New Jersey Lawyer Magazine s first edition on military law. Military law has taken on a great significance in our country over the past several years. In a wartime era when fulltime military personnel and reservists alike have been called into action, the rights and duties of our service members are of paramount importance. The phrase military law does not merely cover the rights of military personnel in a deployed setting. Rather, issues relating to family law, employment law, and veteran s rights upon return home to the United States are of great importance to our service members, and warrant significant discussion and legal education. Accordingly, this edition of New Jersey Lawyer Magazine is one of the largest ever produced by the New Jersey State Bar Association containing 16 separate articles on issues of legal importance to our men and women serving in the United States Armed Forces. Leading off the edition are columns from two special guest authors Congressman Christopher Smith and Assemblyman Jack Conners. Congressman Smith and Assemblyman Conners served respectively as federal and state chairs of legislative committees on military and veterans affairs. Each legislator provides a summary of the key federal and state legislative developments for military personnel over the past several years. Following these articles, we are pleased to present a series of very informative articles authored by attorneys with an eye toward educating the general practitioner in particular nuances of military law. Mark Guralnick writes on custody and family law issues arising when a parent is a member of the armed forces. Helen Tuttle authors a piece on employment rights LAWRENCE R. JONES of the deployed employee. Brian Winters and Amy Hansel present an article on default procedures against a defendant who is serving in the military. Michael Waddington writes on court martial proceedings, while David Price discusses administrative separation and correction of military records. Howard Richman presents a study of military medical malpractice, while Charles Ruether provides an overview of rights of reservists. Michael Tier authors an article on assisting deploying military members and their families, while Emily Hecht reviews the status of the Don t Ask, Don t Tell concept and James Smith offers his view on the legal question, Is Military Justice Just? Rodney Troyan discusses military disability benefits and divorce, while David Bauman advises on reservists being called to involuntary active duty. John Wickham writes on the military appeal process, while William Greenberg authors an article on the New Jersey State Bar Association s response to the needs of military personnel. On behalf of all members of the New Jersey State Bar Association, I wish to thank all of the members of the United States Armed Forces for their sacrifice and efforts on the behalf of the United State of America. We are hopeful that all members of the New Jersey State Bar Association will find this edition of New Jersey Lawyer Magazine to be an extremely helpful and practical tool for future reference. Lawrence R. Jones practices in Toms River and is the vice chair of the New Jersey Lawyer Magazine Editorial Board. NEW JERSEY LAWYER June

4 COMMENTARY ON THE FEDERAL SIDE How Congress has Assisted the Nation s Military Personnel by Congressman Christopher Smith More than 37,000 servicemen and women from New Jersey are making immense sacrifices to defend and protect America and our freedoms. Multiple and extended tours of duty away from family and in some cases children they have yet to meet coupled with battlefield stresses that to most Americans are beyond anything imaginable, make wartime deployments particularly hard on our servicemen and women. With this in mind, the last things our soldiers, sailors, Marines, airmen, Guardsmen and reservists should have to worry about before and during deployment are personal financial and legal matters at home that are exacerbated because they have been deployed. Our military personnel have too many immediate challenges to confront to be distracted by concerns over whether someone is seeking a default judgment against them back home, or whether their property may be repossessed while they are away. In an effort to reduce the hardships on deployed military personnel, I made modernizing and strengthening their financial and legal protections one of my top priorities when I chaired the House Veterans Affairs Committee. The successful legislation I authored the Servicemembers Civil Relief Act (SCRA) was the first substantial enhancement to the financial, civil and legal protections given to members of our armed forces in over 60 years. The Servicemembers Civil Relief Act (P.L ) is now our nation s foremost law protecting the civil, legal and economic interests of members of our armed forces and their families. Unfortunately, its successful implementation has largely flown under the radar. It is, nonetheless, a story that needs to be told and retold, so others who are deployed are aware of their full protections enshrined in P.L The law ensures that from the first day of active duty onward, members of our armed forces receive protections from actions against their financial and legal liabilities during time of deployment. For Guardsmen and reservists, SCRA coverage applies to all who are called to active duty for a period of more than 30 consecutive days in responding to a national emergency, and begins on the date the Guardsman or reservist enters active-duty service. Extension of SCRA protections to members of the National Guard and the Reserves is of the utmost importance, considering the heavy load they are carrying. Many of these men and women have established careers outside of the military, and have left well-paying jobs behind during their deployment. Activation for Guardsmen and Reserve members often leads to a reduction in income, which in turn can place significant economic pressure on them and their families. For these men and women, the financial protections in the SCRA are not only valuable, but necessary. Among the numerous rights granted to active-duty service members, Guardsmen and reservists is protection from eviction while on active duty as a result of nonpayment of rent. Previously this right only applied to rent that was $1,200 per month or less. Under the law this protection was significantly 4 NEW JERSEY LAWYER June 2007

5 updated to meet today s higher cost of living initially covering housing leases up to $2,400 per month and adjusted annually since initial passage to account for inflation. The law also gives service members the ability to terminate housing leases and automobile leases after notice of deployment without penalty. Furthermore, the SCRA prevents personal property such as automobiles from being repossessed without a specific court order, protecting service members in case they fall behind on lease payments while they are serving our country countless miles away. As a result of the law, service members have the right to request a six-percent interest rate cap for debt or liability including credit card debt incurred before active duty. The law unambiguously states that no interest above six percent can accrue for credit obligations while on active duty. Instead, the portion above six percent is permanently forgiven. The civil legal protections in the SCRA include an automatic 90-day stay to relieve service members from having to be physically present during proceedings when they have been called to active duty or deployed to new duty stations and the possibility of service members reopening default judgments rendered against them when the failure to appear was caused by military service. These and other important safeguards in the SCRA have protected numerous service members and their families from evictions, foreclosures, repossessions, double taxation and adverse legal judgments in the short time the law has been in effect. The law has been effective, in large part, due to the extraordinary efforts every branch of the military makes to educate service members on their rights and obligations under the law through briefings, military media and websites. The strong legal advocates in each branch of the military also have played a crucial role in informing service members of their rights and answering questions they have about invoking their rights under SCRA. These same military legal assistance officers also are the service members first line of defense when they need to invoke their SCRA rights. Civilian lawyers also play an important role in protecting SCRA rights, often working hand-in-hand with military lawyers on cases. And in some cases, when civil rights are being violated, the Department of Justice can be called upon for additional assistance. (For more information on how private practice attorneys can assist in SCRA matters, visit Relief.htm) The successful implementation of these protections could not have come at a more crucial time. The global war on terror has required more personnel deployed for longer stays overseas, which has led to a renewed focus on the individuals fighting the battles, as well as the families they have left behind. As a result, more attention is being focused on programs to reduce the stress members of our armed services and their families face during deployment. As lawmakers, it is incumbent upon us to constantly seek ways to reduce undue stress on members of our armed forces and our veterans community at home. As Congress looks to new avenues to help reduce the hardships and ease the burdens of military families, we should look to the successes of the SCRA as a model of how to properly legislate and implement reforms that truly do benefit our service members and their families. Christopher Smith, a former chair of the House Veterans Affairs Committee, has represented the Fourth District of New Jersey in the U.S. House of Representatives for 27 years, and is the author of 13 laws to benefit the nation s veterans, including the Servicemembers Civil Relief Act. NEW JERSEY LAWYER June

6 COMMENTARY ON THE STATE SIDE Recent Developments in the New Jersey Legislature in Support of Our Armed Forces by Assemblyman Jack Conners While military and veterans issues and services are most often associated with the federal government, the state of New Jersey plays a large role in providing entitlements and benefits for those who have served in the armed forces. Often that role is in support of the federal government, by acting as an intermediary to help New Jersey veterans navigate the bureaucracy of large federal organizations like the Department of Defense or Department of Veterans Affairs (VA). However, the New Jersey Department of Military and Veterans Affairs leads and operates its own state-based programs and benefits for New Jersey s nearly 600,000 veterans, as well as support for National Guard members. Over the past 10 years, as a member and current chair of the New Jersey State Assembly Military and Veteran Affairs Committee, I have worked with the department to improve benefits for veterans and service personnel. Our work in the Assembly has produced many laws that have put New Jersey at the forefront of issues most important to veterans and military personnel. Among the most valued benefits are those pertaining to tax relief. For example, certain honorably discharged veterans are eligible for an annual property tax deduction of $250 (N.J.S.A. 54: et seq.; L. 1963, c.171 as amended). Additionally, New Jersey veterans who have been designated with a 100 percent permanent serviceconnected disability by the VA, among other criteria, do not pay property taxes at all (N.J.S.A. 54: et seq.; L. 1948, c.259 as amended). Also of importance is the Civil Service preference afforded to many veterans who apply for jobs with municipalities, counties, and state agencies. This provision which currently applies to those who meet the state s service criteria provides veterans with an advantage on job opportunities, provided they pass Civil Service examinations and possess the required experience (11A:5-1.1; L.2000, c.127, s.3). The benefit is significant to many who are eager to work in Civil Service, and in recent years we have acted to expand this preference. Earlier this year, the Assembly passed legislation I drafted that expands the eligibility for veterans hiring preference in the Civil Service to veterans who currently do not meet the service criteria in the state (Assembly bill 1456). Education is another way in which New Jersey has been able to assist veterans. One initiative I am particularly proud of corrected a logistical problem with a pre-existing program. As it was under state law, active members of the New Jersey National Guard were eligible to receive up to 15 credits per semester tuition-free from public institutions of higher education in New Jersey. However, when military conflicts in Afghanistan and Iraq called Guardsmen into active duty, students had to discontinue their studies, and were subsequently eliminated from the tuition program upon their conclusion of active duty. Assembly Bill 2542 approved earlier this year as Pamphlet Law 2007, Chapter 11 extended the eligibility for this high- 6 NEW JERSEY LAWYER June 2007

7 er education tuition benefit. Under the new law, certain members of the New Jersey National Guard, whose use of the free tuition benefit is interrupted by deployment to active duty, would be permitted to receive the benefit after discharge from service. This example serves to illustrate that, with recent military action in Iraq and Afghanistan, an entire new generation of veterans is being created in New Jersey and throughout the country. They have unique needs, compared to veterans of other conflicts, and it is important for the state to step up and support them as they have supported us. Still, the focus of my role as committee chair is legislative, and one of our biggest and most interesting challenges came last year, inspired by a national headline. Beginning in early 2006, followers of the Kansas-based Westboro Baptist Church began protesting funeral services of fallen soldiers across the country. The group, which has a history of publicity stunts such as these, claimed that God is punishing American soldiers because the United States harbors homosexuals. The soldiers memorial services and funerals were disrupted by protests that included picket signs and shouting of messages such as: Thank God for Dead Soldiers. While no such demonstrations had taken place in New Jersey, the mere prospect had a palpable effect in the military and veterans community. The process of addressing this matter in New Jersey involved striking an appropriate balance between protecting the dignity of a soldier s funeral and the right to free speech afforded in the Constitution. While exercising those rights, protesters were impeding upon mourners rights to privacy, not to mention violating moral standards I had assumed were universal. We utilized input from military and veterans organizations, legal advisors to the Legislature, and colleagues. We worked through a number of issues in drafting the bill. We used the term protest to label the offensive action, instead of demonstration, which advisors said was too vague and could be misconstrued to include, perhaps, an unwitting person in a demonstrative T-shirt walking near the funeral. We used a tape measure and walked 500 feet from my office door, determining that it would be a fair and safe distance that would permit mourners the peace they deserve, and yet allow the protesters their right to free speech. A combination of both legal concerns and common sense led us to protect all funerals under the bill, not just military ceremonies. Once the bill was drafted and introduced, the complications began. Some colleagues worried that 500 feet was too far a radius. The federal government passed rather toothless legislation prohibiting protests at military funerals taking place on federal property only. The American Civil Liberties Union opposed similar bills in other states, in some taking a position on the side of groups like the Westboro Baptist Church. Complications aside, the bill made it through the legislative process, thanks to the vigorous support of veterans and military groups, and is now state law (2C:33-8.1; L. 2006, c.93, s.2.). If someone attempts to disrupt the funeral of someone in New Jersey, there are legal consequences a disorderly persons offense punishable by up to 18 months in jail and $1,000 in fines. However, like all legislation, not all military and veterans bills become law. For a variety of reasons, sometimes practical, often financial, some good bills have yet to advance, but the work continues. Jack Conners is a state assemblyman and deputy speaker representing the Seventh Legislative District. He is the current chair of the New Jersey State Assembly Military and Veteran Affairs Committee. NEW JERSEY LAWYER June

8 Offering Military Legal Assistance to the New Jersey Reservist: The State Bar Association s Response by William S. Greenberg On the cover of the March 26, 2007, edition of The New Yorker appeared a haunting and ambiguous reminder of the nation at war. A wounded soldier in combat uniform, in a wheelchair at the bottom of a steep and daunting staircase leading to a medical facility, was alone. Preoccupied with other matters were three medical personnel in the standard light blue of hospital workers, oblivious to the existence and the plight of the soldier. This combat veteran might have faced the very same challenges if it were March 1967, 1951, 1943, 1918, or even In each of those years unredeemed promises of medical and financial care had been made. In each of those years, there was no end in sight to a war in which the soldiers served and suffered. In each of those years plans were already being formulated, and programs begun, to treat the physical and emotional wounds of war, by government and private organizations. In Sept. 2006, the New Jersey State Bar Association launched a structured program of public service directed to all New Jersey Reserve component personnel called to active duty and deployed to Iraq or Afghanistan after Sept. 11, Not all of the grievous consequences of war suggested by the soldier depicted on The New Yorker cover are possible to redress with the implementation of the NJSBA program, but participants are manifestly at work, doing their part in the war effort for the service members regardless of their view of this or any war. The Program Every lawyer who volunteers to participate in the Military Legal Assistance Program must agree to two main contingencies in order to be of public service to the soldier. First, the volunteer attorney must be a New Jersey lawyer in good standing (though not necessarily a member of the New Jersey State Bar Association). Second, participants must forego all professional fees and reimbursement of out-of-pocket expenses, and further agree that if fee-shifting statutes provide fees or other reimbursement, all such monies will be donated to the military charity or military aid program of the lawyer s choice, and in that lawyer s name. Each participating lawyer registers with the program office at the New Jersey Law Center and lists the area of law or legal specialties in which he or she is willing to provide litigation or litigation-directed legal assistance. It is not necessary to be proficient, or even knowledgeable in military law, nor in the substantive law particular to the status of the client as a Reserve service member. The important element for the volunteer lawyer is the comfort level with litigation, or representation likely to lead 8 NEW JERSEY LAWYER June 2007

9 to litigation, in the particular specialty or area of the law. The NJSBA program is intended to provide representation to eligible service members when all other efforts at settlement or redress have failed, and litigation is the most likely means of providing a remedy. Litigation includes traditional court proceedings, administrative agency determinations, and alternate dispute resolution proceedings, including arbitration and mediation. The armed forces are unable to provide a uniformed lawyer qualified to represent the service member in civil litigation, either because of lack of lawyer resources or because military regulations prohibit such representation. While the military establishment has recently devoted considerable resources to increasing legal assistance (a military term of art generally encompassing all civil matters involving individual soldiers), there is insufficient personnel and uneven geographical distribution of military lawyers, to provide a stable source of representation now, and in the foreseeable future. This makes a legal assistance program a practical necessity for these troops. Experience has long been a good predictor of what the program may expect, and therefore what the program will need by way of lawyer volunteer specialty. All legal assistance is civil. The military provides lawyers in criminal or military justice cases. To the extent that there is a civil law component to what is an essentially quasi-criminal or criminal matter, our program lawyers may participate. But the heart and soul of this program is to provide for the service member in the everyday areas encountered by civilians and their attorneys. Employment and reemployment rights and responsibilities; creditor and debtor relationships; matrimonial and family matters, especially divorce and custody; and access to veterans and other military medical, financial and professional service benefits, are the bedrock issues upon which the association s program has been established. From High Point to Cape May, lawyers have volunteered for the state bar program administered at New Brunswick. Twenty New Jersey partners at McCarter & English alone have agreed to participate. The program will grow through awareness created by articles such as this, by the testimony to the New Jersey Assembly Military and Veterans Affairs Committee delivered early in March, through the annual military law institute in April, and by individual appearances before county and special bar associations during the next few months. Most important in the expansion of this program will be the power of word of mouth persuasion, lawyer to lawyer. While we are working today on our individual cases and clients, we must build the program through volunteer lawyers who will be available for the allbut-certain dramatic increase in clients the new troop deployments and the ultimate end of the war will engender. The program also anticipates the creation of training programs geared to the special needs of our reservists and the special requirements of federal and state law when service members are the subject of civil or administrative legal proceedings. Finally, the program anticipates that, consistent with professional responsibility and client privacy, appropriate public recognition of the lawyer volunteer will be offered by a grateful nation, state and local practice region. The Service Member All New Jersey residents who were called to active duty after Sept. 11, 2001, as members of a reserve component of the armed forces, who were deployed to, or overseas in support of, Iraq or Afghanistan, are eligible for assistance. The only other requirement is that the need for legal assistance must have arisen out of the military status of the service member as the result of the call to active duty. For example, a serviceman who is a member of the New York Army National Guard but a resident of New Jersey, and is on active duty in Iraq, is entitled to the benefits of the program in a dispute with his landlord over rent or the lease provisions, which arose because of his deployment. On the other hand, a member of the Army Reserve, also a New Jerseyan, who is deployed after Sept. 11, 2001, successfully completes the deployment and leaves military service, and then enters into a lease, is ineligible for the program when a subsequent dispute arises between landlord and former service member tenant. In short, the program is intended for the current, or former reservist, who, but for deployment to or in support of, Iraq or Afghanistan would not have had the specific civil litigation problem. A helpful way of regarding the service member and the specific intent behind this program is to examine the definitions and purposes behind the two most important federal statutes in this universe of military legal assistance. The Servicemembers Civil Relief Act, effective in Dec. 2003, had its origin in 1918 and Among its purposes, at 50 Appendix U.S.C.A. 501, 502, were provisions for, and strengthening and expediting the national defense through protection to servicemembers to enable (them) to devote their entire energy to the defense needs of the Nation and to provide for the temporary suspension of proceedings that may adversely affect the civil rights of servicemembers during their military service. The Uniformed Services Employment and Reemployment Rights Act, at 38 U.S.C.A. 4301, effective in Oct. 1996, was intended to encourage non career service by eliminating or minimizing the disadvantages to civilian careers and NEW JERSEY LAWYER June

10 employment to minimize the disruption to the lives of persons performing service as well as to the employers, fellow employees, and their communities, by providing prompt reemployment and prohibits discrimination against persons because of their service in the uniformed services. The spirit of the law has been enforced and reinforced through many state and federal proceedings over the years, and much litigation is to be expected because of the complexity of some specific provisions and because of ever-changing attitudes of courts and employers to military service. This is particularly true with regard to reserve components service in time of war. It should be remembered that this is the first truly extended period of war since the end of conscription in 1973, and the first war without full-scale national mobilization that has depended substantially upon the deployment of strategic reserve components for the tactical prosecution of the war. New Jersey will face more than its fair share of medical and financial civil litigation problems arising from the deployment and redeployment of reserve component forces when there is this level of commitment. According to the U.S. Department of Defense Annual Survey of the Status of Forces, during the past year alone, in any given month, the number of reservists deployed in Iraq or Afghanistan has been between 90,000 and 110,000. At any given time, the average composition of all deployed forces has included from 40 to 50 percent reservists. More than half the married reservists report a loss of income because of mobilization. Three quarters of reservists cite family burdens as the reason they leave the military. More than half cite too many deployments as their reason for leaving the military. The author believes these statistics, recent public revelations of bureaucratic bungling in the military and veterans medical and social services conceal a far more serious threat to the fabric of our military and to our society. With more than one million military personnel who will have been deployed and redeployed to combat or combat support before the end of this year, half of whom will be reservists, the time for volunteers, and public service among New Jersey lawyers is now. William S. Greenberg, a partner at McCarter & English, is a former New Jersey State Bar Association and Foundation trustee. He served as chair of the NJSBA Military Law Committee, and was a founding member of the Military Legal Assistance Program. A retired brigadier general, he has served as special litigation counsel (pro bono) to the National Guard Association of the United States and the Adjutants General Association of the United States. 10 NEW JERSEY LAWYER June 2007

11 Courts Martial: Process and Procedure by Michael Waddington For as long as there has been war, there has been a need for military forces to maintain discipline within the ranks. The history of the court martial dates back to the Roman Empire, where the earliest known written code of military justice is found. 1 The Roman Army addressed many of the same disciplinary infractions as the modern U.S. military, including desertion, disrespect to a superior officer, and cowardice. Punishment under the Roman code was often severe, and included decimation (death), denial of sepulture (burial rights), maiming, and exposure to the elements. The Roman code served as the foundation for later military justice codes in Europe and the Americas. 2 The original American military justice code, which predates the U.S. Constitution and the Declaration of Independence, was called the Articles of War. 3 This early system was modeled after the 1774 British Articles of War, which was shaped by the Medieval court of chivalry and the written military code of King Gustavus Adolpus of Sweden in These two historical developments identified the need for honor, high morals, and discipline in the military. More importantly, both recognized the need for the modern concept known as due process. 4 The United States military justice system remained virtually unchanged until after World War II. 5 During World War II, approximately 2 million service members were court martialed, resulting in over 80,000 felony convictions. After the war, many bar associations and veterans groups demanded a system that was similar to the civilian criminal courts. In 1947, the first secretary of defense, James Forrestal, led the charge in establishing a uniform system of military justice for all branches of service. Prior to 1947, each service had a separate, although similar, military justice system. As a result, the first Uniform Code of Military Justice (UCMJ) was enacted in From 1950 through today, the military justice system has undergone major changes that have helped create an open and fair judicial system for America s service members. Some of the major changes include: a requirement that defense counsel be licensed attorneys; the adoption of military rules of evidence based on the Federal Rules of Evidence; and an independent trial judiciary. 7 The modern UCMJ is a comprehensive criminal code. It covers conduct affecting good order and discipline in the military, such as being absent without leave (AWOL), disrespect toward superiors, disobeying orders, desertion, dereliction of duty, conduct unbecoming an officer and gentleman, malingering, misbehavior before the enemy, spying, and many other military-related offenses. The UCMJ also includes crimes that are commonly punished in civilian court, such as rape, murder, larceny, drug offenses, and assault. 8 Commanders Have Prosecutorial Discretion The preamble to the Manual for Courts Martial (MCM) explains that the purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. 9 A major difference between the military justice system and the civilian criminal system is that in the military system, commanders (experienced commissioned officers) are given broad discretion on how to handle misconduct. Military commanders have a wide range of tools at their disposal to maintain good order and discipline, and to promote efficiency and effectiveness in the military. NEW JERSEY LAWYER June

12 Military Jurisdiction Generally, court martial jurisdiction is only exercised over active service members. 10 As long as a service member is on active duty, he or she is subject to the UCMJ. Jurisdiction normally ceases when the service member receives a valid discharge certificate. A reservist is only subject to court martial jurisdiction when the offense was committed while on active duty or in an inactive duty training status. Meanwhile, Army National Guard or Air National Guard personnel are only subject to the federal military justice system while they are performing federal service. 11 Worldwide Jurisdiction The UCMJ has worldwide jurisdiction. 12 The system was designed to travel anywhere the American military deploys. Currently, in Iraq and Afghanistan, courts martial proceedings are conducted in a variety of settings, depending on the space availability and mission requirements. It is not uncommon for a court martial to be conducted in a large tent, or in a dingy building once used by Saddam Hussein s forces. Depending on the location, court martial participants, except for the defendant, may have their weapons close at hand. In Cases of Joint Jurisdiction, Who Will Prosecute Commonly, both civilian and military courts have jurisdiction over an offense. In this situation, military authorities must coordinate with the state and federal prosecutors to determine who will prosecute. Although rare, a service member may be prosecuted in state court and in military court for the same offense, with certain limitations. However, the U.S. Constitution s double jeopardy clause protects an accused from being prosecuted in military and federal court for the same offense. 13 Additionally, an American service member may be tried by a foreign country for offenses committed in that country, unless the country has an agreement relinquishing jurisdiction to the United States. Such an agreement is called a status of forces agreement (SOFA). The United States has SOFA agreements with the majority of countries where the nation s military operates. 14 Basic Suspect Rights Under the UCMJ, service members who are suspected of a crime are afforded basic rights. These suspect rights are more comprehensive than the rights offered to civilian suspects. Under Article 31 of the UCMJ, service members have a right against self-incrimination, and they must be informed of their suspected crimes before being questioned. 15 Furthermore, all service members are entitled to have a free military defense lawyer when they are questioned as a suspect, presented with court martial charges, or are arrested or apprehended. However, unlike the civilian system, defense counsel is provided free of charge regardless of whether a service member has been deemed indigent. 16 Pretrial Confinement In the military, when a service member is suspected of a crime, the accused s commander has the authority to place the service member in jail. 17 Once put in pretrial confinement, no bail or bond is set. Pending trial, the accused remains in confinement until his or her commander, a military magistrate, or a military judge chooses to release him or her. While in pretrial confinement, the accused remains employed by the military and continues to receive pay and allowances. 18 Non-Judicial Punishment (NJP) Non-judicial punishment (NJP) is a command leadership tool. It gives military commanders a quick means of maintaining good order and discipline. NJP is intended to efficiently correct misconduct at a relatively low level without the stigma of a federal conviction. NJP does not constitute a criminal conviction. 19 The majority of crimes that occur in the military are dealt with by using NJP. Before imposing NJP, the commander must notify the accused member of the charges and provide him or her with supporting evidence. The service member may then seek legal advice. The service member can choose to accept the NJP or refuse the NJP and demand a trial by courts martial. 20 It is crucial that a service member seek expert legal advice before the NJP proceedings. Turning down NJP and demanding a court martial should be done with extreme caution. Before turning down NJP, the accused must be fully advised of the serious, long-term consequences that may occur as a result of a court martial. 21 Punishments at NJP vary based on the rank of the accused. Generally, punishments include: reduction in rank (enlisted only), forfeiture of up to twothirds of a month s pay per month for two months, restriction, extra duty, and a reprimand. The maximum punishment at NJP varies based on the rank of the officer imposing the punishment; the higher the rank, the greater the punishment. 22 Prosecutorial Discretion The military justice system is different from the civilian criminal system because prosecutorial discretion lies with the commander rather than the prosecutor and law enforcement. A military commander has a wide range of options available to resolve disciplinary problems, including: 1. The commander can take no action. 2. The commander may choose to take administrative action, including a reprimand, rehabilitative transfer to another unit, counseling, or an admin- 12 NEW JERSEY LAWYER June 2007

13 istrative separation. The commander may chose to separate a service member for misconduct, homosexual conduct, pregnancy/ lack of a family care plan, failure to adapt to military life, failure to meet height/weight standards, and many others. Furthermore, an administrative separation can result in the following types of discharges: honorable, general under honorable conditions, or under other than honorable conditions. 3. The commander may use non-judicial punishment to address disciplinary infractions. 4. The commander may choose to dispose of the offenses with a trial by court martial. 23 Convening Court Martial The military does not have permanent trial courts. Therefore, courts martial are convened or assembled on an as needed basis by military commanders. The UCMJ details which commanders may convene a court martial. The commander with power to convene a court martial is called the convening authority. The convening authority determines the type of court martial that the accused will face, and the convening authority selects the court members (the military jury) that will hear the case and determine a sentence. 24 Independent Judges and Defense Lawyers A modern improvement in the American military justice system is that the trial judiciary and defense lawyers function independently from the prosecution and the command. Military judges are required to remain fair and impartial when presiding over courts martial. Military defense lawyers have the same duties as their civilian counterparts. They owe the utmost loyalty toward their clients and are supposed to zealously advocate on their behalf. 25 Unlawful Command Influence A common concern with the military justice system is that senior personnel will influence military jurors, witnesses, and others involved in the military justice process. This is known as unlawful command influence (UCI). UCI is often referred to as the mortal enemy of military justice. 26 UCI calls into question the validity of the military judicial process, demoralizes military members and their confidence in the system and their command, and reduces public confidence in the military. 27 While instances of unlawful command influence seldom arise, the military justice system has rules in order to limit its cancerous effects. 28 Court Martial Procedures Court martial trials are procedurally similar to civilian criminal trials. Military trials involve a prosecutor (trial counsel), defense attorney,29 military judge, 30 bailiff, court reporter, 31 and if elected by the defendant, a panel of military members (a jury). 32 A military panel is comprised of officers and enlisted personnel from the same command or from the same community as the accused. All members of the panel must outrank the accused. The military panel is selected by the convening authority based on various factors such as experience, rank, and age. 33 The accused is entitled to an impartial court martial panel. While the prosecution and defense may voir dire the panel, questioning is often limited by the military judge. Both sides may challenge panel members for cause. However, each side may preemptively strike only one panel member. 34 Court martial proceedings are open to the public and the media with a few exceptions. For example, the military judge may close the proceedings when classified information will be disclosed. 35 The accused may choose to have the judge, rather than the panel, decide his or her guilt or innocence. However, if the accused elects to be tried by a panel, then the panel also will decide the sentence to be imposed. Likewise, if the accused elects to be tried by a judge alone, then the judge will determine the sentence. 36 Also unique to military trials, when the prosecution and defense have finished questioning any witness, the panel may ask questions of the witness. 37 Right to Counsel In the military justice system, a service member facing court martial has three options when electing counsel. First, he or she may select to be represented by a military defense counsel at no cost. Second, he or she may request another free military attorney by name. If that attorney is available, then he or she will be appointed to represent the accused. Third, the accused may hire a civilian defense counsel. If the accused elects to hire a civilian defense lawyer, then the accused is responsible for paying the civilian attorney s fees and travel expenses. Nevertheless, the accused may request to keep his or her military attorney on the case to assist with the defense as well. 38 Deliberations on the Findings In the military system, hung juries do not exist. In order to find a defendant guilty, two-thirds of the panel must vote for a finding of guilty. The only exception is death penalty cases, which require an unanimous verdict. At a court martial, the burden of proof is the same as in any civilian criminal court. The prosecution must prove that the accused is guilty of all elements of the offense beyond a reasonable doubt. 39 Deliberations on the Sentencing If the accused is found guilty of an offense, then sentencing proceedings begin immediately. During the sentenc- NEW JERSEY LAWYER June

14 ing proceedings, the prosecution presents evidence in aggravation, victim impact, and effect on the unit s discipline and morale. The defense is permitted to present extenuating and mitigating evidence in an attempt to gain a lower sentence. Both sides are permitted to offer witness testimony and documentary evidence. It is common for military sentencing case to last several hours or longer. Both the prosecution and defense are permitted to give sentencing arguments to the court members or military judge. 40 When determining what sentence to impose, two-thirds of a panel must agree on the sentence, unless the sentence is for more than 10 years or life, in which case three-fourths of the panel must agree. In death penalty cases, the panel must unanimously agree on death. 41 Article 32 One of the greatest procedural safeguards for military personnel facing felony courts martial is known as the Article 32 hearing. The purpose of an Article 32 investigation is to avoid trials on unfounded accusations. At an Article 32 hearing, there is no judge and the rules of evidence do not apply. An impartial investigating officer is tasked with determining whether there is sufficient probable cause (reasonable grounds) to believe a crime was committed and that the person accused of the crime committed it. 42 Before charges can be sent to a general court martial (felony level), the UCMJ requires that the charges be screened by a thorough and impartial investigation of all the allegations, under Article 32, U.C.M.J. Unfortunately, many military lawyers call the Article 32 a rubber stamp, and often convince their clients to waive the hearing with the hopes that they will receive a good deal if they later decide to plead guilty. However, waiving the Article 32 should be done rarely and only for a legitimate strategic or tactical purpose. 43 Experienced military defense attorneys appreciate the value of the Article 32 hearing and use it with devastating effectiveness. At an Article 32 hearing, the accused has numerous rights that are not present at the grand jury, including: 1. Notice of the charges, name of the accuser, the evidence, and the witnesses against him or her; 2. The right to have counsel present; the right to production of witnesses; the right to have counsel question and confront witnesses against the accused; and the right to present evidence favorable to the accused; and 3. The right to be present throughout the entire Article 32 hearing. 44 Summary Court Martial Trial by summary court martial provides a simplified procedure for the resolution of charges involving minor incidents of misconduct. The summary court martial is presided over by an officer from the same command as the accused but not a direct supervisor. The officer does not have to be a lawyer. 45 The maximum punishment a summary court martial may impose includes confinement for up to 30 days, forfeiture of two-thirds pay for one month, and reduction to the lowest pay grade (E-1). The accused must consent to be tried by a summary court martial. 46 Special Court Martial A special court martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused also may request trial by judge alone. 47 Regardless of the offenses involved, a special court martial sentence is limited to no more than 12 months confinement, forfeiture of two-thirds basic pay per month for six months, a bad-conduct discharge and reduction to the lowest pay grade (E-1), 90 days hard labor without confinement, a reprimand, and restriction. 48 General Court Martial A general court martial is the most serious level of military courts. It consists of a military judge, trial counsel, defense counsel, and at least five court members. Again, an enlisted accused may request a court composed of at least one-third enlisted personnel. Unless the case is one in which the death sentence could be adjudged, an officer or enlisted accused also may request trial by judge alone. 49 In a general court martial, the maximum punishment is that established for each offense under the Manual for Courts-Martial, and may include death (for certain offenses), confinement, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, or a number of other lesser forms of punishment. 50 A pretrial investigation under Article 32, UCMJ, must be conducted before a case may be referred to a general court martial. 51 Appellate Court Review If a court martial sentence includes a sentence of death, confinement for one year or more, a punitive discharge such as a dishonorable discharge, bad conduct discharge or dismissal, then the case is automatically reviewed by the accused service s court of criminal appeals. Each branch of the military service has its own court of criminal appeals comprised of appellate military judges. The judges may be commissioned military officers or civilian attorneys, all of whom must be licensed lawyers in good standing with their bar. The court of criminal appeals has the power to correct legal errors and reduce excessive sentences. The court may make findings of law and facts in reviewing the record, 14 NEW JERSEY LAWYER June 2007

15 unlike civilian appellant courts that generally only make findings of law. 52 The United States Court of Appeals for the Armed Forces (CAAF) oversees the military justice system and is comprised of five civilian judges appointed to serve 15-year terms. Court of criminal appeals decisions are subject to review by CAAF. 53 Service members also may petition the United States Supreme Court to review their case. CAAF decisions are subject to review by the Supreme Court by writ of certiorari. 54 Clemency After a court martial is concluded, the accused may submit a request for clemency to the convening authority. The accused may present evidence to mitigation and extenuation. The convening authority may suspend or dismiss a part of or the entire sentence. As part of clemency, the convening authorities often suspends the forfeiture of pay and directs that it be paid to the service member s family. 55 Endnotes 1. Schlueter, David A., Military Criminal Justice: Practice and Procedure, (6th ed. 2004), at Id. 3. Id. at Id. at Id. at Public Law 506, 81st Congress, c.169, sections 1, 64 Stat. 108; Title 50 USC (chap. 22) sections , The Manual for Courts-Martial (MCM), United States, 1951, was prescribed by Executive Order signed by President Truman, Feb. 8, The MCM became effective on May 31, Brig. Gen. John S. Cooke, USA, Retired, Military Justice and the Uniform Code of Military Justice, Army Lawyer, March 2000, 2; Hon. Walter T. Cox III, The Army and the Constitution, Military Law Review 118 (1986): 2, 7, and Articles , U.C.M.J. 9. Manual for Court Martial, Part 1, Preamble, Section Articles 2 and 17, U.C.M.J. 11. Article 3 U.C.M.J. 12. Article 5, U.C.M.J. 13. Schlueter at Id. at Article 31, U.C.M.J. 16. M.R.E. 305(d), (e); R.C.M. 506(a). 17. Articles 7, 9, and 10, U.C.M.J. 18. R.C.M Article 15, U.C.M.J. 20. Id. 21. Id. 22. Id. 23. Schlueter at Articles 22-24, U.C.M.J. 25. Schlueter at 434, 442; AR 27-10, para United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). 27. Schlueter at Articles 37, 98, U.C.M.J. 29. Article 27, U.C.M.J. 30. Article 26, U.C.M.J. 31. Article 28, U.C.M.J. 32. Articles 26-28, U.C.M.J. 33. Article 25, U.C.M.J. 34. R.C.M R.C.M. 806, M.R.E R.C.M R.C.M. 913(c). 38. Article 38(b)(2), U.C.M.J., R.C.M 506(a). 39. R.C.M Article 18, U.C.M.J. 41. R.C.M. 1006; R.C.M. 1004(b)(7). 42. R.C.M R.C.M. 405(k). 44. R.C.M Article 16, U.C.M.J. 46. Article 20, U.C.M.J. 47. Article 16, U.C.M.J. 48. Article 19, U.C.M.J. 49. Article 16, U.C.M.J. 50. Article 18, U.C.M.J. 51. Article 32, U.C.M.J. 52. Article 66, U.C.M.J.; R.C.M Article 67, U.C.M.J.; R.C.M Article 68, U.C.M.J. 55. R.C.M. 1107, Michael Waddington is a partner in the Augusta, Georgia, law firm of Waddington, Gonzalez & Myatt, LLC. His worldwide practice focuses on court martial defense. He has represented American soldiers in several high-profile cases stemming from the war on terror both in the United States and abroad. NEW JERSEY LAWYER June

16 Getting Fired by the Military (and What You Can do About It) by David P. Price Working for the military is unlike working for any other employer. First is the ever-present employment contract, 1 which is distinct from virtually any other employment contract, and contains not only civil obligations, penalties and remedies, but criminal sanctions that can be imposed against those who violate the contract or whose period of employment is terminated due to misconduct by the service member prior to the scheduled expiration date of the contracted obligation. 2 This article will address what happens when a decision is made by the military to terminate a service member s term of service before it would come to its contractual end, along with the different processes available to a service member to challenge or attempt to upgrade their discharge. The article will conclude with a discussion of the processes available to a service member to petition for correction of their military records. There are two broad categories of military personnel enlisted and officer. These two categories are roughly equivalent to the civilian categories of labor and management. Enlisted personnel enter into an enlistment contract. An enlistment contract will be for a specific period of time. Officers, on the other hand, are commissioned, and after the initial contractual period of service is completed, serve for an indefinite period of time at the pleasure of the President. All military personnel officers and enlisted initially enter into a contractual period of obligated service known as a minimum service obligation (MSO). The law provides that the MSO must be for not less than six years and not more than eight, although it is Department of Defense (DOD) policy that the initial MSO will be for eight years. 3 For most individuals, the MSO will consist of some period of full-time active duty, followed by some period of inactive or reserve duty. A typical MSO may consist of four years of active duty, followed by four years in the reserves. The method by which an individual is accessed into the service will generally drive how the MSO is initially established. 4 For example, a graduate of a military service academy (i.e., the U.S. Military Academy at West Point; the U.S. Naval Academy; the U.S. Air Force Academy; the Coast Guard Academy) will generally incur a five-year active duty obligation, followed by a three-year reserveobligation. Scholarship Reserve Officer Training Corps (ROTC) graduates will generally incur a four-year active duty obligation followed by a four-year reserveobligation. For both officer and enlisted personnel, the specific active duty and/or reserveobligation will be driven by the individual s method of accession, military occupational specialty (MOS), and special schools or training that have already been received or will be provided in the future, among other factors. Those who desire to do so, and have been selected by the service to do so, may continue on active duty beyond their initial active duty obligation and complete their MSO on active duty, rather than in the reserves. In addition to the initial contractual obligation, a service member may thereafter incur additional obligated service either active duty or reserve by, among other things, accepting additional training or bonuses, or simply by executing a set of permanent change of station (PCS) orders. By way of example, each time the military moves a service member, that individual s personal effects and, if they have one, their fami- 16 NEW JERSEY LAWYER June 2007

17 ly, an additional obligation is incurred by virtue of the military having expended money to provide for the move. Ultimately, the service member may serve time on active duty, in the Reserves, in the National Guard, or some combination of the three. Leaving the Military Punitive and Administrative Separations Distinguished When the service member s period of service comes to an end, he or she will be separated or discharged. Although there is a distinction between the two for example, a person may be separated (or released) from active duty, but not discharged from the service because the reserve obligation of the MSO has not yet been fulfilled in many instances the two terms may have a synonymous meaning. Every living service member will eventually go through either a punitive or an administrative discharge/separation process when their military service comes to an end. Although this article will not address punitive discharges in any significant degree, it is important to understand the two types of discharge processes in order to better appreciate the administrative separations that will be covered. A punitive discharge is, as the name implies, issued as a form of punishment. A punitive discharge can be awarded only by either a special court martial (SPCM) or a general court martial (GCM). 5 A conviction by either a SPCM or a GCM is considered a federal conviction. Although the military legal system does not categorize its criminal trials or convictions as misdemeanors or felonies, for practical purposes a SPCM may be considered as the equivalent of a misdemeanor conviction, because the maximum punishment (referred to as a jurisdictional limitation) that can be awarded by a special court martial cannot exceed 12 months confinement. 6 Similarly, a GCM is most commonly considered to be the equivalent of a felony conviction because confinement for more than a year and a day may be awarded, although one should not necessarily presume that in all instances conviction at a GCM is equivalent to a felony conviction. 7 Punitively there are three characterized discharges. 8 For enlisted personnel the two types of characterized punitive discharges are the bad conduct discharge (BCD) and the dishonorable discharge (DD). 9 A BCD can be awarded by either a SPCM or a GCM. 10 Only a GCM may award a DD. 11 In the case of an officer, the only punitive discharge that can be awarded is a dismissal, which is the officer version of the dishonorable discharge, and can be awarded only by a GCM. 12 All service members who are not punitively discharged are administratively separated. By far, the vast majority of military personnel are administratively separated when their service comes to its scheduled end. Administratively, there are three characterized discharges: honorable, general under honorable conditions (general), and other than honorable (OTH). There also is an uncharacterized administrative separation, known as an entry-level separation (ELS). 13 An honorable discharge is reserved for those personnel whose performance of duty is of the highest level. A general discharge is for those who have served honorably, but whose overall performance falls below the level expected for an honorable discharge. An other than honorable (OTH) discharge is for those whose performance of duty has fallen below acceptable levels. An OTH is most often issued for misconduct, commonly one of the following: commission or conviction of a serious offense, pattern of misconduct or drug abuse. An important point is that there are a number of situations where a service member faces mandatory processing for separation, but such mandatory processing does not require mandatory separation. The difficulty that arises is that many military personnel who sit in judgment in these cases do not appreciate the legal distinction between the two terms. Therefore, in practice, it is very often the case that mandatory processing results in a de facto mandatory separation. Additionally, the specific situations for which mandatory processing may exist varies from service to service. For example certain sexual harassment cases require mandatory processing in the Department of the Navy, but not in the Department of the Air Force. The ELS, on the other hand, is a discretionary type of discharge that is only available to be considered during the first 180 days of a service member s military employment. Essentially, the ELS is available so a person who is rather quickly identified as being unsuitable for military service is neither provided a lifetime of benefits nor stigmatized for life as a result of a very brief period of service. Administrative separations are broadly divided into two categories: voluntary and involuntary. As those terms imply, a voluntary administrative separation is one that is initiated by the service member; an involuntary separation is one initiated by the military service. Among the voluntary administrative separations, completion of obligated service and retirement are probably the most common. The general rule is that a service member must have 20 years of service qualifying for retirement in order to receive retirement benefits. Completion of obligated service is simply when a member of the military has completed serving for the specified period of time. Completion of obligated service will generally not be sufficient to earn retirement eligibility. All voluntary administrative separations will result in either an honorable or a general dis- NEW JERSEY LAWYER June

18 charge. The category of involuntary administrative separations can be divided into two groups: Those for which only an honorable or general discharge may be awarded (sometimes referred to a type warranted by service record or TWSR) and those for which an honorable, general or OTH characterization may be awarded. For TWSR involuntary separations, the service is generally only required to provide notice and an opportunity to be heard to the service member. In these situations, however, the opportunity to be heard does not generally include the opportunity to present a case at a hearing-type of proceeding. Rather, the opportunity is generally limited to submission of documentation to be considered by the service in reaching a final decision on the matter. These processes are generally called notification procedures. For notification procedures, the commanding officer who initiates the procedure referred to as the convening authority initiates the paperwork that notifies the service member of the specific reason why the administrative separation process has been commenced. The service member is provided a number of rights. However, the only substantive right is the opportunity to provide a statement to the officer who will make the final decision on the separation referred to as the separation authority. There is no formal hearing process involved in a notification procedure case. There are several exceptions to this general rule, however, when a service member is entitled to a hearing proceeding. The two most common such situations are for any service member with six or more years of service, because they have been determined to have sufficient time invested in their career to warrant the additional protections of a hearing; and when a service member is processed for separation based upon allegations of homosexuality or engaging in a homosexual act, because of the cultural stigma that still exists regarding such allegations. 14 For involuntary administrative separations for which an OTH may be awarded, a service member is always entitled to present a case at a hearing before a three-member panel. For enlisted personnel, this is referred to as an administrative separation board; for officers it is referred to as a show cause board or board of inquiry. For these cases, the process is initiated by the convening authority issuing an administrative separation board letter of notification. In most enlisted cases, this is a locally initiated process. For officer cases, however, the convening authority is very often directed by the respective service s personnel headquarters to initiate such action. For all involuntary administrative separations there are generally four sequential decisions that may need to be made: 1) Did the behavior alleged occur; 2) If so, should the service member be retained or separated; 3) If separated, what characterization of service should be awarded; and, 4) Should the separation be suspended. In most situations, if the member has 20 or more years of service, they are generally provided the option to waive their separation hearing and retire. Under these types of situations, however, there will usually be a provision that the secretary concerned (e.g., secretary of the Navy) has the discretion to determine at what pay grade the member will be retired. There are specific lengths of minimum satisfactory service that must be met in order to retire at a particular pay grade. If a service member is being involuntarily separated and has elected to retire in lieu of that administrative separation processing it is almost a given that a question exists regarding whether that person has satisfactorily served in the current pay grade. For all services, higher authority is not permitted to increase the severity of a recommendation by an administrative separation board or board of inquiry. Thus, for example, if the board were to recommend an honorable discharge, higher authority is not permitted to issue a less favorable discharge. Similarly, for the four traditional military services (i.e., Army, Navy, Marine Corps, Air Force), if a board were to find no misconduct, higher authority is bound by that determination. Each service secretary, however, retains the inherent right to separate a member for the good of the service. For the U.S. Coast Guard, however, the determination of the board in finding no misconduct is not binding on higher authority; and higher authority may overrule that finding and separate the member, although the characterization of service would be under honorable conditions. 15 Within all categories of involuntary administrative separations there are two further subcategories: those for which administrative separation processing is mandatory and those for which the command is given discretion in determining whether to process the person for separation. For mandatory processing, if the command believes credible evidence exists that the prohibited behavior has occurred, the convening authority is required to process the person for separation. Misconduct, drug abuse and homosexuality or engaging in homosexual acts are examples of mandatory administrative separation processing cases. For most situations, it is a discretionary decision by the convening authority whether a service member will be processed for administrative separation. Examples include most of the various reasons under the broad category of misconduct. For example, misconduct pattern of misconduct, which is a category covering a broad number of 18 NEW JERSEY LAWYER June 2007

19 minor instances of criminal and disciplinary infractions. Discharges Based Upon Medical Conditions A distinct type of administrative separation processing involves those situations where a service member has incurred an illness or injury that may result in the member being found unfit for continued military service as a result of that medical condition. This situation covers what may be considered to be the military s worker s compensation benefits. 16 Generally, this process begins when military healthcare providers identify a condition that raises questions about whether the service member meets retention criteria. Notably, the physical condition requirements to commence military service are higher than they are to remain in the military. Once a service member is identified as having a medical condition that raises concerns about his or her qualifications to continue in the military, however, his or her records will be reviewed by a medical evaluation board (MEB). If the MEB determines the service member does not meet retention criteria, the records are forwarded to an informal physical evaluation board (IPEB). The IPEB will review every identified medical condition of that service member and determine if any such conditions render the service member unfit. If any such conditions do render the service member unfit, further determinations must be made to identify the conditions that are eligible for consideration of a disability rating. Among the things to be considered are whether it was a condition existing prior to service (EPTS), and if so, whether it was aggravated by the service member s military service or simply made a normal progression; whether it was incurred while entitled to basic pay; and whether it was incurred due to the member s own misconduct. If all the right determinations are made, the condition is considered to have been incurred incident to service, and is eligible for a disability rating. For personnel with eight or more years of total active duty service, no medical conditions will be considered to be EPTS. There is a rebuttable presumption that any medical condition was incurred incident to service. There are some glaring exceptions to that presumption, however. The first is that any illness (as opposed to an injury) that first presents within 180 days of continuous active duty was EPTS and is not incident to service. It is possible for a service member to present evidence that the illness was not EPTS, but this is a troublesome and difficult thing to prove for many illnesses (e.g., auto-immune illnesses), and very often catches mobilized reserves and National Guard personnel because they may go through a number of short-term, consecutive sets of orders, none of which are more than 180 days in length, before an illness presents itself. If all the right determinations are made to reach a finding by a formal PEB (FPEB) that a service member is unfit for continued military service, but has a ratable disability that was incurred incident to service, then further determinations must be made to determine whether the service member will be separated or medically retired. The two issues to be addressed at this point are whether the condition has stabilized or reached full period of recovery, and whether the total disability rating for all unfitting conditions is rated at 30 percent or higher using the Department of Veterans Affairs schedule for rating disabilities (VASRD) as modified by individual service regulations. 17 The VASRD provides a listing of all known or comparable disability conditions of the body, and rates each disability rounded to a 10th percentile, based upon its severity, from zero to 100 percent, although not every such condition is rated in exact 10 percent increments from zero to 100 percent. For example, a specific condition may be rated at zero, 10, 20, 50 and 100 percent. If the condition has not stabilized, the service member should first be provided the full period of convalescence and treatment options available. If the total disability rating is then determined at 20 percent or less, the service member will be separated and given a single separation check calculated at two times base pay, times years of service, not to exceed 12 years or 24 months of base pay. The real diminishment of benefits here is that a service member with 17 years of service (i.e., one only three years from retirement eligibility) gets the exact same 24 months of base pay as a service member with only 12 years of service. After being separated, the now former service member can go to the Department of Veterans Affairs (VA) for benefits and treatment. Generally, the VA will rate medical conditions at a higher disability rating than the military service. Also, the VA will rate all medical conditions, not just those that render a service member unfit for continued military service. This is because the VA and the military services operate under different laws and regulations pertaining to medical conditions. Notably, if a service member is separated and then received benefits from the VA for the same condition, each month the VA recoups a portion of the benefits it would have paid until all money paid by the military service has been recouped. By various regulations, a service member may be considered to have reached sanctuary upon completion of 18 years of service qualifying for retirement. Sanctuary is not a 100 percent safe haven, and a service member can still be separated prior to reaching retirement eligibility. In the military, however, NEW JERSEY LAWYER June

20 sanctuary is traditionally a point in time where extra efforts are provided to try an assist a service member in reaching the 20 years of qualifying service retirement point. If the condition has not stabilized and the disability rating is set at 30 percent or higher, then the member may be placed on the temporary disability retired list (TDRL) for a period not to exceed five years. While on the TDRL, the member is periodically reevaluated (at roughly 18-month intervals). At any of those reevaluations, the member could be returned to active duty, separated, continued on the TDRL for the remainder of the five years, or permanently retired. While on the TDRL, the member will receive a percentage of his or her base pay. The pay to be received is calculated at the disability rating established at that point times base pay; however, it will not be less than 50 percent of base pay. When a service member is determined to be permanently disabled and the disability rating is 30 percent or higher, the member will be placed upon the permanent disability retired list (PDRL). Once on the PDRL, the retirement is permanent. Historically, the maximum disability retired pay that a service member could actually receive could not exceed 75 percent of base pay, because until very recently, no matter how long a service member served, retired pay could not exceed 75 percent of base pay. As a result of recent legislative changes permitting military personnel meeting certain requirements to receive more than 75 percent of base pay upon retirement (e.g., 100 percent of base pay with 40 years of service), it should be expected that disability retired pay may similarly increase. 18 One caution that all service members must take into consideration when going through the MEB/IPEB/FPEB process is that the next level of review (e.g., FPEB) is not bound by the determinations of the previous level (e.g., IPEB). Thus, it is possible for the IPEB to find a condition ratable, but if the service member is dissatisfied with the granted disability rating and appeals to the FPEB, it is possible that the FPEB may end up determining that the condition was EPTS and, therefore, not ratable. There is a tremendous difference between a condition being rated at zero percent and a condition being determined to be non-ratable. A zero percent rating means the condition is service connected, but does not currently have a significant impact on the service member s ability to perform duties. If the service member is separated/retired for that condition, and the condition worsens, then the VA automatically accepts the service connection determination and can increase the disability rating over the course of years. If, however, the disability is considered to be non-ratable, then the determination has been made that the condition is not service connected. While the VA will, upon application by the service member, make its own determination regarding service connection, the odds are already against the VA making a favorable service connection decision. Further, even if ultimately they do find favorably for that issue, substantial additional time and effort will be required by the service member to achieve that objective. Correcting Records and Upgrading Discharges A recurring and longstanding belief among many service members is that unfavorable discharges are either automatically upgraded after six months or that obtaining a discharge upgrade is a relatively frequent occurrence. To the contrary, for the vast majority of personnel the discharge characterization that is awarded is the discharge characterization that will remain. If, however, a current or former service member believes his or her official military record is in error, or that he or she has been wronged by the service with regards to their discharge, procedures do exist for filing petitions for correcting military records through each service s board for correction of military records (BCMR). 19 Additionally, for those situations only concerning discharge determinations, the former service member may petition for changes through the service s discharge review board (DRB). 20 BCMRs can consider almost all military records, and are tasked with reviewing petitions filed within three years of the alleged wrong. The BCMR may, in its discretion, consider petitions that are filed more than three years after the alleged wrong, and generally require that the petitioner who has filed a petition show good cause for his or her delay in doing so. On the other hand, DRBs are permitted to review petitions filed within 15 years of the date of discharge, but are not permitted to extend that 15-year filing period deadline. Additionally, as their name implies, DRBs are limited to only reviewing discharge issues. Further, DRBs are precluded from reviewing two specific discharge situations: those arising from the disability evaluation system (i.e., PEBs) and those resulting from punitive discharges awarded at a general court martial (GCM). 21 For these two specified categories of cases, review may only be conducted through the BCMR, and for GCM cases, through the military criminal appeals process. DRBs are limited in their jurisdictional authority to examining the propriety and equity of an applicant s discharge and to effect changes, if necessary. 22 Essentially, propriety examines whether there was an error of fact, law, procedure, or discretion concerning the discharge, and whether the petitioner s rights were prejudiced as a result of such error. Equity will examine whether the 20 NEW JERSEY LAWYER June 2007

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