Soldier s Training Manual

Transcription

1 Soldier s Training Manual Paralegal Specialist 27D The Judge Advocate General s Legal Center and School 600 Massie Road Charlottesville, VA APRIL 2011

2 This publication is available for download from JAGCNet (

3 Introduction Chapter 1 The Basics Chapter 2 Military Justice Chapter 3 Legal Assistance Chapter 4 Claims Chapter 5 Administrative Law Chapter 6 Operational Law Appendix References Table of Contents Table of Contents i

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5 Introduction This training manual is a compilation of various subjects designed to assist Paralegals in accomplishing their daily duties. The information contained herein has been derived from various sources which include but are not limited to; Army Regulations, Field Manuals, the Operational Law Handbook, SOPs, and input from professionals within the field. This manual can be used as a training guide but in no way encompasses all tasks associated with being an Army paralegal. Many of the manual s Tasks have Performance Measures which are designed to test a Soldier s knowledge about a specific subject; however, not all Tasks have Performance Measures. In addition to the standard Task style lessons, there are a few information papers designed to help explain certain topics. This manual is designed to be a supplement to your resource library. Specific guidance on how to implement this training manual into your local training program is at the sole discretion of leaders at the local level. The intention of this manual is to provide all skill levels with a general understanding of the topic being presented. There are many examples of how to properly fill out forms, reports, and memorandums. The 27D Soldier s Manual is a tool to be used by all paralegals. This manual can be used as a standalone training tool, or can be used to compliment a more in depth block of instruction. Information in the legal field changes frequently. Paralegals at all levels should strive to stay abreast of changes and follow that guidance appropriately. Suggestions, comments, or corrections to this manual should be sent to: The Judge Advocate General s Legal Center & School ATTN: Training Developments Directorate (TDD) 600 Massie Road Charlottesville, VA Introduction iii

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7 Chapter 1 The Basics Tasks 1. Identify Staff Judge Advocate Operations 2. Prepare Military Correspondence 3. Use JAGCNet 4. Conduct Law Library Research 5. Conduct Automated Legal Research Using Westlaw 6. Comply with the Rules for Professional Responsibility 7. Manage Legal Manpower Chapter 1 Basics Page 1

8 Identify Staff Judge Advocate Operations Condition: You are a new Paralegal and need to become familiar with how Staff Judge Advocate operations are conducted in the U.S. Army JAG Corps, IAW FM 1-04 (formerly FM ). Performance Measures: 1. Functions and disciplines of a Staff Judge Advocate Office as it relates to SJA Operations. a. The Office of the Staff Judge Advocate (OSJA) provides legal services to the military organization which it is a part of. The OSJA performs the following tasks: (1) Provide the Commander and staff with legal support and advice in full spectrum operations. (2) Advise the Commander and staff on military justice, administrative separations, command policies, and other issues related to the good order and discipline of the command. (3) Oversee the administration of military justice for the General Court- Martial Convening Authority (GCMCA) and provide supervision, training, and oversight of the Brigade Trial Counsel in the administration of military justice matters while in garrison. (4) Provide the Commander and staff with legal support and advice in all legal disciplines. (5) Administer Claims and Legal Assistance programs consistent with all applicable laws, regulations, and rules of professional responsibility. (6) Administer a preventive law program designed to educate Commanders, staff, Soldiers, retirees, and their Families on legal issues that they may confront regularly. (7) Ensure that personnel directly assigned to the OSJA are trained and ready to deploy in support of the unit s mission. (8) Provide legal oversight, training, and guidance to Brigade legal sections under the SJA oversight authority. Chapter 1 Basics Page 2

9 b. The senior leadership of the OSJA at the Division, Corps, and ASCC levels consists of the SJA, the Deputy SJA, the Legal Administrator, Command and/or Chief Paralegal NCO, and Senior Civilian Advisor. Each senior leader has specific duties and responsibilities, but all five leaders (Foundation of Five) work together to ensure that the OSJA is led, trained, equipped, and supported in a manner to accomplish the mission. Each division within the OSJA has a Division Chief and a Noncommissioned Officer in Charge (NCOIC) who receives direction, guidance, and support from senior leadership. They in turn provide direction, guidance, and support that are more specific to those who work in their division subordinate Judge Advocates, civilian attorneys, Paralegal NCOs, Paralegal Soldiers, civilian Paralegals, and civilian legal support personnel. c. The OSJA normally is composed of the following: (1) A Staff Judge Advocate (SJA) (LTC, COL), (2) A Deputy Staff Judge Advocate (DSJA) (MAJ, LTC), (3) Division Chiefs (CPT, MAJ, LTC), (4) Judge Advocates (attorneys), (5) Legal Administrator(s) (Warrant Officer(s)), (6) Command/Chief Paralegal Noncommissioned Officer(s) (SGM, MSG), (7) Senior Paralegal Noncommissioned Officer(s) (SFC), (8) Paralegal Specialists, (9) Federal civilian legal support personnel (civilian attorneys and civilian Paralegals both US and host nation OCONUS) 2. Staff Judge Advocate: The SJA serves as the primary legal advisor to the Commander exercising GCMCA as prescribed by the UCMJ, the MCM, and applicable regulations. The SJA is a member of the Commander s personal staff and, as such, communicates directly with the Commander and provides legal advice for all matters affecting morale, good order, and discipline of the command. Additionally, the SJA is a member of the Commander s special staff. As such, the SJA serves under the supervision of the Chief of Staff, provides legal services to the staff, and coordinates with other staff members to provide legal services throughout the organization. Chapter 1 Basics Page 3

10 a. The SJA, as a field representative of The Judge Advocate General (TJAG), provides technical supervision over all JAGC personnel and legal services in the command, including planning and resourcing legal support, conducting and evaluating training, and assignment and professional development of JAGC personnel assigned to the command. The SJA may also use the legal technical channel to communicate with TJAG and other supervisory Judge Advocates. The SJA is responsible for all legal services required by the command in operational law and core legal disciplines. b. The SJA duties: (1) Provide military justice advice and perform military justice duties prescribed in the UCMJ. (2) Resolve legal problems regarding administrative boards, investigations, and other military tribunals. The SJA is the technical supervisor and trainer of all legal personnel in the command and its subordinate units. (3) Provide legal advice and assistance concerning contracts, health care, environmental matters, and compensation matters. (4) Provide legal counsel to the civilian personnel office, equal employment opportunity office, and the command. (5) Provide counsel to the family advocacy Case Review Committee (CRC). (6) Serve as the command ethics counselor. (7) Provide international and operational law assistance, to include advice and assistance to implement the DoD Law of War Program. (8) Assist in litigation in which the U.S. has an interest. (9) Operate the command s legal assistance, claims, procurement fraud, federal magistrate court, victim-witness assistance, and military justice training programs. (10) Assist in implementing training programs for reserve component legal personnel and units. (11) Provide legal advice concerning intelligence activities. Chapter 1 Basics Page 4

11 3. Deputy Staff Judge Advocate (DSJA): The Deputy Staff Judge Advocate is the second most senior Judge Advocate. While the SJA is the principle legal advisor to the command, the DSJA, acting for the SJA, is responsible for the organization, administration, and functioning of the OSJA; supervises legal services at a location during split-based operations (e.g., Corps DSJA supervises legal operations at the Corps Rear Command Post, or acts as provisional rear SJA when the SJA deploys with the Commanding General); and manages collective training for all legal personnel. 4. Division Chief: The Division Chief is the senior Judge Advocate in charge of any division within the OSJA, i.e. Legal Assistance, Military Justice, Administrative Law, Operational Law, and Claims Division. Division Chiefs are responsible for all legal support within a particular core legal discipline, such as criminal law, legal assistance, administrative law, operational law, contract and fiscal law, and the claims division. They supervise Judge Advocates, civilian attorneys, Paralegal Specialists, and civilian legal support staff in the delivery of legal support within the particular discipline; advise the SJA concerning all matters falling within the scope of the particular discipline; and train subordinates in the legal skills required by the discipline. 5. Judge Advocates: A military attorney who performs legal duties, in one or more particular legal disciplines, under the supervision of the SJA and Division Chief. Judge Advocates perform the following duties: a. Review actions for legal sufficiency. b. Investigate factual matters related to legal actions. c. Write legal opinions. d. Advise Commanders, staff officers, and personnel. e. Participate in staff working groups or teams. f. Prepare legal actions to advocate before courts-martial and administrative decision-making bodies. g. Provide legal assistance and other necessary client services to Soldiers and their Families. h. Judge Advocates supervise Paralegal Specialists and civilian legal support staff, who assist in the performance of these functions. 6. Civilian Attorneys: They are assigned to the SJA office and perform legal duties, in one or more legal disciplines, under the supervision of the SJA, Division Chief, and Senior Civilian Advisor, with the notable exception of advocating before courts-martial. They regularly provide extensive expertise in a particular legal discipline. They also have supervisory responsibilities, which may include division chief s responsibilities. Chapter 1 Basics Page 5

12 7. Legal Administrator: A Warrant Officer who has special training in law office management and operations. They were 27D Soldiers prior to becoming Legal Administrators. The Legal Administrator performs the following duties and has the following responsibilities: a. Serves as Chief of the Administrative Division. b. Coordinates personnel actions for officers, NCOs, enlisted Soldiers, and civilians. c. Serves as resource manager: develops fiscal requirements, executes program budget guidance, authenticates funding obligations, monitors expenditures, and manages the Internal Control program. d. Serves as Information Management Officer (IMO), supporting correspondence, telecommunications, records management, automation, micrographics, forms, printing and publications, and visual aids. e. Serves as Security Officer. f. Monitors and certifies training records for all assigned and attached personnel. g. Advises the SJA on methods of improving the administration of legal services. h. Manages manpower staffing and utilization programs. i. Implements Army Law Library Service policies, procedures, and systems. j. Reviews and authenticates military justice and administrative documents. 8. The Command/Chief Paralegal Noncommissioned Officer (CPLNCO): The Command/Chief Paralegal NCO is the senior enlisted Soldier in the Office of the Staff Judge Advocate, normally in the rank of: Sergeant Major (Division & Corps), Master Sergeant (Theater Sustainment Command s & certain installations), or Sergeant First Class (small installations). Their duties and responsibilities include: a. Serves as principle advisor to the SJA, Commanders, and their staff concerning all Paralegal Specialists and civilian Paralegals. b. Ensures common Soldier skill proficiency for all legal personnel, and MOS proficiency of all Paralegal Specialists. c. In coordination with the SJA, manages tasking by installation and higher headquarters. Chapter 1 Basics Page 6

13 d. Provides technical supervision of Paralegal Specialists performing duties in support of the SJA, DSJA, and Division Chiefs. e. Reviews military justice and administrative documents and files. f. Supervises technical training of all Paralegal Specialists located at subordinate Brigades and Battalions, including Paralegal Specialists deploying as part of a separate legal section or a Brigade Operational Law Team (BOLT). g. Ensures timely legal technical and automation training, including use and care of the Reimer Digital Library (RDL). h. Assists the Legal Administrator in monitoring and certifying training records for all assigned and attached personnel. i. Ensures logistical support for each team in the SJA section, to include procurement, issue, turn-in, accountability of equipment, and preparation for deployment, deployment, and redeployment. j. Coordinates the assignment of Paralegal Specialists. k. In conjunction with the DSJA, serves as liaison between staff sections and the OSJA to coordinate field training. l. Revises and updates the enlisted portion of the SJA s Field Standard Operating Procedures (FSOP). 9. The Paralegal Specialist/NCO: The Paralegal Specialist/NCO provides Paralegal and clerical support in all core legal disciplines under the supervision of the SJA, Division Chief, and Judge Advocates. a. Their duties and responsibilities include: (1) Investigating the facts relating to legal actions. (2) Conducting legal research. (3) Preparing legal documents. (4) Scheduling appointments. (5) Assisting clients under the supervision of an attorney. hearings. (6) Providing all logistical arrangements for courts-martial or administrative Chapter 1 Basics Page 7

14 (7) Reviews legal documents and actions for technical accuracy. (8) Processes claims. (9) Maintains records and statistics. (10) Prepares reports of legal actions. (11) Paralegal Specialists with the additional skill identifier (ASI) C5 are Court Reporters. In addition to the above duties, they record and transcribe verbatim proceedings of courts-martial administrative proceedings, Article 5 tribunals, and other proceedings as required by law or regulation. b. A Paralegal Specialist/NCO at the Battalion or Brigade provides Commanders basic Paralegal services under the technical supervision of the SJA and subordinate Judge Advocates. Their duties and responsibilities include: (1) They act as liaison between their units and the OSJA. (2) They prepare legal and administrative documents such as: (a) Records of Nonjudicial Punishment (NJP). (b) Adverse Administrative Separations. (c) Courts-Martial documents. (d) Powers of Attorney. (e) Will worksheets. (f) Confinement Orders. (g) Preliminary criminal investigation. (h) Article 15-6 investigation report forms. (i) Article 139 claims investigation report forms. (j) Statistical reports concerning legal actions. (3) They maintain official files for all unit legal actions. They apprise the Commander of the status of all command legal actions. Chapter 1 Basics Page 8

15 c. Paralegal Specialists must be proficient in managing a legal office in the field in support of operations. (1) They must know how a Commander and his staff operate in a tactical operations center (TOC) or other headquarters structure. (2) They must also perform traditional NCO functions-training and taking care of Soldiers. (3) In addition to legal, staff, and office skills, 27Ds must train to proficiency in Soldier common tasks. They must be able to survive on the battlefield, and be able to help other Soldiers survive. d. Finally, Paralegal Specialists maintain a deployment legal office package (forms, supplies, equipment, references, etc.) ready to deploy in support of the legal office and the command. When required, the Paralegal Specialist provides administrative support during Soldier Readiness Processing (SRPs), Pre-Deployment Processing (PDPs), and Emergency Deployment Readiness Exercises (EDREs), and to any other mobilization preparation or de-mobilization process. 10. The Civilian Legal Support Staff: They include Paralegals, Court Reporters, legal secretaries, and other supporting staff. The civilian legal support staff provides Paralegal and administrative support under the supervision of the SJA, Division Chiefs, Judge Advocates, and civilian attorneys. 11. Command Judge Advocates: A Command Judge Advocate (CJA) is the senior Judge Advocate in a legal office serving a Commander who is not a General Court-Martial Convening Authority and who is not otherwise authorized an SJA. The CJA is the Commander s personal legal advisor for all matters that affect the morale, good order, and discipline of the command and is a member of the Commander s special staff. The CJA s relationship to the Commander, subordinate Commanders, and staff is similar to that of an SJA. The Regimental Judge Advocate of the Ranger Regiment is an example of a CJA. Their duties and responsibilities include: a. Supervising the Paralegal Specialists. b. Providing legal support to the Commander and staff. c. Providing services in accordance with the policies of the Commander and the SJA of the host installation or the next higher command. Normally, the host installation OSJA will provide legal support in the disciplines of legal assistance, criminal law, and claims. Chapter 1 Basics Page 9

16 12. Law Center Officers-in-Charge (OIC): An OIC of a Law Center is a Judge Advocate responsible for supervising the provision of all legal services in a designated military community. The Law Center is a branch office of a senior headquarters SJA office. Law Centers are particularly common in Europe. 13. Brigade Legal Section Personnel (Brigade Operational Law Team of BOLT ) a. A Brigade legal section includes two Judge Advocates (possible three in the future); a Brigade Judge Advocate (BJA) and a Trial Counsel. The Brigade Judge Advocate is a Major who serves as the Brigade Commander s legal advisor and Officer-In- Charge of the Brigade legal section. A Trial Counsel is a Captain whose primary responsibility is to administer all military justice matters for the Brigade Combat Team (BCT). Additionally, the Trial Counsel will provide operational law advice and assist the Brigade Judge Advocate with legal issues across all operational law disciplines. The Brigade legal section also includes a Brigade Senior Paralegal NCO. BCTs are authorized a Sergeant First Class (SFC). Support Brigades are authorized a Staff Sergeant (SSG) to fill the same position. Finally Paralegal Soldiers, E1 through E5, are assigned to each subordinate Battalion in a BCT or Support Brigade. All JAGC Soldiers in a BCT work under the direction of the Brigade Judge Advocate. b. During deployments, a Brigade legal section frequently requires augmentation to meet its mission requirements. If augmented, the Brigade legal section may include an additional Judge Advocate, usually a Captain. This Captain s duties include operational law, administrative law, and legal assistance support to the Brigade. When augmented by a third Judge Advocate, the Brigade legal section can provide superior operational law coverage. The Brigade legal section can avoid ethical conflicts when providing client services and administrative law support. For example, during client services, rules for professional responsibility prevent the same Judge Advocate from advising the Commander and the Soldier in an adverse action. Administrative law support also avoids conflicts. For example, Judge Advocates are needed to serve as a neutral advisor to an AR 15-6 Investigating Officer (IO). When deployed, duties of the Brigade legal section may include foreign claims and detention operations. Ultimately, the Brigade Judge Advocate determines the duties and responsibilities of the third Judge Advocate in light of mission requirements. Chapter 1 Basics Page 10

17 c. The Brigade Judge Advocate is the primary legal advisor to the Brigade Commander. The Brigade Judge Advocate, the Trial Counsel, and the Brigade Senior Paralegal NCO are assigned to the Brigade Headquarters. The Brigade Headquarters is the primary place of duty for the Brigade Judge Advocate and the Senior Paralegal NCO as well as for a Judge Advocate augmenting the Brigade legal section. The Trial Counsel will work at the OSJA Criminal Law Office while in garrison to foster effective training and ensure consistency in the quality of legal services delivered. The Trial Counsel will deploy with the BCT Headquarters for training exercises and real world missions. The Trial Counsel will maintain a close working relationship with the BCT for both effective military justice support and deployments. Fostering this relationship may include participation in the BCT Physical Readiness Training (PRT) program, BCT Officer Professional Development (OPD), and other events. As a member of the Brigade Commander s personal and special staff, the Brigade Judge Advocate requires a direct line of communication with the Brigade Commander. d. Though the SJA serves as the Brigade Judge Advocate s rater, the Brigade Commander, or designated representative (ordinarily the Deputy Commander or Executive Officer), typically determines the Brigade Judge Advocate s routine duties in support of the Brigade. The Brigade Judge Advocate supervises the Trial Counsel during training exercises and real world missions. The OSJA, Chief of Military Justice, is garrison directly supervises the Trial Counsel. While not directly supervising all Brigade legal personnel, the SJA of the higher echelon does have responsibility for legal oversight, training, and technical guidance. 14. Duties and Responsibilities of Brigade Legal Section Personnel. a. Brigade Judge Advocate: The Brigade Judge Advocate advises the Commander and staff on operational law, military justice, administrative law, contract and fiscal law, and other areas of the law as required. This Judge Advocate ensures the delivery of legal services of the Brigade across the core legal disciplines. The Brigade Judge Advocate participates in operations planning and targeting processes. This participation includes reviewing operation plans and orders, training concepts, and other key actions for legal sufficiency. The Brigade Judge Advocate deploys as a member of the Brigade staff and serves as the Officer-In-Charge (OIC) of the Brigade Operational Law Team (BOLT). This officer plans, coordinates, and oversees client services, Soldier Readiness programs, and preventative law programs for the Brigade. The Brigade Judge Advocate supervises, trains, and mentors the Trial Counsel, Judge Advocate augmentee, and the Brigade Senior Paralegal NCO, and bears supervisory responsibility for the overall development of Brigade legal section personnel. Chapter 1 Basics Page 11

18 b. Brigade Trail Counsel: The Brigade Trial Counsel advises Commanders and staff on all areas of military justice in garrison and during deployments. The Trial Counsel prosecutes courts-martial arising within the BCT. The Trial Counsel coordinates with law enforcement agencies (PMO, MPI, CID) on pending cases and investigations within the BCT. The Trial Counsel represents the Government at Article 32(b) investigations and administrative boards. The Trial Counsel reviews adverse administrative actions, Article 15 punishments, and other military justice matters arising within the BCT. Additionally, the Trial Counsel assists the Brigade Judge Advocate on operational law issues including the Department of Defense Law of War Program, detention operations, status-of-forces and other international agreements, General Orders, and predeployment legal preparation. The Trial Counsel serves as a standing member of operations planning groups, targeting boards, and the fires section. The Trial Counsel participates in planning for operations and conducts legal reviews of operation plans and exercise plans. The Trial Counsel deploys as necessary for training exercises or combat and contingency operations. The Trial Counsel also serves as the acting Brigade Judge Advocate when the Brigade Judge Advocate is absent. c. Brigade Senior Paralegal NCO: The Brigade Senior paralegal NCO is the senior enlisted advisor and assistant to the Brigade Judge Advocate, and serves as the Noncommissioned Officer in Charge (NCOIC) of the Brigade Operational Law Team (BOLT). The Senior Paralegal NCO supervises, trains, and mentors subordinate paralegal Soldiers assigned to the Battalions. The Senior Paralegal NCO serves as a member of the Brigade s staff. This NCO should have successfully completed the Battle Staff NCO course and received the additional skill identifier of 2S. This NCO coordinates and conducts required training on legal issues, including law of war and rules of engagement. The Senior Paralegal NCO coordinates with the Brigade Judge Advocate, the OSJA Command and/or Chief paralegal NCO, and the Professional Development NCOs (PDNCOs) at Human Resources Command (HRC), to requisition vacant Paralegal Soldier s positions at the Battalion level. Additionally, the Brigade Senior Paralegal NCO regularly advises HRC of personnel actions that can potentially impact the Brigade s strength. d. Battalion Paralegal Soldiers: Paralegal Soldiers, E1 through E5, are assigned to the S-1 section of each subordinate Battalion of a BCT or Support Brigade. Their assignment to the Battalion S-1 section is designed to provide legal support to Commanders within the Battalion and the Soldiers. These Paralegal Soldiers act under the direction and supervision of the Brigade Judge Advocate and Brigade Senior Paralegal NCO, and their duties should be restricted to those of a legal nature. Chapter 1 Basics Page 12

19 NOTE Brigade Judge Advocates and Brigade Senior Paralegal NCOs retain flexibility to coordinate the consolidation of legal assets at the BCT and Support Brigade Headquarters. The ability to consolidate legal assets varies based on available space within the Headquarters, training requirements, and deployments. Brigade Judge Advocates and Senior Paralegal NCOs should strongly consider consolidation during periods of reduced strength to maximize the efforts of all legal personnel assigned to the BCT. Consolidation also allows the Brigade Judge Advocate and Senior Paralegal NCO to train, supervise, and develop paralegal Soldiers to the required level of expertise prior to a deployment. Consolidation of legal assets is coordinated with the Brigade Commander, Deputy Brigade Commander, Executive Officer (XO), and Command Sergeant Major (CSM). e. Judge Advocate Augmentation: If additional Judge Advocate augmentation is necessary and provided, that Judge Advocate may provide legal advice to Commanders and staff on operational law, administrative law, fiscal law, and other areas of the law as required. The Judge Advocate provides support to planning cells. The additional Judge Advocate provides legal assistance, Soldier readiness, and preventive law support to the Brigade. The Judge Advocate performs legal advocacy tasks on behalf of the Soldiers of the Brigade, especially where conflicts of interest exist. The Brigade Judge Advocate determines the scope of the Judge Advocate augmentee s duties and responsibilities based upon mission requirements. FM 1-04 (formerly FM ) Reference Performance Measure: Take the written test below. 1. What staff section(s) is the Staff Judge Advocate a part of? 2. Who is the second most senior Judge Advocate in an OSJA? 3. What is a Legal Administrator? 4. Who is the senior enlisted Soldier in the Office of the Staff Judge Advocate? 5. What does the Paralegal Specialist/NCO provide for the OSJA? 6. What does the acronym BOLT stand for? See Appendix A-1 for the answers to this exercise. Chapter 1 Basics Page 13

20 Prepare Military Correspondence Condition: You are a Battalion Paralegal. You have just been assigned the task of preparing a memorandum IAW AR You have access to AR Performance Measures: 1. General Rules. a. Font: Use font sizes that make the correspondence easy to read. (1) A font with a point size smaller than 12 or larger than 14 should be avoided. When possible, a 12-point size will be used. (2) Unusual type styles, such as script, should not be used. (3) Preferred type fonts are Times Roman, Times New Roman and Arial. b. Ink: Black or blue ink will be used to sign communications. Black ink will be used to stamp dates and signature blocks. c. Paper: Only one side of the paper will be used for original correspondence, however, correspondence should be reproduced on both sides of the paper. d. Date: Dates may be expressed in only two ways. 1 January 2010 or 1 Jan 10. The four-digit year will be used when the month is spelled out. e. Time: Military time will be expressed in a group of four digits, ranging from based on the 24-hour clock. The word hours will not be used in conjunction with military time. f. Margins: The standard margin is one inch from the left, right, top, and bottom of the page. g. Types of Memoranda. (1) Informal Internal to headquarters, command, or organization. An informal memorandum does not require a letterhead. (2) Formal Will be sent outside the headquarters, command, or organization. A formal memorandum requires a letterhead. Chapter 1 Basics Page 14

21 h. Letterhead: The letterhead is the top portion of a formal memorandum. It identifies the organization that prepared the memorandum. It consists of a minimum of three and not more than four lines, with each line centered on the page. Type the letterhead using single spacing and no abbreviations. i. Elements of the Letterhead. (1) The letterhead is placed at the top of the formal memorandum. The first line of the letterhead begins one inch from the top edge of the page. The first line consists of DEPARTMENT OF THE ARMY typed in all capital letters. (2) The second line identifies the organization preparing the memorandum. If the entire unit or organization will not fit on one line without going beyond the margins, continue on line three. The unit will be entered in title caps with commas separating elements. (3) Enter the location of the organization or unit on the last line of the letterhead in title caps. Leave two spaces between the state and the zip code. EXAMPLES: THREE LINE LETTERHEAD DEPARTMENT OF THE ARMY 3rd Brigade, 54 th Infantry Division (Mechanized) Fort Atterbury, Indiana FOUR LINE LETTERHEAD DEPARTMENT OF THE ARMY Company A, 3rd Battalion, 3rd Armor 3rd Brigade, 54 th Infantry Division (Mechanized) Fort Atterbury, Indiana Elements of a Heading - A heading of a memorandum will have the following elements: a. Office Symbol: The first element of the heading is the office symbol. It is entered in all capital letters. On a formal memorandum, it begins at the left margin on the second line below the seal. If there is no seal, it begins on the forth line below the last line of the letterhead. If there is a suspense date, the office symbol will begin on the second line below the suspense date. On an informal memorandum, the office symbol is entered at the left margin, one inch from the top of the page (there is no letterhead or seal on an informal memorandum). Chapter 1 Basics Page 15

22 b. Date: The date is entered on the same line as the office symbol and ends at the right margin. The order for entering the date is the day, month, and year. The date may be expressed with the month spelled out and all four digits of the year, or with the month abbreviated and only the last two digits of the year. c. Suspense Date: Use a suspense date if a reply is required by a certain date. Enter the suspense date two lines above the date of the memorandum, ending at the right margin. The suspense date is preceded by an upper case S followed by a colon with two spaces between the colon and the date using the same format as the date of the memorandum. Be consistent with abbreviations. d. Memorandum For Line: On the third line below the office symbol, at the left margin, enter MEMORANDUM FOR in all capital letters. Address correspondence as directly as possible to the office(s) expected to take action. Authorized abbreviations are allowed, but they must be consistent throughout. Do not use hyphens in the address line. Allow two spaces between the state and the zip code. If a second line is needed for the address, begin the second line flush with the left margin, except for multiple-address memorandums. Multiple-address memorandums beginning under the third character of the first line of the address. Addresses will be typed in title caps. (1) Single Address Memorandum: When using a single address, MEMORANDUM FOR and the address are on the same line. Begin the address one space after the word FOR. Type the address in title caps. If the single address takes more than one line, begin the second line flush with the left margin. EXAMPLE: DEPARTMENT OF THE ARMY Headquarters, 3 rd Battalion, 3 rd Armor 3 rd Brigade, 54 th Infantry Division (Mechanized) Fort Atterbury, Indiana AJJAB 8 May MEMORANDUM FOR Commander, Company A, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana SUBJECT: Reclassification Body Chapter 1 Basics Page 16

23 (2) Multiple-Addressed Memorandum: Begin typing the addresses on the second line below the MEMORANDUM FOR line. If the address has two lines, begin typing under the third letter of the first line of the address. Addresses are typed using title caps. EXAMPLE: DEPARTMENT OF THE ARMY Headquarters, 3 rd Battalion, 3 rd Armor 3 rd Brigade, 54 th Infantry Division (Mechanized) Fort Atterbury, Indiana AJJAB 8 May MEMORANDUM FOR 1 2 Commander, Headquarters and Headquarters Company, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana Commander, Company A, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana Commander, Company B, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana Commander, Company C, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana SUBJECT: Reclassification Body (3) See Distribution Memorandum: If more than five addresses are used, enter the words SEE DISTRIBUTION in all capital letters, one space after MEMORANDUM FOR. On the second line below the last line of the signature block or enclosure listing, whichever is lower, at the left margin, enter the word DISTRIBUTION followed by a colon. List each address on the next line beginning as the left margin. If an address takes more than one line, indent the second line two spaces and begin at the third space. Distribution listings may be continued on a second page. If necessary, the complete distribution listing may be typed on a separate page. Chapter 1 Basics Page 17

24 EXAMPLE: Soldier s Training Manual Paralegal Specialist (27D) DEPARTMENT OF THE ARMY Headquarters, 3 rd Battalion, 3 rd Armor 3 rd Brigade, 54 th Infantry Division (Mechanized) Fort Atterbury, Indiana AJJAB 8 May MEMORANDUM FOR SEE DISTRIBUTION 1 2 SUBJECT: Memorandum Addressed to More Than Five Addresses Body GARY E. PIKE LTC, AR Commanding 1 2 DISTRIBUTION: Commander Headquarters and Headquarters Company, 3 rd Battalion, 3 rd Armor Company A, 3 rd Battalion, 3 rd Armor Company B, 3 rd Battalion, 3 rd Armor Company C, 3 rd Battalion, 3 rd Armor Company A, 1 st Battalion, 2 nd Armor Company B, 1 st Battalion, 2 nd Armor Company C, 1 st Battalion, 2 nd Armor (4) Thru Address: Use a THRU memorandum to keep the THRU addressee informed or to provide the person with the opportunity to comment or approve. Depending on the situation, use one of the following types of THRU addresses: (a) Single THRU Address: On the third line below the office symbol, at the left margin, enter MEMORANDUM THRU in all capital letters. Begin the THRU address one space after the word THRU. If the address extends beyond one line, start the second line flush with the left margin. Chapter 1 Basics Page 18

25 EXAMPLE: Soldier s Training Manual Paralegal Specialist (27D) AJJAB-HHC 8 May MEMORANDUM THRU Commander, 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana FOR Commander, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana SUBJECT: Reclassification Body (b) Multiple- THRU Addresses: On the third line below the office symbol, at the left margin, enter MEMORANDUM THRU in all capital letters. On the second line below the MEMORANDUM THRU line, enter the first address at the left margin. Enter the next address at the left margin below the previous address. Should an address extend beyond one line, indent the second line two spaces and continue the address at the third space. (c) For: On the second line below the last thru address, at the left margin, enter FOR. Skip one space and enter the address. (d) Subject: On the second line below the last address, at the left margin, enter SUBJECT followed by a colon, skip two spaces and enter the subject of the memorandum. If the subject line extends beyond one line, begin the second line at the left margin. Chapter 1 Basics Page 19

26 EXAMPLE: Soldier s Training Manual Paralegal Specialist (27D) DEPARTMENT OF THE ARMY Headquarters and Headquarters Company 3 rd Battalion, 3 rd Armor Fort Atterbury, Indiana AJJAB-HHC 8 May MEMORANDUM THRU 1 2 Commander, 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana Commander, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana FOR Commander, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana SUBJECT: Reclassification Body 3. Body of a Memorandum. a. The body of a memorandum contains the message to be passed on to the addressees. It may contain one or more paragraphs giving or asking for information. b. Begin the first paragraph at the left margin on the third line below the last line of the subject line. c. Single-space the text of a memorandum. d. Double-space between paragraphs and subparagraphs. If a memorandum has more than one paragraph, number the paragraphs consecutively. e. Only number paragraphs if there is more than one. If there is only one paragraph, begin typing on the left margin on the third line below the subject line. Do not indent if you have only one paragraph. Chapter 1 Basics Page 20

27 f. A subdivided paragraph must have at least two subparagraphs. If there is a subparagraph a then there must also be a subparagraph b. Indent enough spaces to begin typing under the fifth space in the line(s) above and identify the first subdivision of a paragraph with lower case letters, followed by a period. Skip two spaces and begin the text. g. Identify the second subdivision of a paragraph with numbers in parentheses beginning under the ninth space/character in the line(s) above. Space twice and begin typing after the parentheses. h. Identify the third subdivision of a paragraph with lower case letters in parentheses at the same place as the second subdivision (do not indent any further). Space twice and begin typing after the parentheses. i. Do not subparagraph memorandums beyond the third subdivision. 4. Closing of a Memorandum: The closing has three major elements: The authority line, signature block and enclosure listing. The sub-elements are the Distribution listing and Copies Furnished (CF) (if needed). a. Authority Line: The authority line is used by people designated to sign for the Commander, head of an office, Commandant, Chief of Staff, etc. When used, it is typed in all capital letters beginning on the second line below the last line of the text at the left margin and is followed by a colon. You will be told whether an authority line is needed or not. b. Enclosures: Enclosures are supporting documents necessary to complete the action and keep the body of the memorandum as brief and concise as possible, e.g., maps, rosters, schedules, etc. Attach them to the basic memorandum and number them consecutively. In the lower right corner of each enclosure, enter the number in pencil. (1) Enter the enclosure listing beginning at the left margin on the fifth line below the authority line or the last line of the text if an authority line is not used. (2) If enclosures are identified in the body of the correspondence, account for them by indicating the total number (e.g., 4 Encls). For clarity, use the abbreviation as (as stated) when listing multiple enclosures. If there is a single enclosure, do not use a number or the abbreviation as. It is best if enclosures are identified within the body of the memorandum. (3) If enclosures are not identified within the body of the memorandum, account for them by indicating the total number (e.g., 4 Encls). List each by number, and describe them briefly. If there a single enclosure, do not put a number 1 in front of Encl and do not put a number on the enclosure. Chapter 1 Basics Page 21

28 (4) Abbreviate enclosure to Encl for a single enclosure and Encls for multiple enclosures. Always capitalize the first letter. (5) Use only authorized abbreviations when identifying enclosures. EXAMPLES: One enclosure identified in the body: Encl One enclosure not identified in the body: Encl DA Form Several enclosures identified in the body: 3 Encls as Several enclosures not identified in the body: 3 Encls 1. DA Form DA Form DA Form 2823 Three enclosures identified in the body and three enclosures not identified in the body: 6 Encls 1-3. as 4. DA Form DA Form DA Form 2823 c. Signature Block: The signature block consists of the name, rank, branch of service, and title of the person signing the correspondence. The signature block begins at the center of the page on the fifth line below the authority line or the fifth line below the last line of the text of the body if an authority line is not used. (1) The first line of the signature block is the name line and is typed in all capital letters by first name, middle initial, and last name. Chapter 1 Basics Page 22

29 (2) The second line of the signature block consists of the abbreviated or spelled-out rank and branch of service. A General Officer s rank is always spelled out, and their branch is USA or U.S. Army. (3) The third line is the title line. If more than one line is required, begin the next line under the third letter of the previous line. d. Distribution: Remember, if a memorandum is being sent to more than five addressees, type SEE DISTRIBUTION one space after the MEMORANDUM FOR at the beginning of the memorandum. Addresses will be typed in title caps. (1) On the second line below the last line of the signature block or enclosure listing, whichever is lower, type DISTRIBUTION in all capital letters, followed by a colon and begin entering the address(s) on the next line at the left margin. If more than one line is needed, begin the next line under the third letter of the previous line. (2) The distribution list may be continued on a continuation page if necessary. Enter continued only when the distribution list is being continued, not because the content is being continued. (3) If the address title, e.g. Commander, Commandant, Chief, etc., is the same on more than one address, it only needs to be entered at the beginning. Enter the address title in singular form, e.g., Commander, not Commanders. e. Copies Furnished: This option is used to keep activities other than the addressee(s) informed of the subject matter, but does not require these other activities to take any action. (1) Enter CF (copies furnished) followed by a colon on the second line below the last line of the signature block, enclosure listing, or distribution listing, whichever is lowest. (2) Enter each addressee on a single line under the CF. Should a second line be necessary, indent two spaces from the left margin. Copies furnished may be with or without the enclosures and this must be so indicated. 5. Continuation Page. a. If the content of the body or the distribution will not fit on the first page, a continuation page may be used. Do not divide paragraphs of three lines or less. At least two lines of a paragraph must appear on each page. b. Using plain bond paper, beginning one inch from the top edge of the paper, enter the office symbol at the left margin. Chapter 1 Basics Page 23

30 c. On the next line at the left margin, enter SUBJECT followed by a colon, skip two spaces, and enter the subject of the memorandum. d. On the third line below the last line of the subject line, begin typing the continuation of the memorandum starting at the left margin. The same procedures for formatting apply to the continuation page as were used on the first page. EXAMPLE: AJJAB SUBJECT: Continuing a Memorandum This is where you will continue typing the body of your memorandum GARY E. PIKE LTC, AR Commanding 2 6. Page Numbering: Center and type the page number approximately one inch from the bottom of the page and begin numbering on the second page with the number 2. There will be no page number on the first page of a memorandum. AR Reference Chapter 1 Basics Page 24

31 Performance Measure: Take the written test below. 1. On a memorandum, the letterhead consists of how many lines? 2. When do you use a suspense date? 3. Does the subject begin on the third line after the last address? 4. Where does the body of the memorandum begin? 5. Is the signature block centered on the page? 6. Is the authority line used on all memorandums? 7. Is it true that a continuation page may only be used to continue a distribution listing from the first page? 8. Does each page of a memorandum have to be numbered? See Appendix A-2 for the answers to this exercise. Chapter 1 Basics Page 25

32 Use JAGCNet Condition: You are a Paralegal Specialist and are required to maintain and use a JAGCNet account to perform your duties. You have a computer with internet access. NOTE You will need an Army Knowledge Online (AKO) account to access JAGCNet. Performance Measures: 1. Create a JAGCNet Account. a. Go to b. On the left hand side of the screen, in the Log-in box, you will see a link to Request Account. Click on that link. c. Answer all of the questions in order to create an account. NOTE You will need your Unit Identification Code (UIC), office symbol, contact information, and the name and contact information for your supervisor to create an account on JAGCNet. 2. Log-in to your JAGCNet account. a. Go to b. Click on either the AKO Login box or the CAC Login box. If you have your Common Access card (CAC) linked with your AKO account, you will able to Login to JAGCNet with your CAC. c. Read the DoD Notice and Consent Banner and click the OK box. d. Enter your CAC pin and you will be logged into JAGCNet. 3. Using JAGCNet. a. JAGCNet is an online portal for all JAG Corps personnel. This portal is a repository for all JAG related materials, broken down into functional areas. b. JAGCNet can also be used to locate JAG Corps personnel throughout all of the Army components (Active, Reserve and National Guard). An online directory, as well as a downloadable version of the Regiment s directory can be found on the site s front page. NOTE Ensure that you maintain your account information. This will assist other JAG Corps personnel when they are looking for you, in particular, or with finding legal assets in a certain location. This account update requirement is mandated by the JAG Corps leadership. Log-in regularly to ensure your duty position and location is current and to stay abreast on JAG Corps wide updates and policy changes. Chapter 1 Basics Page 26

33 Performance Measure: Take the written test below. Use JAGCNet to find the answers to these questions. 1. Where would you find the most recent version of the Operational Law Handbook? 2. How many ways can you log-in to JAGCNet and what are they? 3. Where would you find the bio and picture of the Regimental Command Sergeant Major? 4. How would you find all the enlisted, active component JAGC Soldiers, in the 3 rd Infantry Division? 5. Where would you find the history of the Hall of Heroes? See Appendix A-3 for the answers to this exercise. Chapter 1 Basics Page 27

34 Conduct Law Library Research Condition: You are a Paralegal Specialist in a Criminal Law Office. Your supervisor has asked you to research information in anticipation of charging a Soldier. You have access to a law library. Performance Measures: 1. Research Tips. a. Take careful notes. (1) When you first start to research it takes some guesswork. Try different approaches until you find something that works for you. (2) Document your research and take good notes. (3) Develop a note taking system that works for you. Keep track of the resources that you have consulted. Gather complete citation information as you go along. b. Be flexible: Adjust your research strategy as needed. If you feel as though you are not getting anywhere with a certain approach then try another. Do not waste your time on irrelevant material. Narrow down your issue and expand if need be. c. Be cautious: Verify everything. Do not rely on one source. d. Think critically: Always base the facts of your case or issue on reliable legal authority. e. Check out the law library. (1) Libraries are usually very well organized. Take a look around and note how the major groups of materials are organized. (2) Your law library in a JAG office is not the biggest law library in the world. The walk around approach works; use it. f. Get yourself a good legal dictionary. (1) Much of the terminology used in legal research can sound a bit foreign even to the most accomplished attorney. (2) Get a good law dictionary, such as Black s Law Dictionary, to enable you to have quick access to all the terms used by the legal profession. Chapter 1 Basics Page 28

35 NOTE - If you are in a situation in which you are unable to find what you need in a law library there are several helpful sources. You could look at the U.S. Army Judge Advocate General s Legal Center & School (TJAGLCS) Library in Charlottesville, VA. It holds extensive collections of primary source materials and publications in the field of military law. Selections from these collections are now being made accessible in full text PDF versions via the Library of Congress Federal Research Division (FRD) Website at As more materials are converted to digital formats, they will be added to this page. 2. The Law and its Foundations. a. Laws are usually rules governing individual and group behavior that are enforceable in court. b. Laws are made at three basic levels: federal, state, and local. Federal Laws, for example, form a body of law known as the United States Code (USC). You can fit the Armed Forces source of law under federal, Title 10, USC. c. Sources of Law. (1) U.S. and State Constitutions. (2) Statutes passed by congress, which constitute federal law. law. (3) Decisions made by federal courts (opinions) that constitute federal case (4) Statutes passed by state legislatures, which constitute state law. (5) Federal and State administrative agencies which write and issue regulations that constitute federal and state administrative law. tribal law. codes, etc. (6) Sovereign Indian tribes have their own courts and laws, which constitute (7) Local Governments pass ordinances that become police codes, health NOTE - The fifty states have banded together to create a union (the United States) and agreed to give the federal government certain defined powers spelled out in the U.S. Constitution. All powers (laws) not expressly granted to the federal government are reserved to the states. The states in turn have divided up some of their powers among counties, cities, and special districts. 3. Criminal Law versus Civil Law. a. One important classification when understanding our law is determining whether or not it is Criminal Law or Civil Law. Chapter 1 Basics Page 29

36 b. Criminal Law: Law that is in place to prevent harm to society. This type of law defines what is criminal and prescribes the punishment to be imposed for such conduct. Criminal laws define specific offenses and general principles of liability. These laws are commonly codified at the Federal and State level. c. Civil Law: Laws that are concerned with civil or private rights and remedies. 4. The Manual for Courts-Martial (MCM) and Army Regulation (AR) a. The Manual for Courts-Martial (MCM) could be considered the backbone of our military justice system and was prescribed by Executive Order pursuant to the President s Authority and applies to all services. b. The MCM consists of four parts. (1) The preamble that briefly states the sources of military jurisdiction, the exercise of that jurisdiction, and the structure of the manual. (2) The Rules for Courts-Martial (R.C.M.), which are divided into 13 different chapters that prescribe the procedures for courts-martial and are organized in the chronology of a trial. This means that you can go from pre-trial procedure all the way to the appellate review. These rules are binding but the discussion parts of the rules are not. However, the discussion piece gives you a good interpretation of the rules. These discussion points can change at anytime pursuant to the law. (3) The Military Rules of Evidence. These rules are more or less adoptions, with variations, of the Federal Rules of Evidence. (4) The forth part and probably one of the most important parts for a Paralegal is the discussion of punitive articles. This is where you find the offenses that you will be asked to research and draft throughout your career as a military Paralegal. Each offense is discussed in different parts, (a) the text of each punitive article, (b) the elements of the offense, (c) explanation of the offense, (d) lesser included offenses, (e) maximum punishments which may be imposed, and (f) sample specifications. c. Army Regulation 27-10, Military Justice. (1) AR prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, (2) You will find as a Paralegal in a Criminal Law Office, that this is an excellent supplement to the MCM as well as an invaluable tool in the administration of nonjudicial punishment. Chapter 1 Basics Page 30

37 5. The United States Code (USC). a. The United States Code is the starting point for most federal statutory research. It consists of 50 different numbered titles. b. One of the most important features of the United States Code Annotated (USCA) is the annotations. These are short paragraphs summarizing the points of law from cases in which the statute was construed. NOTE - Examples are: Title 35 contains statutes governing patent law, Title 10 covers the Armed Forces, and Title 26 covers tax law and has 16 hardcover volumes. c. There are two versions of the United States Code: 1) The United States Code Annotated (USCA) and 2) The United States Code. Most times the Law Libraries in a JAG office have the USCA. NOTE - The United States Code in the law and the United States Code Annotated (USCA) includes notes pursuant to that law. d. Getting started on researching the code and approaches to finding statutes. NOTE - The United States Code is federal law. These are statutes that are passed through our legislative branch that give us laws as directed by the United States. You will see that later in this chapter that there are State Codes which prescribe state law. You will find titles in the United States Code covering the armed forces, bankruptcy, the postal service, etc. It s almost like a chain of command where you have a General (ex. United States Code). The General is helped out by their Brigade Commanders (ex. State Code) who in turn enforce their rules through their Battalion Commanders (ex. City or County Laws). Then you have the Company Commanders and First Sergeants (the local police - the ones who enforce the law and make sure everyone is playing by the rules). As a Paralegal in a Criminal Law Office, you and your trial counsel will work closely with your Company Commanders in disciplining Soldiers who violate the rules. (1) If you know the citation to the statute, find the number given in the citation and turn to the indicated section. NOTE - Reference to primary source law, including federal statutes, is termed a citation. It tells you where the law is located. Example: 42 USC ss 2000 a-h Title number section number subsection letters You simply would find the book with the volumes marked 42 on the spine of the book and get the one that includes ss 2000 a-h. (2) If you know the common or popular name of the statute but don t have the citation, consult the Shepard s or USCA popular names index. NOTE - There is a popular names index that accompanies the USCA. It should directly follow the set of USCA books on the shelf. Chapter 1 Basics Page 31

38 (3) What if you don t know what the statute is called? Use the subject you are searching for and consult the subject index and attempt to find the specific title. The subject index is found in the last volume of the code. (4) If you don t find what you are looking for in the specific title index, or you don t know what title to start with, consult the general subject index at the end of the entire series. Example - Suppose you are interested in federal statutory restrictions on the use of federal education funds by state schools. If you happen to know that such restrictions are found in Title 20, you can use the index for that title. If you did not know in advance that Title 20 contains the education statutes, you would use the general index at the end of the entire code and find that education is in Title 20. NOTE/WARNING - Make sure you get the most current version of the statute. Although the code might be published in hardcover (annotated version), each book has a paper supplement called a pocket part. The pocket part updates the hardcover version annually. Always search the pocket part when you are trying to find a statute. 6. The Military Justice Reporter. a. The Military Justice Reporter (MJR) provides identifying data and descriptions of military appellate cases. (1) There are over 66 volumes of the Military Justice Reporter and it is always getting updated because new decisions and opinions are published. The MJR is arranged in numerical order. Each volume has a table of contents. Also, there are Military Justice Reporter Digests and Supplements that are important when researching the Reporter. (2) As more decisions and opinions are published they will be placed in what s called a supplement. These are thin booklets that update the hardcover MJR. After a number of supplements have been distributed they are transferred into a bound volume. (3) The MJR is also supplemented by the Military Justice Digest. This is an invaluable resource when researching the MJR. It contains brief summaries of what you will find in the hard copy MJR and provides you with cases to reference when researching a specific issue. b. History before research. (1) The MJR publishes opinions by the court that may affect an argument that Trial Counsel or Defense Counsel make in trial. The ultimate decision, innocence or guilt, can be affected by a case that has recently been decided. NOTE - You might have a case involving a search and seizure situation. For example, does evidence in plain view constitute a search? A perfect place to look would be the MJR to see if there are any appellate court decisions on this issue. Chapter 1 Basics Page 32

39 NOTE - Remember! Descriptive-Word Index. This is found in the back of the MJ Digest. Look up Searches and Seizures in the back of the MJ Digest and find plain view. Research what cases are cited. (2) After a court-martial case is over, action is taken. These findings and sentence are then promulgated. At this point the case goes through an appellate process. Some of the acronyms you will need to know when researching the MJR are as follows: (a) DAD - Defense Appellate Division (b) GAD Government Appellate Division (c) ACCA Army Court of Criminal Appeals Army Court that consists of four panels with three Military Judges each. (d) CAAF formerly known as CMA (Court of Military Appeals) Court of Appeals for the Armed Forces. You might find in your research that the CMA has opined on certain issues. The CMA is now the CAAF. Civilian Court that consists of a panel of five civilian judges that review selected cases from all different services appellate courts. (e) Supreme Court The highest court Consists of nine Supreme Court Justices. (f) In addition to the above mentioned courts you should also be familiar with the other services appellate courts: Air Force Court of Criminal Appeals (AFCCA), Navy-Marine Court of Criminal Appeals (N-MCCA), and the Coast Guard Court of Criminal Appeals (CGCCA). (3) The Military Justice Reporter articulates case law. Case law is what counsel use to articulate the law. c. Researching an issue using the MJR. (1) Research information on self-defense in the MJR. First, narrow down your search to when deadly force can be used when acting in self-defense. (2) Method of search. (a) Military Justice Digest. (b) Go to the back to the descriptive-word index. (c) Look up the term self defense. Chapter 1 Basics Page 33

40 (d) Go to those key notes (836). (e) Read the case law that is cited in the key notes 836 section. Remember the acronyms we discussed earlier in this chapter. Look for cases, dealing with deadly force and self-defense. Your cases don t have to be decided on by just Army Courts. You can also use other services appellate court decisions. NOTE - As you can see, we are now starting to establish a research pattern. 7. State Code. a. The State Code defines the laws of the state. the state. (1) The 1 st title of the code will establish the sovereignty and jurisdiction of (2) Once establishing jurisdiction, you will see that the Code covers most all areas of the law you can think about. It encompasses things such as divorce and criminal procedures. b. State Codes are very similar to Federal Codes and organized in the same manner. c. You will see that there are titles just like the United States Code and each title addresses certain areas of the law. d. The State Code has an index as well, much like the Military Justice Reporter has a digest. This is a great resource when you need help in narrowing down your research. NOTE - If you wanted to know about divorce as it relates to a state law, you would look at the index under the letter D and find the word divorce. There you will find many different sub-issues under Divorce. Primarily you will see that divorce is found under Domestic Relations under Title 20 of the State Code. You might want to know what the residency requirement is for that state before filing for divorce. You would simply look under divorce and residency requirement. There you will find how long the residency requirement is. e. Criminal Procedures can also be researched in the State Code. Although Criminal Law and Civil Law are different, the research methodology is the same. AR MCM MJR MJ Digest U.S.C.A. References Chapter 1 Basics Page 34

41 Performance Measure: Situation: You are a paralegal specialist in a criminal law office and your supervisor has asked you to find information in anticipation of charging a Soldier. Read the following information and be prepared to brief your boss in an hour. 1. The command wants to punish a Soldier for being absent from the unit with the intent to avoid maneuvers. What is the offense that the Soldier would be charged with and what are the elements of that offense? 2. The trial counsel and command have talked and are not sure whether or not to courtmartial the Soldier or just give him a Field Grade Article 15. Everyone seems to know the maximum punishment for the Article 15 but not for a General Court-Martial. What is the maximum punishment? 3. You have been asked to research the Military Justice Reporter to find out more about drug Testing. What book would you go to first in order to narrow down your search? 4. When researching your Military Justice Digest, what key note would cover general issues on drug testing? 5. What title under the United States Code would you look at when researching tax law for your tax center? 6. After you are done researching in the hardcover of the United States Code Annotated, what should you look at to make sure you are researching the current information? 7. Your trial counsel has asked you to draft charges on a Soldier for being Absent Without Leave (AWOL). The Soldier has been AWOL for three days. Your trial counsel has asked you to also include the lesser included offenses of failure to report (FTR) to morning and evening formations for each of the three days. Potentially, you will have one charge on violation of Article 86 with one specification of AWOL and nine specifications of FTR. You know that FTR is a lesser included offense of AWOL and you have the issue of multiplicity. What Rules for Courts-Martial (R.C.M.) might cause your trial counsel to re-think this issue? 8. How many Associate Justices are there on the Supreme Court? See Appendix A-4 for the answers to this exercise. Chapter 1 Basics Page 35

42 Conduct Automated Legal Research Using Westlaw Condition: You are a Paralegal working in a Criminal Law Office in the Office of the Staff Judge Advocate. Your Trial Counsel just asked you to look up some case law and they need the research done quickly. You have access to a computer with internet connection. Performance Measures: 1. Introduction to Westlaw. a. Westlaw is a form of computer assisted legal research. Westlaw is a tool to assist you in accessing both legal and non-legal information. If any questions, problems or comments concerning Westlaw arise, individuals are encouraged to call Westlaw s Customer Service number at In addition, if a user experiences difficulty formulating a search in one of Westlaw s databases, or is not finding adequate search results or has a question, problem or comment specifically concerning searching, please contact our Reference Attorneys at Both phone numbers are available 24 hours a day, seven days a week. They are also free to any Westlaw subscriber. There is always someone available to assist you with your Westlaw on-line research. b. The JAG Corps has an agreement with Westlaw because it provides the best mix of exclusive content (e.g. KeyCite), editorial authority (e.g. Key Number and Digest System) and other legal information solutions to help carry out our diverse duties. Westlaw is a research system that integrates tools for finding, analyzing and validating information that offers greater efficiency and productivity. c. As a Paralegal it is imperative that you know how to properly use the Westlaw/Army JAG web page to perform efficient and effective legal research. In addition to being a great tool for finding case law, Westlaw can help locate expert witnesses, provide background information on companies and issues that affect the DoD (e.g. anthrax, recruitment, military pay, etc.). 2. Navigate to the Westlaw homepage. a. The first step in learning how to use Westlaw.com Research System is accessing the Westlaw/Army JAG web page. Open the internet browser and log into JAGCNet. You will log-in using either your AKO log-in or your CAC log-in. You will then find the link to Westlaw on the right-hand side of the JAGCNet homepage screen, under Technology. You can also go to the Military Justice tab and access Westlaw through that page. Chapter 1 Basics Page 36

43 b. Once you have clicked on the Westlaw link, you will be taken to another screen within JAGCNet for Westlaw. Click on the Access Westlaw tab underneath the Single Sign On section on the right-hand side of the screen. You will now be presented with the Westlaw Single Sign-On screen. On this screen, you will see your information as Westlaw has it. Once you have assured that it is in fact your information, scroll down the screen to the Accept button and click it. Once you have done so, you will be presented with the Westlaw homepage screen. Once you are on the Westlaw homepage, click on the Military tab. If you are unable to access Westlaw through JAGCNet, contact the JAGCNet Helpdesk. 3. Retrieving documents using Westlaw. a. Find is a Westlaw service that allows you to find a document when you know its citation. Types of documents that can be retrieved with Find include case law, statutes, regulations, administrative materials, legislative materials, law review articles and nonlegal information such as newspaper articles. (1) Find by Citation. Click the Find by Citation box at the top of the Shortcuts panel. It is not necessary to access a database first. To retrieve 68 M.J. 260, Access Find, Type 68 M.J. 260, Click Go or click the Enter button. (US v. Lubasky) (2) Find by Party Name. A title search can be used to retrieve a case when you know the name of one or both parties or to determine whether a company or person has been involved in previous lawsuits. Access Find & Print, located at the top of the screen Click on the link on the left-hand side of the screen for Find a Case by Party Name. Insert Lubasky and U.S. into the two boxes indicated for party names and select the All U.S. Federal and State Cases as the jurisdiction. Click GO or click the Enter button. A title search can also be used for background searches to determine all previous cases involving a particular party. (3) Find Using a Template. In those instances where a user is not sure of the format of a citation, below the find by citation box, on some search screens, there is a link labeled find using a template. Using that link allows the user to input the numbers contained in the citation of commonly used databases without having to fill in the remaining parts of the citation. Chapter 1 Basics Page 37

44 b. Searching by Terms & Connectors or Natural Language. Westlaw provides you with two different search methods - - Natural Language and Terms and Connectors. Natural Language is a search method that allows you to enter your search request in plain English. Your search retrieves up to 100 documents that most closely match your search request and ordered in statistical relevance from most relevant to least relevant to your search. (You can change your preferences to alter the number of documents you want to retrieve in your results.) Terms and Connectors requires you to set the parameters of the relationship of the terms in your search by using grammatical and numerical connectors. Your terms and connectors search can retrieve up to 10,000 documents in reverse chronological order. (1) Search using Terms & Connectors. Trial counsel asks you to research whether unauthorized use of credit cards is a larceny against the cards' issuers or against the cards owner under the UCMJ. The steps to follow in crafting a terms & connectors search are: issue. (a) Form your query by choosing search terms significant to your credit card unauthorized use larceny issuer owner U.C.M.J. (b) Choose alternatives such as synonyms you can get a list of these words by clicking on the thesaurus link next to your text search box. This will generate a large list of synonyms, including burglary, pilfering, purloin, etc. Select, at a minimum, purloin to enter into your search box (c) Westlaw automatically searches the plural form of your terms, but to retrieve variations of terms, use the root expander (!). This is especially useful if one of your terms has various endings that may return results relevant to your search (i.e., seize, seizure, seized = seiz!) Place an exclamation point at the end of purloin to get all variations of the word (purloins, purloined) (d) Decide which connectors to place between your terms. & same document /p same paragraph /s same sentence /n within "n" terms of each other (the letter n refers to a number) space or " " phrase NOTE - In the Military Justice cases database (MJ), run a terms & connectors search for credit card /s unauthorized use /p larceny purloin! /p issuer owner & U.C.M.J. 1 result U.S. v. Lubasky. Chapter 1 Basics Page 38

45 (2) Search using Natural Language. To search using Natural Language, click the radio button next to Natural Language on the Search form and then simply type in a key word(s), phrase, or an entire legal question. The cases that appear are based on relevance; therefore the most relevant case (the one that has your key word(s) the most) will appear first. Is the unauthorized use of a credit card a larceny against the issuer of the card, or a larceny against the owner of the card under the UCMJ? 100 results the first result is U.S. v. Lubasky. NOTE - Do not use any of the connectors, the exclamation point, or asterisks when searching in Natural Language. 4. KeyCite. a. Once you have retrieved your case, you need to confirm that the case has not been overruled or reversed by a subsequent decision. KeyCite is a Westlaw service that provides you with the history of your case and is automatically updated when a case is added to Westlaw. Status flags warn you that history is available for your case and should be investigated. b. Symbols. (1) Red Flag - In cases and administrative decisions, a red flag warns that the case or administrative decision is no longer good law for at least one of the points of law it contains. In statutes and regulations, a red flag warns that the statute or regulation has been amended by a recent session law or rule, repealed, superseded, or held unconstitutional or preempted in whole or in part. (2) Yellow Flag - In cases and administrative decisions, a yellow flag warns that the case or administrative decision has some negative treatment, but has not been reversed or overruled. In statutes and regulations, a yellow flag warns that a statute has been renumbered or transferred by a recent session law; that an uncodified session law or proposed legislation affecting the statute is available (statutes merely referenced, i.e., mentioned, are marked with a green C); that the regulation has been reinstated, corrected or confirmed; or that the statute or regulation was limited on constitutional or preemption grounds or its validity was otherwise called into doubt, or that a prior version of the statute or regulation received negative treatment from a court. (3) Blue H - In cases and administrative decisions, a blue H indicates that there is direct history but it is not known to be negative. (4) Green C - A green C indicates that the case/administrative decision has citing references but no direct history or negative citing references. It also indicates that a statute/regulation has citing references, but no updating documents. NOTE - The Trial Counsel will always make the decision on whether to rely on the case. Chapter 1 Basics Page 39

46 Example Determine whether McCarty v. McCarty, 453 U.S. 210 is still good law. If not, why not? Do any other cases cite to McCarty? McCarty is no longer good law for at least one point of law that s indicated by the red flag and the message in the KeyCite box on the left-hand side of the page. If you click on the Full History link in the KeyCite box, you will see a list of negative citing references at the top, including a list of several cases where McCarty has been superseded by statute (which is what makes the red flag show up). If you click on citing references in the KeyCite box, you will get a list of everything that cites to McCarty, including cases. For some cases, there are hundreds, if not thousands of citing references. How do you limit the list of references that cite to McCarty to the documents you care about (like cases only?) Click the limit KeyCite display button at the bottom of the page, click the Clear All button, and then select the kind of cases you want ( highest court, and then click the Apply button on the lefthand side of the page. Result narrowed down list of citing references for McCarty that are only from the highest courts. You can also limit the references by issue. 5. Using KeyCite to find the Status of Legal Issues. a. How do you know whether the case you found is good law for the issue you are researching? At the top of your case, you will find a brief description of the case, parties and outcome. Below that section, you will find a paragraph about each legal issue from a case. Those are Headnotes. Headnotes are issues that have been categorized using the KeyNumber system. b. If the case you found has a red or yellow flag, you will check the issue to see if that issue is good law. Find U.S. v. Antonelli, 35 MJ 122. It has a yellow flag. Read Headnote 5. If you want to find out whether Headnote 5 is the source of the negative treatment use the KeyCite Citing References for this Headnote next to the number 5. c. Select the box next to cases to find out whether cases have treated the Antonelli case negatively for this issue. Click Go. The Antonelli case has been distinguished for the issue you are researching. 6. Conducting Statutory Research. You may find yourself needing to research federal or state laws or regulations to meet the needs of your clients. There are a number of tools on Westlaw to make finding the relevant state or federal statute more easily. a. Researching federal statutes. (1) If you know the name of an act but don t know where it was codified in the United States Code, use the Popular Name table. Click on the Popular Name Table link in the upper-right hand corner when in the USCA database, and type in the name of the act (for this example, the Patriot Act). The result is a list that has the sections of the public law (the act) on the left hand side and the portions of the US Code where those sections have been inserted on the right hand side. NOTE One quick way to go directly to the U.S.C.A. database is to enter, from the main Westlaw tab, U.S.C.A. in the Search for a database window. Chapter 1 Basics Page 40

47 (2) You can also find a statute by citation. Click on the Find by Citation link in the upper-right hand corner when in the USCA database. (NOTE TO INSTRUCTOR - If you are not in the USCA database, statutes can be found by populating the Find this document by citation in the upper left hand of the Westlaw tab or welcome screen.) In the top template insert 10 USCA 8583 and click GO. b. Researching state statutes. (1) If you know you are looking for a statute in a state but don t know where the subject is addressed in that state s code, such as step-parent adoption, use the Statutes Index (you would do the same thing if you didn t know how to find federal statutes that dealt with a subject in the USCA). (2) Type the name of the state database (for this example, the South Carolina statutes) in the left-hand corner Find this Database shortcut. When in the database South Carolina Compiled Statutes Annotated, click on the Statutes Index link, and then type your subject word (adoption). The result is a list of all the sub-topics and relevant statutes that are categorized under that subject scroll down to the parents subcategory, and click on the plus next to it. The first result, divorced parents, adoption by new spouse of parent is exactly on point. c. Researching regulations. (1) If you know you are looking for a federal regulation but don t know where it is located in the Code of Federal Regulations, use the RegulationsPlus Index. When in the database Code of Federal Regulations, click on the RegulationsPlus Index link, and then type your subject word (courts-martial). The result is a list of all regulations that are categorized under that subject. If you are unsure where the database is, search for it from the Westlaw main page. (2) A Trial Counsel asks you to research the rights and obligations under the UCMJ of a Soldier who is facing a paternity claim. The Code of Military Justice is found in Title 32 of the Code of Federal Regulations (CFR). In the CFR database, search what are the rights and obligations of army solder facing paternity claim. The first result in the list, 32 CFR 584.3, contains the rights, policy and procedure to process such claims. (3) A Trial counsel asked you to find out how to compel the testimony of a civilian witness who refuses to testify at court martial. In the Manual for Courts Martial database (FMIL-MCM), search civilian witness refuses to testify at court martial. The first result in the list, 34 FR 10503, contains the applicable law and related materials (i.e., template for complaint to file in federal court). (4) You ve been asked to find military law review articles on computer espionage or sabotage. In the Military Law Review database (MILLR), search for defense against electronic espionage and sabotage. The first result in the list, 169 MILLR 70, addresses the legality of utilizing and electronic attack in situations of armed conflict. Chapter 1 Basics Page 41

48 (5) Counsel asked you to find articles related to trends of military assistance in response to natural disasters. In the Army Lawyer database (ARMLAW), search increased military assistance for domestic natural disasters. (6) A Trial Counsel asks you to find out the standard for qualifying an expert witness at court-martial. In the Military Criminal Law Evidence database (MCLE), search qualification of witness as expert at court martial. The first result from the Department of the Army Pamphlet contains guidelines on Expert Witnesses at Court Martial. 7. Exploring Military Sources on Westlaw. a. Westlaw provides legal, financial, public record, and news information in tens of thousands of databases. b. People and Companies in the Headlines (accessible from the Company Information tab add the tab to your Westlaw interface by clicking Add a Tab from the Westlaw main page then selecting Company Information.) These shortcut links enable you to enter a person or a company and it will search the headlines and lead paragraphs for all news going back one year. We would like to know where KBR has been in the news lately. Shortcuts Box: Companies in the Headlines. Recommended Search: Kellogg Brown & Root (KBR.) c. Finding public records information: You can search public records to locate people s contact information or last known addresses (if you need to, say, find a witness). Type PEOPLE-ALL into the Search these Databases box. When selecting a public records database in which to search, you must select permissible uses for your research to comply with privacy laws. Make those selections, and then type in the person s name (John /2 Sample-Document) and click Search. Select a result shows the most recent address on record. NOTE - Searching public records information is limited strictly for legitimate research purposes. 8. West Topic and Key Number System. The West Topic and Key Number System is an effective research tool to search within a body or jurisdiction of cases for a specific issue or topic. Example: Federal Law - You are researching the issue of jurisdiction over Reservists/National Guard personnel. Access the Key Numbers link on the top of the screen. Type your search term Reservist into the Search for Key Numbers box, and select your jurisdiction, federal. The result is a list of all the topic and key numbers that are categorized under this subject. Click on the result for Personal Jurisdiction > Reservists; National Guard personnel: that gives you a list of all the Headnotes that have been categorized under this category. This helps you find all of the cases that deal with this issue without having to create a terms & connectors or a natural language search. Chapter 1 Basics Page 42

49 9. How to print, fax, , and download using Westlaw. Westlaw.com offers several options to save or send the documents you find. These include: printing, downloading, faxing, and ing. To print, , download, fax, or save your documents on Westlaw, click a delivery icon in the upper right corner of a retrieved document or result list. Click the Quick Print icon to print the document or result list you are viewing on an attached printer. To use another delivery method, follow these steps: a. Click the Print, , or Download icon, or click Other and choose Fax or Save on Westlaw from the menu that is displayed. b. A dialog box is displayed. (1) Specify the documents and pages you want to deliver. If you are delivering a statute, you can select Statutory Text Only to deliver the statute without annotations. (2) Click Settings at the top of the dialog box to specify whether you want to include features such as KeyCite flags and highlighted search terms. Click Done when you are finished making your selections. c. Click Print, Send, or Save depending on the delivery destination you selected. Westlaw User Guide Reference Performance Measures: Scenario 1: Using the Westlaw Internet Site, research the United States Code. 1. What title should you research to learn more about the Service members Civil Relief Act (SCRA)? 2. Where in the United States Code would you find the Uniform Code of Military Justice (UCMJ)? 3. How would you find all federal statutes that deal with assault weapons? Chapter 1 Basics Page 43

50 Scenario 2: Using Westlaw, conduct research of Military Justice Case Law by finding the case(s) cited and write down the full name of the accused M.J M.J M.J M.J. 153 Scenario 3: Using the information provided and the Westlaw Internet Site find the witnesses current addresses. Witness name Mickey Mouse, California Resident no last known address. NOTE There are multiple answers that are acceptable. The goal of this scenario is to get used to searching public records. See Appendix A-5 for the answers to this exercise. Chapter 1 Basics Page 44

51 Comply with the Rules for Professional Responsibility Condition: You are a Paralegal in an SJA office given the responsibility to perform your duties IAW AR You must identify the actions required in order to properly conduct your duties IAW AR You have access to AR 27-26, AR 27-1, AR 27-3, and AR Performance Measures: 1. Key Governing Rules for Professional Responsibility. a. The Rules of Professional Responsibility for Judge Advocates and Paralegals. (1) The Rules for Professional Conduct For Lawyers (hereinafter referred to as Army Rules). The Army Rules apply to: (a) All Army Judge Advocates; (AR 27-26, page i, Summary) (b) Civilian attorneys employed by Department of the Army; and para 5-8) (c) Civilian attorneys appearing before courts-martial. (AR 27-10, (d) Paralegals. Supervisors must make reasonable efforts to ensure subordinates comply with the Rules (Army Rule 5.1), including non-lawyers under their supervision (Army Rule 5.3). A supervisor assumes imputed responsibility for acts of subordinates if the lawyer orders or ratifies a subordinate s violation, or the lawyer knows of and fails to take remedial action to avoid or mitigate the consequences of a violation. Thus, when a lawyer or attorney is referred to hereafter that includes you, the paralegal. NOTE - Imputed, explained. Black s Law Dictionary Attributed vicariously to a person due to his or her supervisory control over the subordinate. Even if the supervisor had no knowledge of the subordinate s actions, the law may impute its knowledge to the supervisor anyway. (2) Attorneys must adhere to both the letter and the spirit of the rule. The Army Rules state a standard to be followed. They provide a basis for taking action should a lawyer fail to comply with or meet the standard. (3) Comments are non-binding guidance. b. State Rules. Every lawyer subject to these Rules is also subject to rules promulgated by his or her licensing authority or authorities. (Comment, Army Rules 8.5f) c. ABA Standards for Criminal Justice also apply to Military Judges, counsel, and clerical support personnel of Army courts-martial (AR 27-10, para 5-b). Chapter 1 Basics Page 45

52 2. Key Rules of the Lawyer-Client Relationship. a. Army as the Client. (1) A Judge Advocate or other Army lawyer represents the Army acting through its authorized officials, e.g. Commanders. NOTE - There are three other examples of when a Judge Advocate will represent the individual Soldier as a client (Legal Assistance, Trial Defense, & Office of Soldier s Counsel). (2) The attorney-client relationship exists between the lawyer and the Army. (3) Regulations may authorize representation of individual clients. For example, a legal assistance attorney or defense counsel is authorized to represent an individual client, not the Army. See AR 27-1, para 2-5 and AR 27-3, para 2-3a. - If not authorized to form an attorney-client relationship with the client, an Army lawyer must advise the individual that no such relationship exists between them. (Army Rule 1.13(b)). NOTE - Attorneys should refer Commanders or other officers who would otherwise seek assistance elsewhere to their respective sections. Example: Trial Counsel is asked by his Brigade Commander about a tax issue. That TC should refer his Commander to Legal Assistance. - While an attorney may be permitted by law or regulation to form an attorney-client relationship, situations may arise in which doing so would lead to a conflict. Army attorneys should exercise considerable discretion in handling the personal legal problems of Army officials, and receiving client confidences, when the Army attorney is not assigned to a client service organization such as Legal Assistance or Trial Defense Service. b. Illegal Acts (AR 27-26, Army Rule 1.13c): If an official of the Army (e.g. a Commander) is acting illegally or intends to act illegally, and the action might be imputed to the Army, the lawyer shall (1) Proceed as is reasonably necessary in the best interest of the Army. (2) Consider utilizing the following measures: (a) Ask the official to reconsider. (b) Advise the official to get a separate legal opinion. (c) Advise the official that his or her personal legal interests are at risk and he or she should consult counsel. Chapter 1 Basics Page 46

53 (d) Advise the official that counsel is ethically bound to serve Army interests and must discuss the matter with supervisory lawyers. (e) Refer the matter to or seek guidance from a higher authority in the technical chain of supervision. (f) If unsuccessful, the lawyer may terminate representation with respect to the matter in question. (Army Rule 1.13d) c. Required Diligence. (Army Rule 1.3) (1) Lawyers must act with reasonable diligence and promptness. Lawyers must consult with clients as often as necessary. (2) While the language of the rule talks in terms of reasonableness. The lawyer must be ZEALOUS on behalf of the client. Additionally, the lawyer must pursue the case despite personal inconvenience to properly handle the client s case. d. Lawyer as an Advisor. (Army Rule 2.1) (1) A lawyer may refer to moral, economic, social, and political factors when rendering advice to clients. (a) Purely technical legal advice may sometimes be inadequate. (b) A lawyer is NOT a moral advisor as such. Discuss how other factors influence the way the law will be applied. (c) For example, a client with a consumer problem may have a strictly legal claim against a creditor. However, the real problem is excessive debt. The lawyer is allowed to counsel the client on these economic matters and suggest budget counseling. Another example, a client can legally evict the sick, elderly, indigent tenant for being late on their rent. The lawyer can advise the client that, while legal, it is unkind. (2) Lawyers must exercise independent judgment when advising a client (Army Rule 5.4). (a) Army Rules explicitly allow for individual representation when detailed or assigned. (b) Unfettered loyalty and professional independence to the same extent as lawyers in private practice when assigned individual client. (Army Rule 5.4e) Chapter 1 Basics Page 47

54 (c) While the Army is ordinarily the client, there are two situations where the Army authorizes individual client representation. These are Trial Defense and Legal Assistance. When working in those capacities, the lawyer s loyalty flows to that individual client; therefore, you must resist pressure from the command or other sources. e. Required Communications. (1) Lawyers have a duty to keep clients reasonably informed about the status of a particular matter and to comply with client requests for information. (2) Lawyers also must explain matters to clients to permit them to make informed decisions. f. Confidentiality of Information. A lawyer shall not reveal any information relating to the representation of a client. (Army Rule 1.6(a)) (1) No distinction between confidences and secrets. relationship. (OSJA). (2) Applies to information obtained prior to formation of attorney-client (3) Applies to all sections within the Office of the Staff Judge Advocate (4) The duty of confidentiality continues after the lawyer-client relationship has been terminated. g. Expectations of Confidentiality. (1) A client may consent to disclosure of confidences (Army Rule 1.6(a)). (2) Disclosure may be impliedly authorized in order to carry out representation (Army Rule 1.6(a)). (3) Disclosure is permitted to establish a claim or defense in a controversery with a client (Army Rule 1.6(b)). (4) Intention to commit a crime. (a) Army Rule 1.6(b) mandates disclosure of information a lawyer reasonably believes necessary to prevent a client from committing a crime, which is likely to: - Result in imminent death or substantial bodily harm, or Chapter 1 Basics Page 48

55 - Significantly impair the readiness or capability of a military unit, vessel, aircraft, or weapon system. (b) There is no authority for revealing information of other potential offenses or past crimes under the Army Rules. Example: Revealing whereabouts of a fugitive. ABA Formal Opinion (1984) (withdrawing formal opinions 155 and 156, which stated that defense counsel must reveal client whereabouts new rule is defense counsel does not disclose). NOTE - A Soldier informing his/her defense counsel of their intentions of going absent without leave (AWOL) in of itself is not enough to mandate disclosure of the information by the attorney. h. Military Representation and Referral. Army Rule 1.5f-h. (1) A lawyer shall not accept a gratuity, salary, or other compensation from a client for services performed as an officer of the U.S. Army. The basic rule is that you CANNOT take ANY compensation or gratuity for your duties. You can, however, share brownies as long as it is shared with the entire office. You could possibly put the brownies in the break room for everyone to enjoy. It is easier to turn down the gratuity than it is to give it back. (2) A lawyer shall not receive compensation for making a referral of a client to a private-practitioner. A legal assistance attorney shall not receive any actual or constructive compensation or benefit for referring to a private-practitioner (including himself) a matter the lawyer first became involved with in a military legal assistance capacity. Comment to Army Rule 1.5; see also AR 27-3, para 4-7d & d(1). (a) Does not subsequently prohibit a reserve component lawyer from representing military personnel or dependents in a private capacity so long as the representation does not concern the same general matter for which the attorney provided military legal assistance. AR 27-3, para 4-7d(2) & (3) Same general matter means (AR 27-3, para 3-6) - One or more types of cases within any one of the ten categories of legal assistance; OR - Which arises out of the same factual situation or course of events. (AR 27-3, para 4-7d(2)). (b) Prohibits lawyer from using official position to solicit or obtain clients for private practice. (c) Reserve Component Directory (AR 27-3, para 4-5). assistance program. - By being listed, attorney agrees to participate in the legal Chapter 1 Basics Page 49

56 - Accepted referrals within the scope of the legal assistance program MUST be on a no fee basis. (AR 27-3, para 4-5d). - Referrals outside the scope of the program may be accepted on a fee basis. - The client MUST understand the nature of the referral (legal assistance or for fee) prior to commencing the representation! i. Conflicts of Interest. (Army Rule 1.7) (1) Directly adverse to the current client. A lawyer shall not represent a client if the representation of the client will be directly adverse to another client unless (a) The lawyer reasonably believes the representation will not adversely affect the other relationship, and (b) Each client consents after consultation (Army Rule 1.7 (a)). (c) If a conflict develops after representation has been undertaken, the attorney must seek to withdraw. The Army Rules adopt an objective approach. Relevant factors in determining whether multiple representations should be undertaken include: (AR 27-26, p 12) clients involved; - Duration and intimacy of the lawyer s relationship with the - Likelihood actual conflict will arise; and, - Likely prejudice to the client if conflict does arise. (d) Potential conflicts in legal assistance: - Estate planning. (Army Rule 1.7) - Debtor-creditor and seller-purchaser. Compare Atlantic Richfield Co. v. Sybert, 456 A.2d 20 (1983) with Hill v. Okay Construction Co., 256 N.W. 2d 107 (1977) (conflict). - Domestic relations. Coulson v. Coulson, 448 N.E. 2d 809 (1983); Ishmael v. Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592 (1966). (e) Potential conflict in criminal practice representing multiple accused. Ordinarily, a lawyer should refuse to act for more than one of several codefendants (Comment to Army Rule 1.7). See Standards for Criminal Justice 4-3.5(b). Consult AR and USATDS SOP for procedures on handling co-accused situation. Generally: (Army Rule 1.7) Chapter 1 Basics Page 50

57 counsel. military counsel. - Co-accused will initially be contacted by separate defense - Co-accused may submit request for the same individual - Chief, USATDS decides whether to grant the request. No request will be granted unless each co-accused has signed a statement reflecting informed consent to multiple representations and it is clearly shown that a conflict of interest is not likely to develop. (2) Representation materially limited. A lawyer is also precluded from representing a client if the representation would be materially limited by the lawyer s responsibility to another client, a third party, or by the lawyer s own interests (Army Rule 1.7(b)). Example: defense counsel materially limited by loyalty to Army. United States v. Bryant, 35 M.J. 739 (A.C.M.R. 1992). 1.7b(1)&(2)) (a) A possible conflict does not preclude representation. (Army Rule (b) Representation is permitted if the lawyer reasonably believes that it will not be adversely affected by the interest and the client consents after consultation. (Army Rule 1.7b(1)) (3) Prohibited transactions. A lawyer shall not enter into a business transaction with a client (Army Rule 1.8). (4) Former client. A lawyer who has represented a former client shall not thereafter represent another person in the same matter or use information to the disadvantage of a former client (Army Rule 1.9). j. Imputed Disqualification. (1) Lawyers working in the same military law office are not automatically disqualified from representing a client. A functional analysis is required (Army Rule Compare ABA Model Rule 1.10). (2) Army policy may discourage representation of both parties in certain instances, e.g. AR 27-3, para 4-9c. (Representation of both parties in a domestic dispute discouraged). (Army Rule 1.10) (3) In civilian practice, a whole firm is disqualified from representing adverse interests of the client of one member of the law firm. The Army does not have this automatic rule, as it would grind our practice to a halt. We use a functional analysis. Your supervisor will consider whether the office can: (Army Rule 1.10) Chapter 1 Basics Page 51

58 NOTE - An attorney who had once worked in Legal Assistance had advised a client on a support issue. Now that attorney works in the Criminal Law section as a Trial Counsel. Even though the section is not disqualified, the Trial Counsel is if they have not disclosed any matters pertaining to the Soldier. (a) Preserve Confidentiality: Consider access to files, sharing clerks, use of computers, and if you are on a network all can impact this decision. (b) Maintain Independence of Judgment: Each attorney must maintain loyalty to their client and provide zealous representation. 3. Tribunal Publicity. a. Tribunal Publicity Rules. (Army Rule 3.6) (1) A lawyer shall not make public statements that will have a substantial likelihood of prejudicing a proceeding. See Gentile v. Nevada State Bar, 111 S. Ct (1991). (2) Other publicity considerations. (a) TJAG memorandum on Relations with News Media. (b) USATDS SOP. b. Impartiality and Decorum of the Tribunal. Prohibitions against ex parte (from one side or party only) discussions with the Military Judge and panel members. (1) A lawyer shall not communicate ex parte with a judge or juror except as permitted by law. See United States v. Copening, 34 M.J. 28 (C.M.A. 1992); United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994). (2) It is unprofessional conduct for a prosecutor to engage in unauthorized ex parte discussions with or submit material to a judge relating to a particular case, which is or may come before the judge (Standards for Criminal Justice 3-2.8(c)). c. Fairness to Opposing Party and Counsel. Rules for the handling of evidence and contraband. (1) If the client informs the lawyer of the existence of the evidence, but does not relinquish possession. (a) Lawyer should inform the client of the lawyer s legal and ethical obligations regarding the evidence. (Army Rule 3.4) (b) Lawyer should refrain from either taking possession or advising the client what to do regarding the evidence (See USATDS SOP, para 1-12). Chapter 1 Basics Page 52

59 (2) If the lawyer receives the evidence or contraband. (a) A lawyer shall not (Army Rule 3.4a) - Unlawfully obstruct another party s access to evidence; - Unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value; or, - Assist another person to do so. (b) A lawyer who receives an item of physical evidence implicating the client in criminal conduct shall disclose the location of or shall deliver that item to proper authorities when required by law or court order (Comment, Army Rule 3.4(a)). United States v. Rhea, 33 M.J. 413 (C.M.A. 1991) (defense counsel have a duty to surrender evidence that implicates their clients to prosecution). (c) If a lawyer receives contraband, the lawyer has no legal right to possess it and must always surrender it to lawful authorities (Comment, Army Rule 3.4). (d) If a lawyer receives stolen property, the lawyer must surrender it to the owner or lawful authority to avoid violating the law (Comment, Army Rule 3.4). (e) Concealment, destruction, alteration, etc. could be a violation of UCMJ Article 134, Obstruction of Justice. (3) If the lawyer discloses the location of or delivers an item of physical evidence to proper authorities it should be done in a way designed to protect the client s interests, including (Army Rule 3.4) (a) Client s identity. (b) Client s words concerning the item. (c) Client s privilege against self-incrimination. (d) Other confidential information. (4) Advice on handling evidence or contraband: (a) Don t accept the item! (b) Advise the client of the consequences of continued possession and voluntary turn-in; do not advise the client of what to do regarding the evidence. Also advise the client of the lawyer s obligations regarding the evidence. (Army Rule 3.4) Chapter 1 Basics Page 53

60 authorities. (c) If possession cannot be avoided, turn it in to the proper - Don t dispose of, secret, or conceal it. (Army Rule 3.4a) - Don t destroy or alter the evidentiary quality. - Upon turn-in, refuse to disclose client identity and circumstances of your possession to the extent permitted by applicable case law. 4. Candor Towards the Tribunal (d) There is no protection from court-ordered disclosure. a. A lawyer s obligation for truthfulness in statements to others. (1) A lawyer shall not make a false statement of law or fact to third parties (Army Rule 4.1(a)). (a) Knowledge of falsity generally required. (b) Misrepresentations can occur if a lawyer affirms a false statement of another person. (Army Rule 3.3, p 22) (2) A lawyer may not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6 (Army Rule 1.4(b)). (3) A lawyer also has an obligation to disclose prior misstatements. b. Respect for the rights of third parties. (1) A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third party of use methods of obtaining evidence that violate the rights of third parties (Army Rule 4.4). (2) Other obligations to third parties: (a) A lawyer has a duty of candor when dealing with third parties. People v. Berge, 620 P.2d 23 (Colo. 1980). (b) A lawyer is forbidden from engaging in illegal, dishonest, and fraudulent conduct. Office of Disciplinary Counsel v. Kissel, 442 A.2d 217 (pa. 1982). Chapter 1 Basics Page 54

61 (c) Lawyers must not make derogatory remarks about opposing counsel or opposing parties. Professional Responsibility, The Army Lawyer (Sept. 1978) ( lowly, dishonest, welsher ). See also State v. Turner, 538 P.2d 966 (Kan. 1975). c. Communication with a person represented by counsel. (1) A lawyer shall not discuss a case with another party who is represented by an attorney (Army Rule 4.2). See also ABA Code DR (a) A lawyer may not accomplish communication indirectly through an agent or encourage clients to contact opposing parties. (b) Communication with a party concerning matters outside the representation is permissible. (c) A lawyer may communicate with the Commander of an opposing party, even if the party is represented by counsel. (2) A lawyer is not precluded from communicating with an unrepresented party (Army Rule 4.3). neutral. (a) Lawyers may not state or imply that they are disinterested or (b) Lawyers should refrain from giving advice to unrepresented persons (Comment, Army Rule 4.3). See also ABA Code DR 7-104(A)(2). d. Rules against threatening prosecution. (1) Under ABA Code DR 7-105, lawyers could not present, participate in presenting, or threaten to present criminal charges solely to gain an advantage in a civil matter. See Iowa State Bar v. Michelson, 345 N.W..2d 112 (Iowa 1984); TJAG Opinions, The Army Lawyer, March 1993 and may (2) There is no parallel provision in the Army Rules (or ABA Model Rules). Threatening or filing criminal charges may, however, violate more narrow provisions of Rules 3.1, 3.3, 3.4, 3.5, 3.8, 4.4, 8.4(b), or 8.4(e). (3) Practical application. (a) Attorneys should exercise caution when writing to collect support payments or debts on behalf of clients. See Iowa State Bar v. Michelson, 345 N.E.2d 112 (Iowa 1984); TJAG Ethics Opinions, The Army Lawyer, March 1993 and May (b) Complaints to the opposing party s Commander are permissible. Chapter 1 Basics Page 55

62 (c) Lawyers should avoid making threats of initiating criminal charges. A lawyer may not circumvent this rule by encouraging clients to make threats. In re Charles, 618 P.2d 1281 (1980). (d) Neutral statements of fact concerning criminal penalties are permissible. See TJAG Professional Responsibility Opinion AR AR 27-1 AR 27-3 AR References Performance Measure: Take the written test below. Scenario 1: A man calls you at the office, refuses to identify himself, and reports the following: He saw two of your trial counsel (opposing genders) coming out of a hotel room holding hands. Both trial counsels are married to other people. 1. Do you report this allegation through technical channels IAW Chapter 7, AR 27-1 (Professional Conduct Inquiries)? 2. Would your analysis be different if it were a trial counsel and a Military Judge? Scenario 2: You just arrived at Fort Nowhere from AIT and have been assigned to the Criminal Law Office. You are standing in the open area where your fellow paralegal specialists are slaving away and you smile because you love your new job. Suddenly you hear one of your colleagues on the phone: PV2 Snuffy: No Sir, what you need to do is an Article 15 for AWOL, not FTR Right, sir, that way we will be able to process the Soldier for discharge much faster Yes, sir, I m sure that your trial counsel would agree No, sir, I ll type up the paperwork so you can administer the Article 15 this afternoon. What, if anything, do you do? NOTE These scenarios are meant to get you to think about the Army Rules and there may not be a right or wrong answer. See Appendix A-6 for the answers to this exercise. Chapter 1 Basics Page 56

63 Manage Legal Manpower Condition: You are a Command/Chief Paralegal NCO assigned to the Office of the Staff Judge Advocate. Your organization has been identified by the Department of the Army to transform into the next generation war-fighting unit. This transformation may change the requirements/authorizations for legal personnel and equipment required to accomplish the legal mission in support of the organization. To support the organization in its transformation, your Staff Judge Advocate has directed you to ensure adequate numbers of Paralegals are structured in the organizations manpower design. In addition, your SJA has directed you to protect the legal personnel who provide dedicated legal support to the installation. You have access to a computer with internet connection. Performance Measures: 1. Introduction to Manpower Management. a. As a Command/Chief Paralegal NCO you have numerous duties and responsibilities, each competing for priority and time. One area that is gaining importance is the effective management of the two primary manning documents: (1) Modification Table of Organization and Equipment (MTOE) (2) Table of Distribution and Allowances (TDA) The MTOE and TDA manning documents reflect the number of required JAGC positions assigned to an organization, as well as the number of required positions that have been authorized for fill with a JAGC asset. Authorized positions provide the JAGC leadership with the manpower pool to staff JAGC positions. Understanding the information contained in the manpower manning documents is critical to your success as a Command/Chief Paralegal NCO. Your understanding of the manpower manning documents, especially the MTOE and TDA, will tell you where your legal assets are required and where your legal assets are authorized. b. Because the manpower management arena is in a constant state of flux, nothing in this section should be taken as gospel without checking with your installation Resource Management Office, G3, or with the Combat Developments Directorate, TJAGLCS. These organizations are normally up to date regarding new processes that affect manpower management. In addition, AR 71-32, Force Development and Documentation - Consolidated Policies, is the recognized authority for manpower documents. It contains the manpower policies and procedures and should be referenced frequently for manpower document action. Chapter 1 Basics Page 57

64 c. The purpose of this section is to provide you with proactive tools to successfully operate the manpower management process. The goal is not to make every Command or Chief Paralegal NCO a Combat Developer, school trained on force management. Rather, the goal is to familiarize you with the resources available and the understanding of those resources to defend the JAGC from unnecessary manpower cuts. Because the purpose of this section is to present a working knowledge of the documentation system, some explanations and definitions may be general in nature and not accurate for every exception or variation. The differences should not affect your basic understanding of the system. 2. Common Manpower Management Terms. a. Table of Organization and Equipment (TOE). The TOE is a "requirements" document that prescribes the capabilities, organizational structure, and Minimum Essential Wartime Requirement (MEWR) for personnel and equipment for military units. The TOE provides the foundation from which the MTOE is built. The TOE can be a structure blueprint for either a single MTOE unit or for numerous MTOE units. Because the TOE contains the minimum essential wartime requirement for equipment and personnel for the unit to accomplish the wartime mission, there is no distinction made regarding whether the MTOE units are Active Component (Compo 1), or National Guard (Compo 2), or U.S. Army Reserve (Compo 3). The TOE is "Compo Blind." b. Modification Table of Organization and Equipment (MTOE). The MTOE is an "authorizations" document that prescribes the modification of a basic TOE necessary to adapt it to the needs of a specific unit or type of unit based on geographical location or mission. MTOE units are the Army's "Go to War" units (or operating force). MTOE documents are managed and built by HQDA. The MTOE document prescribes personnel and equipment requirements and authorizations for military units. An MTOE unit can be identified by the Unit Identification Code (UIC). If the 2nd digit in the UIC is a letter, the unit is an MTOE unit (i.e. WABTAA, WAU3AA, WHU9T0). c. Table of Distribution and Allowances (TDA). The TDA is an "authorizations" document that prescribes the organizational structure and the personnel and equipment requirements and authorizations of a military unit to perform a specific garrison mission. TDA units form the Army's "Institutional" force (or generating force), providing support to the Army s Go to War units. TDAs are built and managed by their local command. A TDA unit is also identified by UIC. If the 2nd digit in the UIC is a number, the unit is a TDA unit (i.e. W1ETAA, W1D21A). In addition, there are two additional TDA manning documents: (1) Augmented TDA (AUGTDA): The AUGTDA manning document records the mission, organizational structure, personnel and equipment requirements, and authorizations to augment a MTOE unit to perform added non-toe peacetime missions. AUGTDAs can include civilian personnel and/or commercial equipment allowances required and authorized to a MTOE unit. Chapter 1 Basics Page 58

65 (2) Mobilization TDA (MOBTDA): Defines the required legal structure for the office in the event of a mobilization. d. Manpower Staffing Standards: Manpower staffing standards are the criteria used to establish legal positions on TDA manning documents. These staffing standards are generated from manpower surveys that scrutinize the legal organization to evaluate the OSJA s assigned mission. The manpower survey validates the number of legal personnel needed to accomplish the mission; it can also identify those legal tasks that can be performed by the civilian workforce. Remember, each installation may have their own procedures for validating TDA requirements. These manpower staffing standards DO NOT apply to TOE/MTOE units. e. Requirement: A requirement on an organizational document reflects the number of civilian and military personnel, equipment, and materiel needed to accomplish the organization s mission. f. Authorization: An authorization on an organizational document reflects the funding of the required position. While requirements reflect the minimum essential amount of manpower needed to perform the legal mission, the amount of authorizations form the actual manpower pool available to perform the legal mission. Because of budgetary constraints, authorized positions may be less than and will not exceed required positions. g. Force Management System Web (FMS Web). Force Management System (FMS) is the automated system that supports the development and documentation of organizational structures, and the requirements for and authorizations of personnel and equipment needed to accomplish the assigned mission of Army units and activities. The installation or Army staff agency is responsible for developing and/or processing FMS documents. FMS provides each Army unit with an authorization document containing the HQDA approved organizational structure, as well as personnel and equipment requirements and authorizations. FMS Web, maintained and controlled by Office of the Deputy Chief of Staff for Personnel (ODCSPER), contains the official authorization database for the Total Army. Your MTOE or TDA documents are products of FMS Web. h. Proponent: An organization assigned with primary responsibility for a specific organization or functional area. Included are career field development and changes to personnel management policies in specific occupational career fields. The Judge Advocate General (TJAG) is the personnel proponent for the JAGC. The CSM of The Corps and the Warrant Officer of the Corps are TJAG s primary enlisted and warrant officer advisors concerning all personnel proponent issues including recruiting, retention, training, and other personnel management matters. Proponents can also represent major weapons systems like the Apache Attack Helicopter or the M1A1 Tank. Chapter 1 Basics Page 59

66 i. Functional Areas of the Army: The Army is broken down into three functional areas: Maneuver, Fires, & Effects (MFE), Force Sustainment (FS), and Special Branches. Every branch of the Army is categorized into these three functional areas: (1) Maneuver, Fires, & Effects (MFE): Infantry, Armor, Field Artillery, Air Defense Artillery, Special Forces, Civil Affairs, Chemical, Engineer, Information Operations, Military Police, Psyops, Public Affairs, and Aviation. (2) Force Sustainment (FS): Acquisition, Adjutant General, Human Resources, Logistician, Ordnance, Quartermaster, and Transportation. (3) Special Branches (SB): Judge Advocate General s Corps, Chaplain, Medical Corps, Medical Services, Medical Specialists, Nurse Corps, Dental Corps, and Veterinary Corps. (4) Operations Support (OS): Academy Professor, FAO, Force Management, Info System Management, Key Leader, Military Intelligence, Nuclear and Counterproliferation, OPS Research & Systems Analysis, Signal, Simulation OPS, Space OPS, Strategic Intel, Strategic Plans & Policy, and Telecomm Systems Engineer. 3. Table of Organization and Equipment (TOE). a. Every war-fighting unit in the Army is organized on a TOE document. The TOE is a requirements document that shows the wartime mission, capabilities, dependencies, personnel requirements, and equipment requirements for military organizations. It is not an authorizations document; it shows only requirements. It is not an MTOE, which is an "authorizations" document that is based on the TOE. Requirements for personnel and equipment listed on TOE documents are based on the mission essential wartime requirement (MEWR) and not on manpower/workload surveys. b. The TOE structure is primarily built from two sources and frequently reflects a combination of both. For combat TOE units, doctrine is the source that provides the structure. For example, infantry doctrine mandates four Companies per infantry Battalion (illustration purposes only). For force sustainment and special branches, the source for their structure is contained in the appropriate Manpower Requirements Criteria (MARC). The JAGC MARC states that one legal position is required for each Battalion/Squadron. Thus, a TOE for an infantry Battalion reflects a doctrinally sound structure (four Companies) and a structure that satisfies the requirements contained in the appropriate MARC (one legal position). c. The TOEs are never static. The Army is continuously changing the way it fights. New Army missions, priorities, presidential guidance, and many other factors such as the fielding of a new weapons system continue to mold the Army. These influences can either cause the creation of a new war-fighting unit or the modification of an existing unit. These changes are captured in TOE documents. Chapter 1 Basics Page 60

67 d. TOE organizational documents are reviewed every three to five years by the manpower analysts who work in the Requirements Determination Directorate, located at Fort Leavenworth and at Fort Lee. The TOE analysts review the mission, the unit s structure, the amount of equipment, and the manpower requirements needed to support the unit s wartime mission. Involvement of the manpower analysts who work in the Combat Developments Department (CDD) is especially critical during this review. CDD analysts representing every proponency review the TOE, primarily focusing on personnel and equipment requirements. Additionally, any changes affecting the TOE structure are also evaluated for the impact to ARNG and USAR forces. e. Bottom line: Because TOE documents are constantly changing, requirements on your MTOE documents may also change which requires constant monitoring. 4. Introduction and Review of MTOE Manning Documents. a. The constant change in the requirements on the TOE will eventually impact the requirements of MTOEs. This requires constant monitoring by you. While most senior NCOs rarely see an actual TOE, most will become very familiar with the MTOE. The MTOE is a modified version of a TOE that prescribes the unit organization, personnel, and equipment necessary to perform a mission in a specific geographic or operational environment. The MTOE is a duplicate of the TOE with one important difference. While the TOE provides the amount of personnel and equipment requirements for the unit, the MTOE provides the amount of personnel and equipment authorized. b. Before we review the MTOE manning document, we need to address three very important questions: (1) Is the SJA office on an MTOE or a TDA manning document? The easiest way to determine this is by the unit identification code (UIC). If the UIC has a number as the second digit (W1ETAA), the unit is organized on a TDA manning document. However, if the second digit is a letter (WAF7AA), the unit is organized on an MTOE manning document. Determining the type of manning document is an important distinction that is often overlooked. Recognize that some of your legal assets physically working in the same office may appear on two different manning documents. (2) Where do I get a copy of my manning document? Hopefully, your office should already have a working relationship with the force structure analysts that work at your installation. If not, your first stop should be your G1 strength manager's office. The individuals who work in the G1 should have access to the manning documents you need, or should be able to point you in the right direction. Another stop in your search may be at the office of the Directorate of Resource Management (DRM) for your assigned installation. Both agencies should also provide you with the AUGTDA or MOBTDA for your office. Finally, visit the USAFMSA Website at commonly referred to as FMS Web, and request a user-name and password for documentation review. Every document the Army produces is found on this website. As a last resort, contact Combat Developments at TJAGLCS. Chapter 1 Basics Page 61

68 (3) Once I get a copy of my manning document, where do I find my legal assets? Normally, JAGC assets are located or embedded inside the MTOE Headquarters Company for the unit (we don t have legal Companies, Battalions, or Brigades). For Brigades and below, most of the legal assets are located in the S1 or Admin Section of the HQs (Non-lethal effects cell for BCTs). Because we have legal assets in Battalions, Brigades, Divisions, and other war-fighting units, simply asking for an MTOE for the entire Division or Brigade may not reveal your true manpower strength. For example, a typical BCT has an E7 27D in the Non-Lethal Effects section of the Headquarters Company. In order to get an accurate picture of 27D strength for the entire Brigade, you should request the MTOE for the HHC of the Brigade, and the HHC MTOE documents for each of the subordinate Battalions. If you are the new Command Paralegal NCO at a Division and you want to get an accurate count of all the 27Ds in that Division, you must start by requesting the MTOE for the HHCs of the Battalions, Brigades, and the Division, plus any additional stand alone war-fighting units that may be a tenant of that installation. Your installation resource managers or force structure analysts should be able to compile the list of legal assets for you. While determining how many legal assets are assigned to your installation or organization may be labor intensive, determining how many legal requirements are authorized for fill, and where these legal requirements are located are critical to the success of your legal mission. The authorizations located on your installation form the manpower pool that accomplishes the legal mission. c. Additional Skill Identifiers (ASIs) and Special Qualification Identifiers (SQIs). (1) Common JAGC ASIs (Enlisted): (a) C5 Court Reporter. (b) 2S Battle Staff Operations. (c) 2B Air Assault. (d) 5W Jump Master. (2) Common JAGC ASIs (Officer): (a) 3G Claims/Litigation Specialist. (b) 3D Government Contract Law. (c) 3N International Law Specialist. (d) 3I Basic Military Justice Practitioner (MJP). (e) 3M Senior MJP. (f) 3P Expert MJP. Chapter 1 Basics Page 62

69 (g) 3T Master MJP. (3) Common JAGC SQIs: (a) P Parachutists. (b) M First Sergeant. (c) H Instructor. (d) G Ranger. (e) X Drill Sergeant. (f) 2 Training Development. 5. Introduction to the TDA Manning Document. a. The Army s institutional TDA force supports the Army s war-fighting units. Understanding the TDA manning document is just as critical as understanding the MTOE manning document. Almost all Army installations today contain a mixture of MTOE and TDA organizations. Understanding how the required and authorized positions on your TDA manning document are managed will provide you with the ability to effectively manage the organizational changes that will occur to your TDA structure. b. Before reviewing a TDA manning document, let's review some basic facts concerning the TDA organization and the process that generates requirements and authorizations: (1) The TDA is an authorizations document that reflects requirements and authorizations for both equipment and personnel for the Army s institutional force. units. (2) Units organized on a TDA may contain civilian positions, unlike MTOE (3) TDA units are identified by UIC. If the 2d digit in the UIC is a number, the unit is a TDA unit (W1ETAA, W2D21A). Unlike TOE/MTOE documents, TDA documents do not have a SRC. (4) MTOE and TDA documents are considered authorizations documents because they show requirements and authorizations (remember, a TOE document only shows personnel and equipment requirements, and is known as a requirements document). While these two authorizations documents are similar, how they generate the requirements and authorizations is vastly different. Understanding the difference is critical when dealing with organizational changes. Chapter 1 Basics Page 63

70 c. Personnel requirements and authorizations on the TDA manning document are established and managed quite differently from MTOE manning documents. Let's briefly review how requirements are generated for a TDA organization: (1) Personnel requirements on TDA documents are generated from manpower staffing guides. Manpower analysts use this staffing structure as a reference when building the TDA SJA office. The SJA staffing structure varies from installation to installation based on a number of factors, to include: (a) Level of Court-Martial Convening Authority. (b) Installation Mission. (c) Supported Troop Population. (d) Geography. (e) Tasks, functions, and workload of the specific SJA office. (2) Because no two installations are exactly alike, these analysts also utilize the manpower survey to validate the structure of the TDA document for the SJA Office. The function of the manpower survey is to answer the following five questions in the order listed below for the installation SJA office: command? functional area? (a) What services or functions does the SJA office provide to the (b) What are the major duties expected to be performed in each (c) What are the underlying sub tasks that have to be performed? these sub tasks? (d) How much time does the average legal asset need to perform (e) What kind of legal asset can perform these duties: a lawyer, a Paralegal Specialist, an NCO, or a full-time or part-time civilian. (3) Manpower surveys are conducted on TDA organizations whenever there is a significant workload disturbance (i.e. workload increases or decreases.) Because the Army is in a constant state of change, manpower surveys can happen at any time, but they typically occur at least every three to five years. We are not going to review how a manpower survey is conducted. It is a complicated process that is outside the scope of this section. The important point to remember is a TDA manning document reflects the number of required legal positions needed to provide the installation with legal support. Chapter 1 Basics Page 64

71 (4) Generally, the personnel requirements reflected on your TDA are the results of the process outlined above. Getting these required positions authorized is a little less complicated because it comes down to one fact: Can the command afford the position? We know that HQDA provides the authorizations on the MTOE manning documents. However, getting the required positions on your TDA authorized is a shared responsibility between your local command, Army Service Component Command (ASCC), Direct Reporting Unit (DRU), and DA. If you can convince the ASCC/DRU that the required position on your TDA should be authorized, you should feel comfortable that DA will agree. (5) The ASCCs/DRUs are responsible for every MTOE/TDA organization in the Army. FORSCOM, TRADOC, USAREUR, CID, and USASOC are just a couple of the more common ASCCs/DRUs. While it is true that your local command or installation controls the authorizations on your TDA, the ASCCs/DRUs also play a significant role because they provide the local command with one very important resource: money. The ASCCs/DRUs distribute funding (obtained from DA) to the organizations or installations for which they're responsible. FORSCOM for instance, controls the authorizations for the war-fighting units. TRADOC provides funding for schools and training facilities. (6) Bottom line: If your installation doesn t receive the funding for your TDA positions from the ASCCs/DRUs, your positions will not be authorized. The budget process is another extremely complicated area that is outside the scope of this section. Just understand that the authorizations on your TDA are controlled by your local installation, and by the priorities of your higher ASCC/DRU. d. With this background information, let's get started with understanding the TDA manning document and your role in managing the legal assets or authorizations that are reflected on it. We already discussed how to determine if the legal assets in your office are contained on an MTOE or TDA manning document. To recap, if the second digit in your office UIC is a number (W1ETAA, W3BTAA), the office is on a TDA manning document. e. The TDA manning document is broken down into three sections: (1) Section I: Provides administrative information about the organization. Section I may include the narrative guidance concerning any manpower turbulence and whether there has been an increase or decrease in manpower requirements and/or authorizations. (2) Section II: Lists personnel requirements and authorizations, organized by sections or functions, and represented by individual paragraphs. Section II also provides a definition page explaining any ASI, SQI or other remarks located in the TDA manning document. (3) Section III: Lists Equipment Chapter 1 Basics Page 65

72 6. Requesting a Change to your MTOE/TDA Manning Document. There are occasions when your manpower document needs to be changed due to many different reasons. Regardless of the situation, if you have to make a change to your manpower documents, whether MTOE or TDA, the following steps should assist you: a. Before making any change to your manning document, speak to the manpower analysts located at your installation, either in the Resource Management Office or the G1. These analysts should be able to provide you with guidance and possibly examples of what documentation is required to affect your desired changes. b. Contact the manpower analysts in the Combat Developments Directorate located at TJAGLCS. The manpower analysts in the Combat Developments Directorate are current on the force structure changes affecting the Army as a whole. They may be able to provide insight as to why your manpower document was changed. c. There are two forms that are normally required when making a change to your manpower documents. (1) DA Form 2028, Recommended Changes to Publications and Blank Forms, is frequently used to submit changes that affect the personnel assets on your manpower documents. (2) DA Form 4610-R, Equipment Changes in MTOE/TDA, is frequently used to submit changes to the equipment listed on your MTOE/TDA documents. d. FORSCOM PAM 310-3, FORSCOM Guide to TOE, MTOE, TDA, and CTA Changes, provides an excellent reference on how to fill out the two forms listed above. Other organizations, however, may have their own guide. Your installation manpower analysts should have a guide applicable to your organization. 7. Using FMS Web. a. The Force Management System Website (FMS Web) is the tool to use when you want to check the documents of either a MTOE or TDA unit. FMS Web also contains TOEs and other useful force structure information. For the purposes of this section we will go through the necessary steps to access FMS Web, extract documents pertaining to both MTOE and TDA units, search for positions, identify ASIs, SQIs, and learn how to save all that information into report form for later use. b. In order to access FMS Web you must be able to logon with your CAC card. Additionally, there is a requirement that your security officer validate your current clearance before an account can be created. The web address for FMS Web is: (1) Logon with your AKO username and password, read the security warning and choose accept. Chapter 1 Basics Page 66

73 (2) Click on the icon labeled AUTH Documents. At this point you can choose to search for either a MTOE or TDA document. NOTE - There are a variety of ways to search for the particular unit you want to research. The fastest and most direct way is to search using the unit identification code (UIC). However, there are a variety of other ways such as searching by command, geographical location, type of organization, etc. (3) After selecting MTOE click on the Unit by UIC icon. There will be an option to search for a UIC s documents that are approved, approved/history, and staffing. Selecting approved will give you the unit s currently approved manning document. Selecting approved/history will give you the currently approved document plus historical documents. Selecting the staffing document will allow you to look at any possible manning documents that have not yet been approved. (4) On the next screen a variety of selections will appear. The most common tools here are to look at either the unit s personnel or equipment. We will select the personnel icon and all personnel within that unit will appear on the screen. Typically we only want to see what legal assets a particular unit has. The quickest way to display only legal personnel is to search by position code (POSCO). Type 27 in the field and hit enter or click on search. The following screen should show you all Judge Advocates, Legal Administrators, and Paralegals within the unit you are searching. (5) This document shows you the following information: (a) PARNO Paragraph number. All personnel that work in a certain section such as a SJA Office, S1, FECC, etc. (b) LN Line number. Very important when communicating about a specific position with force structure personnel. Paragraph and line number is the easiest way to describe a position on a manning document. (c) Title The name of the position. (d) Grade The pay grade of the position. (e) POSCO The position code is the MOS. (f) SQI/ASI - Special qualifications and additional skill identifiers. (g) There are many other bits of information but the next column to be concerned with is the REQ STR Required strength (TOE). (h) AUTH STR Authorized strength is the amount of bodies you are authorized for this particular position. Very important column. Chapter 1 Basics Page 67

74 (i) RMK Remarks column, these have a variety of information look in the Definitions box to define what they are. (6) In order to save this information in report format select the spreadsheet icon and follow the onscreen instructions. You will probably have to select the security banner on the pop up window in order to download the file. Save the file to a location of your choice. (7) The method used to search for positions on a TDA document are relatively the same as for a MTOE document. Keep in mind that on TDA documents there are often times civilian positions listed and using a POSCO search and the 27 will not pull those civilian positions. Find the paragraph number for the section you are researching and go directly to that paragraph that way all positions will be displayed and not just military positions. AR AR DA Pam FORSCOM Pam FMS Web References Performance Measure: Take the written test below. 1. A TOE document is what type of document? 2. MTOE and TDA manning documents are what type of documents? 3. What is a Proponent? 4. What is ASI C5? See Appendix A-7 for the answers to this exercise. Chapter 1 Basics Page 68

75 Chapter 2 Military Justice Table of Contents SECTION I: Military Justice Basics 1. Employ Military Justice Online (MJO) 2. Employ the Manual for Courts-Martial (MCM) 3. Prepare a Military Justice Report (MJR) SECTION II: Nonjudicial Punishment 1. Prepare, Process, and Review a Record of Summarized Proceedings under Article 15, UCMJ 2. Prepare, Process, and Review a Record of Formal Proceedings under Article 15, UCMJ Chapter 2 Military Justice Page 69

76 3. Prepare, Process, and Review a Record of Supplemental Action under Article 15, UCMJ SECTION III: Courts-Martial Pre-Trial 1. Prepare and Process Court-Martial Documents through Preferral 2. Prepare and Process a Soldier for Pre-Trial Confinement 3. Prepare and Process an Article 32 Investigation 4. Prepare a Staff Judge Advocate s (SJA) Pre-Trial Advice Memo 5. Prepare and Process a Referral to Trial 6. Prepare and Process a Summary Court-Martial (SCM) 7. Prepare a Summarization of Testimony/Proceedings 8. Prepare a Court-Martial Convening Order (CMCO) 9. Prepare and Process a Subpoena 10. Prepare and Process a Travel Order for a Witness 11. Prepare and Process a Voucher for Payment of Witness 12. Prepare a Findings Worksheet 13. Prepare a Sentence Worksheet 14. Prepare a Pre-Trial Agreement 15. Draft a Stipulation of Fact 16. Prepare and Process a Request for Chapter 10, Discharge in Lieu of Trial by Court-Martial SECTION IV: Courts-Martial Post-Trial 1. Prepare a Report of Result of Trial 2. Prepare and Process a Soldier for Post-Trial Confinement Chapter 2 Military Justice Page 70

77 3. Prepare and Process an Involuntary Excess Leave Form 4. Prepare and Process a Record of Trial 5. Prepare a Certificate of Correction 6. Prepare a Court-Martial Chronology Sheet 7. Prepare a Staff Judge Advocate (SJA) Post-Trial Recommendation 8. Prepare a Convening Authority s Action 9. Prepare and Process an Initial Court-Martial Promulgating Order SECTION V: Administrative Memorandum/Letter of Reprimand Prepare and Process a Non-Punitive Administrative Memorandum/Letter of Reprimand for filing in the Official Military Personnel File (OMPF) SECTION VI: Involuntary Administrative Separations 1. Prepare, Process, and Review an Involuntary Enlisted Administrative Separation for the Active Army 2. Prepare, Process, and Review an Involuntary Enlisted Administrative Separation for the U.S. Army Reserve Component NOTE: See Chapter 3 Legal Assistance for Voluntary Administrative Separations Chapter 2 Military Justice Page 71

78 SECTION I: Military Justice Basics Employ Military Justice Online (MJO) Condition: You are a Paralegal working in a Criminal Law Office and you are tasked with using Military Justice Online to perform your duties. You need to become familiar with this system and use it to perform your daily tasks. You have access to a computer with internet access. Performance Steps: NOTE: The following subject is from the MJO Users Manual found on JAGCNet. For more information about MJO, please contact ITD, OTJAG or visit the MJ Online website through JAGCNet. 1. Getting Started: Military Justice Online (MJOnline or MJO) is a web-based application, built by the Information Technology Division (ITD) to provide GCMCA s and SPCMCA s worldwide a better means to create, record, track, and administer military justice actions. Once the information is entered into the system, all related paperwork can be generated with a few clicks of the mouse. Administrators can tailor their documents even further by customizing any template within MJO. Reports are available as well. Before you are able to use this application, you must log-in with either an AKO username and password or a registered CAC. A JAGCNet account is also required. Again, all users must have JAGCNet and AKO accounts to utilize MJOnline. a. Viewing the Homepage: Go to Once logged in, look for the Military Justice link on the right hand side of the page. Once in the Military Justice section, click on MJ Online link. b. Areas of the Homepage: The screen all MJO users will be greeted with, upon their initial log-in, is the homepage. Each section of which is outlined below. Figure MJO Homepage Chapter 2 Military Justice Page 72

79 (1) The welcome box is the largest and most eye-catching part of the screen. Alongside the Army JAG regimental crest, basic information about the application can be found here. (2) The Announcements section provides a space for the Criminal Law Division to broadcast changes in policy or other vital information. This box is not tailored for each SPCMCA, meaning its content will remain the same to all users. The IT Division developers will also utilize this to post future updates to the software. (3) If users have any issues, difficulties, comments, or even general ideas pertaining to MJO, they are encouraged to submit feedback by clicking the icon in the topright. All suggestions given to the IT Division assist in making future versions of this application more useful to the entire JAG Corps. (4) Users have the option to designate up to five actions they re working on to be connected directly to the homepage ( Viewing Actions explains how). My Bookmarks showcases these. Double-click to access each entry. (5) In My SPCMCA(s), all Brigade level units accessible to the user are listed. Click the house shaped icon to set an SPCMCA as the default opening screen. Doing this brings users to their open actions with each log-in, removing the extra step of clicking the link on the homepage. This is useful for those with access to only one SPCMCA. (6) The other house shaped icon in Default Page removes this shortcut. 2. Actions: In MJO, an action includes investigations, reprimands, administrative separations, and nonjudicial punishment. This document focuses on software and will not explain the intricacies of these four terms. Users in need of a review should examine the following Army Regulations: AR 27-10, AR , AR , AR , AR , AR , and AR a. Viewing Actions: The first step in viewing actions already entered in the database, is double-clicking the appropriate SPCMCA at the title screen. A list of open actions assigned to you will load. Figure 2.1 My Open Actions Chapter 2 Military Justice Page 73

80 Users can return to the MJO homepage anytime, by clicking the application s name in the top left-hand corner of the page. Clicking the unit below that will return them to My Open Actions in their default SPCMCA. (1) Action List Options appear in the left-hand side menu. From here, users can view Open, Closed, and Other Actions assigned to them or their brigade as a whole by clicking the corresponding link. Once an option has been chosen, all related Actions will appear. Double-click to view details. (2) The Back button on the right-hand side will return you to the action list. The flag icon next to it will bookmark this action for you, making it appear in the My Bookmarks section of the homepage. This will reduce the amount of time spent hunting for particular actions that require a lot of your time. However, once again, only five actions can be linked to the homepage at a time. Once six have been chosen, the action bookmarked the longest is removed. (3) The Edit button allows users to make modifications to the action. However, the Action Type, Action Number, and Date Opened fields cannot be changed. (4) Notice the left-hand menu changes when viewing an Action. The links appearing there now all correspond to the reprimand, investigation, separation, or Article 15 being examined. A click of the mouse will take users to each of these sections. (5) It should also be noted that each section is tabbed. The amount of tabs varies, but each section will always have one unique tab along with an Audit Trail. Every time a section is changed in any particular action, that change (along with who did it and when) is recorded. This is to ensure better accountability, and will be useful for brigades with multiple Editors. b. Creating Actions: The Create New Action button appears in all screens within the Action menu. This button takes users to the New Action screen (Figure 2.2), where they specify the fundamental details of what they are about to enter into the database. Subject is simply a descriptive name for the action, in order to easily identify it later. There are no restrictions to what can be entered here. However, each SPCMCA office is encouraged to develop their own naming standard. For instance, name and rank of the accused followed by the action type. The Action Number is a computer-generated number, incapable of being edited or overwritten, that uniquely identifies this action. The Assign to/lead field allows supervisors to assign actions to a particular individual within the office. Internal and External Suspense are optional, and are used, respectively, when a suspense date has been set within the office or by an outside agency. Chapter 2 Military Justice Page 74

81 Figure 2.2 New Action Screen Throughout MJO any field marked with a red asterisk (*) is mandatory. If the user has the need to input an action quickly, they can complete only this required data. All other fields are for tracking, reporting, and statistical purposes. Each unit may want to establish local policies for these, depending on what information leadership wishes to track. For date entry fields, users have the option of typing it into the text box or clicking on the calendar looking icon next to the field, and manually choosing the date. Once the calendar appears, select the corresponding cell to rearrange the days. The month is adjusted with the single arrows (< and >), the year with the double arrows (<< and >>). Holding these items down produces a list of relevant choices. Using Figure 2.3 as an example, holding down >> will give you the ability to choose from every odd year following Today returns the calendar to the current date. Figure 2.3 The Calendar Tool With each completed section, users will need to hit the Save button and proceed by clicking the next applicable step in the Create menu. Chapter 2 Military Justice Page 75

82 If having difficulty remembering if you saved, examine the side menu. The title of each subsection that has been completed or is being worked on now is listed there. Before saving, these will appear italicized. Once saved, the font returns to normal. (1) Article 15 s: After creating the action, click Initiate Article 15. This will bring up the Create menu, which lists the different sections of information that are necessary to complete this particular action. Begin by clicking the top option, Basic Data. Without the audit trail, Basic Data has three tabs: Accused Identification, JAGC Personnel, and Chain of Command. Typing in a valid SSN will produce a pop-up screen from the HRC database with the Soldier s information. After verifying this is the correct Soldier, click the name, and the Soldier s information will appear in its respective places. As fields are entered, others are auto-populated (i.e. choosing SGT on the Rank dropdown menu makes the Pay Grade menu below it default to E-5). Figure 2.4 Basic Data There is one item that will not auto-populate, Unit of Assignment. Click the magnifying glass icon and select the appropriate unit from the pop-up. The orange X will erase your selection. Denoting the accused s unit fills out the Chain of Command tab. If it s not there, then inform the administrator. They will need to input these details into the system. If there is an Acting Commander or some other reason to change a name, simply click the orange X to clear the appropriate field. Users can also highlight and overwrite any current Commanders. Please be aware, this will change the Commander for this action only. If a Commander s name needs to be permanently changed, notify your SPCMCA Administrator. Chapter 2 Military Justice Page 76

83 Don t overlook the JAGC Personnel tab. This may not be required by MJO, but is an important step in ensuring accountability, as it identifies each professional attached to the case. Once done, hit the Save button. If relevant, fill out the Co-Accused menu. This section is nearly identical to the Accused Identification tab in the Basic Data tab. The only differences are the Date of Birth has been removed and the Remarks field has been included for any additional comments or necessary explanations. Again this section is only to be completed if pertinent to the action. Save and select the next section from the Initiate menu. The first three fields of Pay Data will be pulled directly from Basic Data. If these are blank, then chances are this information was neglected in the previous section. Go back and fill out what s missing. Users are unable to type in Rank, Pay Grade, and Pay Entry Base Date from this tab. Select Cumulative Years of Service from the dropdown menu. The Accused Monthly Basic Pay is automatically generated from the HRC database. Since this is not always up-to-date, users can overwrite this number by clicking inside the text box. Clicking Show Military Pay Table (upper right corner in Figure 2.5) will open a.pdf of the most recent pay charts to assist in reviewing the Accused Monthly Basic Pay. Save to record, and then move on. Figure 2.5 Pay Data Tab In Action Detail, either type in the date of the Most Serious Offense or use the calendar as instructed above, then specify its location with the dropdown menu. Check the related HQDA Interest Item boxes. If this action is based off of an investigation, select the Lead Investigative Agency as well. Finally, enter in any MPR or CIDC numbers by typing into the related text box and clicking the Add button. Chapter 2 Military Justice Page 77

84 Don t bother with the Save button yet. All the required information in this section is actually located in the second tab, Request Data. Figure 2.6 The Request Data Tab in Action Detail If Imposing Commander s Name and Superior Authority has only No Names Found as an option, the user has not added the Soldier s unit. Select the Initiate menu and choose Basic Data. Return once this section is complete. The Offenses section, Figure 2.7, will load. Depending on the article chosen, a qualifier may appear based on the elements of the offense. As users narrow down their options with the dropdown menus, an archetype forms in the Specification box. These model specifications were taken directly from the most recent version of the Manual for Courts-Martial. The blanks, dates, and parentheses of which must be tailored to fit the offense. Figure 2.7 Offenses Clicking the Save button takes the user to the offense list. To input another, click the Add New Offense button. If there are a large number of offenses you may have to use the arrows to navigate the list. Double-clicking a specification returns users to the corresponding offense. Chapter 2 Military Justice Page 78

85 From there, hit the Edit button to make changes, the Delete button will permanently remove the entry. Once everything is added, advance to the next section. Allied Documents is where supporting evidence is uploaded into MJO. Indicate what you are attaching with the Identify all dropdown. Then select New Attachment. A pop-up will appear with a blank field and the Browse button. Click it, select the desired file, and hit Open. The file path now appears in the text box. Back in the pop-up, choose OK, and the link will appear in a table along with the date it was added, the type of file, and its size. Essential comments should be typed in this box as well. If users are unclear on what is required here, they can click the help link on the bottom right (shown in Figure 2.8). Figure 2.8 Attaching Allied Documents Hit the Save button and you are through with the Initiate menu. It s worth noting that DA Form 2627 has been redesigned to be a two page form. Page one contains the offenses, Soldiers rights, and elections. All signatures and initials go on this page. The system will also create a punishment worksheet for Commanders to fill out and initial at the time punishment is imposed. When the action comes back to the legal office, the punishment is entered into MJO, and page two is generated with the punishment. Unless the Soldier elects to appeal, no signatures or initials are required on this second page. To begin this process, choose Templates from the Documents folder. If customizations have been made specific to a user s SPCMCA, they can access those through the Open Private Templates link in the top right. Otherwise, select the appropriate template with a click of the mouse. This will take you to the Document Generation screen. If Figure 2.9 appears, please contact an administrator to load the required ActiveX control. Chapter 2 Military Justice Page 79

86 Figure 2.9 Missing ActiveX Error Message Hit the Generate Document button below the instruction and caution messages. The completed paperwork will load into a Microsoft Word document. These forms are all customizable, although once modified the document must first be saved in Microsoft Word. Returning to MJO, notice an additional option, the Upload Attachment button, has appeared onscreen. Changes made to the text within Word will not be saved in the application. Instead a user will have to click the new button. A copy of the modified document will then be attached. This can be accessed later through the Attachments screen (under the Documents folder in the left-hand navigation menu). For now, print and distribute the Article 15 as necessary. Once the punishment worksheet is returned to the unit, it s time to fill in more information. Choose Form & Procedure from the menu, then Punishment. Specify the Punishment Imposed Date. Use the click boxes and associated fields to define any penalties. An Article 15 Maximum Punishment Chart along with a Maximum Forfeiture Chart is provided for user guidance. As options are selected, the Language of Punishment is self-populated at the bottom of the screen. Finally, use the dropdown menu to state the Filing Decision. If the Soldier elects to appeal follow the procedures below before printing, otherwise print page two and finalize the action now. Select Yes in the sole dropdown menu of the Appeal section. More fields will appear. The required ones include: Additional Matters on Appeal, JAG Review Required, and Action by Imposing Commander. Appeal Punishment is identical to the initial punishment section. However, be aware, one cannot be accessed, if the user has not first completed the other. This section is for those rare occasions when an imposing Commander takes action on an appeal, prior to it going to the superior authority for action (see AR 27-10, para 3-32). Now that the action is finalized, go back and fill out any leftover sections. In Timeline, simply complete the date entry boxes the same way you did before. If there are any explanations you wish to include in future reports, click the Remarks on Reports tab and type them in. Offenses in the Findings section default to Not Guilty. Users will have to click the words themselves to switch to Guilty. Again, these screens are for tracking and reporting purposes. Refer to local policy to determine if they are required for your jurisdiction. Chapter 2 Military Justice Page 80

87 Final Processing however, is required. Complete all fields. Take note, once the Date Matter Closed is inputted into the system, the action can no longer be edited. Utilize the Remarks section on the bottom to add any closing comments. Unlike the tab in Timeline, what s placed here will be for internal use only, and will not appear on any reports produced within MJO. After all this, hit Save. (2) Administrative Separations: As those comfortable with entering in Article 15s will begin to see, in MJO much of the functionality is the same no matter what action type is chosen. Once again, start by clicking the Initiate Menu and entering details into Basic Data. Figure 2.10, Aptitude Score, is the first screen users will not recognize from their previous orientation with Article 15s. Figure 2.10 Entering Test Results Fill in the numerical values for each line score of the ASVAB. Don t forget the Duty MOS (DMOS), or if the accused is an officer, their Branch. Notice how no field within this section is mandatory. Depending on the situation or a unit s policy, it may be possible to overlook Aptitude Score. Once in Action Details, pay careful attention to the Governing Separation Regulation dropdown. What a user selects here dictates the choices in Type of Administrative Separation. The first two options (AR and AR ) pertain to Reserve Soldiers. The third (AR ) is for officer eliminations, and the last (AR ) is for enlisted administrative separations. Specifying the Separation Authority Level will make the name of the Separation Authority appear in the box below it. Hit the Save button when through. Misconduct Description is not a place for shorthand and emoticons. The text entered here is populated, character for character, into the notification memo and the commander s report. Use accurate diction, and present the information professionally. Chapter 2 Military Justice Page 81

88 Figure 2.11 The Misconduct Description (Within MJO & the Document) As always, Timeline is an array of important dates relevant to the action. The Soldier Elections subsection is worth pointing out. Users will return to this when the elections are received, switch the, Soldier s Elections Received? dropdown to Yes, and fill out the final date entry box. For now however, generate the document (see the preceding segment on Article 15s to see how). Be sure to select the correct template, and proofread the manuscript before printing and distributing. It is the editor s responsibility to ensure all documents are appropriate for use. After the forms have been returned, users will then need to go through the Form & Procedure sections. As in all other actions, completing the Date Matter Closed field prevents users from adding any additional information or modifying what is already there. (3) Investigations: Currently, investigations in MJO serve as only a placeholder. If a CID or MP report is pending action, users have the option of inputting it into the system for records and reports. Expect more functionality in future updates. Begin with Basic Data. If necessary, fill out Co-Accused. Enter any known fields in the following screen, Investigation Info. Again, to add relevant MPR or CIDC numbers type into the correlating text box and click Add. Type a synopsis in the Descriptive Investigative Data tab, including all charges, name of the accused, and time and place of the alleged incident. In Final Processing, specify the Command Action. Note, choosing No Action Taken produces a second dropdown menu for users to include the reasoning behind this decision. If further explanation is required, utilize the space for Remarks. Chapter 2 Military Justice Page 82

89 Figure 2.12 Investigation Info When through, input the Date Matter Closed, and hit the Save button. (4) Reprimands: Input Basic Data, Co-Accused, and Action Details as illustrated above. Essence of Misconduct is another section that requires a summary. Detail the basis for reprimand with specific facts. What is typed here will be included in the first paragraph of all Letters of Reprimand produced from this action. Figure 2.13 Entering Essence of Misconduct Click the Save button upon completion, then you can generate the documents and distribute as necessary. Besides the first, all of the dates in Timeline can only be filled out after receiving the Soldiers elections. The remaining sections, Filing Decision and Final Processing, will have to wait until after the Reprimand has been distributed. As always, indicate the Date Matter Closed prevents any future additions or alterations. Chapter 2 Military Justice Page 83

90 NOTE - Courts-Martial will be added to MJO soon. 3. Reports: The data stored in MJO is accessible to all users through the application s report capabilities. These features can be accessed anywhere, by clicking the corresponding tab in the left-hand side menu. Figure 3.1 The Reports Menu a. Generating Reports: (1) The first step is to select the action type you want details on from the Reports menu (Figure 3.1). Subsequently, use the filters to establish the parameters of the report. Each action has the same filters. These include: Name, Rank, Unit of Assignment, Article of Offense, and Assigned to/lead. Figure 3.2 Defining the Filters Chapter 2 Military Justice Page 84

91 Note that the Unit of Assignment is the only mandatory field. Without this detail, the application will refuse to produce a report. (2) Indicate the format with the radio buttons at the bottom. After all specified, click the Run Report button. Users selecting Microsoft Excel will have to click Open in the File Download box. If a warning message appears, select Yes to open the file regardless. Depending on the connection, it may take a minute or two for the report to load. b. Editing Reports: (1) Modifications can be made to reports only if they are generated in Excel. Users will be unable to even click the cells in Adobe Reader. So make sure to select the correct radio button in the Filters tab. Figure 3.3 Editing Reports in Microsoft Excel (2) As soon as the report appears, it can be edited as a standard.xls file. Add charts. Rearrange the data. Change the font, borders, and background colors to accommodate local policy. I f a row or column is irrelevant, delete it. (3) Save the report locally by clicking File or the Office Button if you are using Office 2007, then Save As. If you simply hit the Save button will result in another pop-up. Hit the X, then Cancel to remove it. NOTE The actions generated and tracked through MJO will automatically be transferred to generate your MJR (Military Justice Report formally the JAG-2). MJO Users Manual Reference Chapter 2 Military Justice Page 85

92 Performance Measure: Take the written test below. 1. What is Military Justice Online? 2. What accounts are needed to access Military Justice Online? 3. What type(s) of actions are you capable of performing with Military Justice Online? 4. How many actions are you able to connect to your homepage? See Appendix B-1 for the answers to this exercise. Chapter 2 Military Justice Page 86

93 Employ the Manual for Courts-Martial (MCM) Condition: You are a Paralegal working in a Criminal Law Office and you are given a task that involves using the Manual for Courts-Martial (MCM). You need to become familiar with the MCM so you can use it to perform your daily tasks. You have access to the MCM. Performance Steps: 1. History of the MCM. The two primary sources contained within the MCM are the United States Constitution and the Uniform Code of Military Justice (UCMJ). a. The initial source of military law is the Constitution. Article I, Section 8, of the Constitution provides Congress with the power to provide for the common defense and general welfare of the United States. More specifically, Section 8 provides Congress with the power to make rules for the Government and regulation of the land and naval forces. b. As you learn about the MCM, you will see that many other provisions of the Constitution, especially those contained in the Bill of Rights, are also important to military law. An example of the privilege against self-incrimination is provided by the Fifth Amendment to the Constitution. This same privilege is provided in Military Rule of Evidence 301. These provisions apply to persons serving in the Armed Forces as well as to persons subject to federal and state laws. 2. The Uniformed Code of Military Justice (UCMJ). a. In 1951, by authority of Article 1, Section 8, Congress enacted the UCMJ. The UCMJ is a body of criminal law. It defines a system of justice specifically designed to meet the specific needs of a specific group. Examples of this are the legal systems of individual states, counties, or cities. The UCMJ, among other legal documents, defines the types of conduct that are crimes in the military. b. Furthermore, the UCMJ defines the military court system and the correct procedures for the administration of military justice. The two important goals achieved by the UCMJ are: (1) Uniformity of law for all services; and misconduct. (2) Statutory protection of the rights of those accused of criminal 3. Part I Preamble. a. Sources of military jurisdiction: (1) The Constitution. Chapter 2 Military Justice Page 87

94 (2) International Law. b. Exercise of military jurisdiction. (1) Military jurisdiction is exercised by: (a) Military law; a Government in the exercise of that branch of the municipal law which regulates its military establishment. (b) Martial law; a Government temporarily governing the civil population within its territory or a portion of its territory through military forces as necessity may require. (c) Military Government; a belligerent occupying enemy territory, and; (d) A Government with respect to offenses against the law of war. include: (2) Agencies. The agencies through which military jurisdiction is exercised (a) Courts-martial for the trial of offenses against military law and, in the case of General Courts-Martial, of persons who by the law of war are subject to trial by military tribunals. (b) Military commissions and provost courts for the trial of cases within their respective jurisdictions. Subject to any applicable rule of international law or to any regulations prescribed by the President or by other competent authority, military commissions and provost courts shall be guided by the appropriate principles of law and rules of procedures and evidence prescribed for courts-martial. NOTE - An example of this would be: The United States Military Commissions Act of 2006 was an Act of Congress signed by President George W. Bush on 17 October It was drafted in the wake of the Supreme Court s decision on Hamden v. Rumsfeld; the Act s stated purpose was To authorize trial by military commission for violations of the law of war, and for other purposes. It established procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission. (c) Courts of inquiry for the investigation of any matter referred to such court by competent authority. Article 15, UCMJ. (d) Nonjudicial punishment proceedings of a Commander under Chapter 2 Military Justice Page 88

95 c. Nature and purpose of military law. (1) Military law consists of the statutes governing the military establishment and the regulations issued thereunder, the constitutional powers of the President and the regulations issued thereunder, and the inherent authority of military Commanders. (2) 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. d. Structure and application of the Manual for Courts-Martial. The Manual consists of the following sections: (1) Part I - Preamble (2) Part II - Rules for Courts-Martial (3) Part III - Military Rules of Evidence (4) Part IV - Punitive Articles (5) Part V - Nonjudicial Punishment Procedures 4. Part II - Rules for Courts-Martial. a. The Rules for Courts-Martial: (1) Generally, these rules govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities (See R.C.M. 101). Punishments for specific offenses contained in the punitive articles of Part IV, MCM. (2) Title These rules are known and cited as the Rules for Courts-Martial (R.C.M.). (See R.C.M. 101). (3) Purpose These rules are intended to provide for the just determination of every proceeding relating to trial by court-martial. (See R.C.M. 102) (4) Construction These rules are construed to secure simplicity of procedure, fairness in administration, and the elimination of unjustifiable expense and delay. (5) Part II of the MCM consists of 127 rules organized into 13 chapters: (a) Chapter I. General Provisions. Rules Chapter 2 Military Justice Page 89

96 (b) Chapter II. Jurisdiction. Rules (c) Chapter III. Initiation of Charges; Apprehension; Pre-Trial Restraint; Related Matters. Rules (d) Chapter IV. Forwarding and Disposition of Charges. Rules 401- (e) Chapter V. Court-Martial Composition and Personnel; Convening Courts-Martial. Rules (f) Chapter VI. Referral; Service; Amendment, and Withdrawal of Charges. Rules (g) Chapter VII. Pre-Trial Matters. Rules (h) Chapter VIII. Trial Procedure Generally. Rules (i) Chapter IX. Trial Procedures Through Findings. Rules (j) Chapter X. Sentencing. Rules (k) Chapter XI. Post-Trial Procedure. Rules (l) Chapter XII. Appeals and Review. Rules (m) Chapter XIII. Summary Court-Martial. Rules NOTE - The following rules are most commonly used and most important rules for a Paralegal. R.C.M. 101 Scope, title Explains that the Rules for Courts-Martial are known and cited as (R.C.M.). Additionally, this rule governs the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities. R.C.M. 304 Pre-trial restraint This R.C.M. discusses the types of pre-trial restraint, upon, and imposition of restraint. Pre-trial restraint is moral or physical restraint on a person s liberty which is imposed before and during disposition of offenses. Pre-trial restraint may consist of conditions on liberty, restriction in lieu of arrest, arrest, or confinement. R.C.M. 307 Preferral of charges This R.C.M. discusses who may prefer charges; how charges are preferred; and how to allege offenses. R.C.M. 405 Pre-trial investigation This R.C.M. sets the foundation for when an Article 32 is required and the ground rules of an Article 32 investigation. R.C.M Punishments The punishments authorized by this rule may be adjudged in the case of any person found guilty of an offense by a court-martial. R.C.M Matters submitted by the accused This R.C.M. discusses the rules for which an accused can submit matters to the convening authority. Chapter 2 Military Justice Page 90

97 R.C.M Recommendation of the staff judge advocate or legal officer Before a convening authority takes action, the staff judge advocate or legal officer will forward a recommendation under this rule. R.C.M Summary courts-martial generally This R.C.M. discusses the structure and rules of a summary court-martial. 5. Part III Military Rules of Evidence. a. Applicability These rules are applicable in courts-martial, including summary court-martial, to the extent and with the exception stated in Military Rules of Evidence 1101d. (See M.R.E. 101 and then see M.R.E. 1101) (1) M.R.E. 1101(a) Rules applicable. Except as otherwise provided in the MCM, these rules apply generally to all courts-martial, including summary court-martial; to proceedings pursuant to Article 39(a); to limited fact finding proceedings ordered on review; to proceedings in revision; and to contempt proceedings except those in which the judge may act summarily. (2) M.R.E (b) Rules of privilege. The rules with respect to privileges in Section III and V apply to all stages of all actions, cases, and proceedings. (3) M.R.E (c) Rules relaxed. The application of these rules may be relaxed in sentencing proceedings as provided under R.C.M and otherwise as provided by the MCM. (4) M.R.E (d) Rules inapplicable. These rules (other than with respect to privileges and M.R.E. 412) do not apply: (a) Investigative hearings pursuant to Article 32. Article 72, UCMJ. (b) Proceedings for vacation of suspension of sentence pursuant to (c) Proceedings for search authorizations. (d) Proceedings involving pre-trial restraint. (e) Other proceedings authorized under the code of this manual and not listed in subdivision (a). b. Purpose and Construction These rules are constructed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justify determined. Chapter 2 Military Justice Page 91

98 c. Part III of the MCM consists of 92 rules that guide the introduction of evidence. (1) Section I. General Provisions. Rules (2) Section II. Judicial Notice. Rules A. (3) Section III. Exclusionary Rules and Related Matters Concerning Self- Incrimination, Search and Seizure, and Eyewitness Identification. Rules , , and 321. (4) Section IV. Relevancy and its Limits. Rules (5) Section V. Privileges. Rules (6) Section VI. Witnesses. Rules (7) Section VII. Opinions and Expert Testimony. Rules (8) Section VIII. Hearsay. Rules (9) Section IX. Authentication and Identification. Rules (10) Section X. Contents of Writings, Recordings, and Photographs. Rules (11) Section XI. Miscellaneous Rules. Rules NOTE - The following rules are most used and important rules for a Paralegal. M.R.E. 101 Scope Explains that the Military Rules of Evidence are applicable in courts-martial. M.R.E. 314 Searches not requiring probable cause Discusses the various searches which do not require probable cause and sets forth the rules for admissibility as trial. M.R.E. 321 Eyewitness identification Discusses the various types of eyewitness identification and the admissibility of testimony from eyewitnesses. 6. Part IV Punitive Articles: Part IV of the Manual for Courts-Martial describes punishable offenses. It consists of 60 punitive articles, plus Articles 77 and 79. Article 77 describes the principles, or persons, punishable under articles. Article 79 describes lesser crimes which may be punishable. Article 134 has unenumerated offenses listed in alphabetical order. Each of the punitive articles, beginning with paragraph 2, Article 78, is carefully organized into the following format: a. Text Gives a description of the offense (para a). b. Elements Elements of proof that must be met to charge someone with an offense (para b). Chapter 2 Military Justice Page 92

99 c. Explanation Explains terms used in the elements (para c). d. Lesser included offenses Offenses that are closely related to the alleged offense but may be of a less serious nature (para d). e. Maximum punishment This indicates the maximum punishment that may be adjudged by a court-martial if the accused is found guilty (para e). f. Sample Specifications Specification used to allege an offense. 7. Part V Nonjudicial Punishment. a. Article 15 of the Uniform Code of Military Justice authorizes nonjudicial punishment. Nonjudicial punishment is more serious that administrative corrective measures but less serious than trial by court-martial. Administrative corrective measures include: (1) Counseling (2) Admonitions (warnings) (3) Reprimands b. Nonjudicial punishment provides Commanders with a prompt means of administering punishments for minor offenses. Normally, Commanders are able to maintain good order and discipline through effective leadership and, when necessary, administrative corrective measures. However, the nature of the minor offense or individual s record may indicate a need for stronger measures. At the same time, a courtmartial may be too severe. Nonjudicial punishment functions to promote positive behavior changes in Soldiers without the stigma of a court-martial conviction. 8. Additional Sections of the MCM: The additional sections of the MCM are as follows: a. Contents. The contents lists subject matters by titles, or headings, in the same order in which they appear in the text. Along with the title, the Contents also indicates the section in which the item appears. For example, the Preamble is listed as Part I. The Contents also lists the page number for each item and the applicable paragraph(s) or subparagraph(s). b. Appendices. The 27 appendices appear in the pages immediately preceding the Index and provide additional or supplementary material. Refer to the appendices in your MCM. Appendix 1 contains the Constitution of the United States. The Constitution is included in the MCM because understanding the Constitution is important to having a full understanding for the MCM. The Constitution forms the very foundation on which military justice is built. Refer to and read all of Appendix 1, Constitution of the United States Chapter 2 Military Justice Page 93

100 c. Index. The Index provides an alphabetical listing of subjects in the MCM. Like the Contents, the Index provides a page number and the name of the section of the MCM in which the information is located. 9. Format and Researching of the MCM. a. Format of the MCM - Information research using the MCM As you can see, the MCM contains a lot of information. As you practice researching information in the MCM, you will find that information is logically organized. You will also find that you can locate the information you need easily and quickly. Refer to the MCM. Notice the format of the Contents, the Index, and the text itself. Pay special attention to: (1) How the format is sectioned into chapters, paragraphs, and appendices. Look at the Contents and attempt to identify the logical organization of the material from pre-trial through post-trial rules and procedures. (2) How the entire MCM is paginated. Look for the page and paragraph numbers on each page. Notice the guide notations in the upper right hand corner of the odd-numbered pages and the upper left hand corner of the even-numbered pages. These notations provide quick reference to the material contained on those particular pages. b. Research Using the Contents - Suppose that your Commander decided to withdraw the charge(s) on a Soldier. You must find the information on the proper procedure to follow. Refer to your MCM. (1) First, turn to the front of the MCM and scan the Contents. In scanning for information on the withdrawal of charges, look for titles that might include this area of information. (2) As you can see, Rule 604, Withdrawal of Charges, will likely provide the information you will need. The page number refers to Part II of the MCM. Turn to that page and read the text to see if it is applicable to your situation. (3) The proper citation for this paragraph is R.C.M. 604(a). c. Research using the Index - You can find the same information by referring to the Index. Using the Index, look for key word, Withdrawal. withdrawal. (1) Notice that it lists various aspects of the more general concept of (a) Authority to. (b) Effect of. (c) Generally. Chapter 2 Military Justice Page 94

101 (2) At times, you may find a topic in the Index that refers to more than one page as shown under the topic, withdrawal. Scan all pages before you conclude that you have all of the information you need. An oversight could result in an incorrect decision on the part of your Commander. The incorrect decision could unjustly destroy the career of a Soldier being tried. d. The Three-Step Process The simple three-step process to researching information in the MCM is as follows: (1) KNOW First, you must know what you are looking for. Key Words help the user identify the subject of an alleged offense. Index. (2) FIND Next, using Key Words find the subject in the Contents of the (3) TURN Finally, turn to the appropriate page(s) in the MCM for the information you need. MCM Reference Chapter 2 Military Justice Page 95

102 Performance Measure: Take the written test below. 1. In which subparagraph of each punitive article (i.e. a, b, c, d, e, or f) are the elements on the offense listed? 2. Which Rule for Courts-Martial (R.C.M.) discusses who may order pre-trial restraint? 3. On what page would you find the maximum punishment for willingly disobeying a lawful order of a noncommissioned officer? (NOTE: There is more than one cite. You only need to identify one). 4. Which R.C.M. identifies the different types of pre-trial restraint? 5. On what page of the MCM does the punitive articles section begin? 6. Which Appendix outlines Forms and Findings? 7. Which R.C.M. offers a discussion about who may prefer court-martial charges? 8. Which R.C.M. defines Capital Offense? 9. Article 77, UCMJ, does not define an offense. According to the MCM, what is the purpose of Article 77, UCMJ? 10. Which Military Rule of Evidence (M.R.E.) offers a discussion on a Commander having the power to authorize a probable cause search? See Appendix B-2 for the answers to this exercise. Chapter 2 Military Justice Page 96

103 Prepare a Military Justice Report (MJR) Condition: You are a Brigade Paralegal NCOIC and it is the first day of a new month. You have maintained statistics of the Brigade s legal actions throughout the month and now it is time to prepare the end of month Military Justice Report (MJR). NOTE Soon, the MJR will automatically be prepared through MJO. MJO will prepare your MJR using all of the actions that are being tracked through MJO. It is always a good idea to maintain your own numbers in case there are any problems with either system, but you must ensure that you are using MJO to create and track your actions. For more information about MJO and the MJR, please contact ITD at OTJAG. Performance Steps: 1. The report will be prepared monthly and will include: a. Total nonjudicial punishments (formal and summarized) during the month. b. Total SCMs reviewed under Article 64, UCMJ, during the month. c. Processing time for SCMs and SPCMs (non-bcd). d. Civilian felony convictions. e. Total number of chapter 10s approved in all courts-martial cases. f. If a GCM jurisdiction is dissolved, unless the records are transferred to the OSJA of another GCM jurisdiction, the report will include data up to the date of dissolution. 2. Authorized Users. a. All individuals involved in the MJR reporting process may use this system. The online MJR report system is designed to facilitate the reporting process by offering online creation, modification, submittal, and rollup of MJR reports from the Battalion level to the Headquarters level. Also, all authorized users may view approved reports submitted by SJA offices and generate consolidated reports for various time periods for a single GCM jurisdiction or for all jurisdictions. b. Reserve unit personnel, please note: The U.S. Army Reserve Legal Command is placed at the GCM level in this system to facilitate consolidated reporting of Reserve statistics. All other Reserve units, including GCM-level Reserve units, are placed at the Brigade and Battalion levels, so some of the terminology used in this system may not be directly applicable to you. Chapter 2 Military Justice Page 97

104 3. Gaining Access. a. Log into JAGCNet at and click on the JAGC Applications Portal on the page. Once on that page, click on the MJ Reports icon. b. First time users: (1) First-time users below the GCM jurisdiction level (Brigade, Battalion, or similar level), contact your Brigade Paralegal NCOIC or installation SJA office for an account. (2) First-time GCM-level users in Army Reserve units, contact the U.S. Army Reserve Legal Command for an account. (3) First-time GCM-level users in Regular units, click the link Request Access on the login page of the MJ Reports website. You will be presented with a form where you are requested to provide necessary information to assist the Office of the Clerk of Court, Army Court of Criminal Appeals, in determining your eligibility. Be sure to select the correct level of access that you require. c. Creating an account. (1) All fields are required except the remarks field. This field is required only if you are replacing a previous MJR account holder. In this case, please indicate the name of the individual that you are replacing in order for system administrators to best manage system accounts. (a) Approval Authority Each GCM jurisdiction requires at least one approval authority. This person may approve, create, modify, and view MJR reports for their jurisdiction as well as view approved reports for all jurisdictions. (b) Report Editor This person may create, modify, and view MJR reports for their jurisdictions as well as view approved reports for all jurisdictions. A Report Editor cannot approve MJR reports. (c) Report Reader This person may view approved reports for all jurisdictions. Since this capability is also included in the Approval Authority and Report Editor levels, this type of access will normally be reserved for users at the GCM or higher level. A Report Reader cannot approve, create, modify, or view unapproved reports. (2) After filling in all of the requisite information, click the Submit Request button. This will automatically format and send an message to the Clerk of Court s office. In order for the message to properly transmit, you must have an active internet connection. If you do not, please fax your information to the Clerk of Court s office. Alternatively, you can formulate your own message provided the information you supply matches that on the access request form of the website. Chapter 2 Military Justice Page 98

105 (3) Once you are confirmed by the Clerk of Court personnel, you will be notified by . Confirmation of access, to include User ID and password, will be forwarded to the address provided in the request form. This may require as long as 48 hours to confirm depending on when the request is received by the Clerk of Court s office. You will receive an answer to your request as soon as feasibly possible. User ID s and passwords are not case sensitive. 4. Entering MJR Reports. a. Once you have your account established, enter your User ID and password in the fields provided on the first page of the website. Upon successful login, you will be presented with a list of actions that you may perform. To create, edit, or approve a report, click MJR Editor. b. Select the month and year of the target report. If no previous report exists, you will see a blank form ready for data input with the heading New Report. If a report has been previously submitted, it will be displayed with the heading Report Modification. [GCM level only: Once the approval authority for your jurisdiction has approved the report, it will be displayed in read-only mode with the heading Locked: No Changes Allowed. Only the Office of the Clerk of Court can unlock approved reports for further editing.] c. The presented form is a representation of a DA Form This onscreen form allows you to enter all of the raw data required to create the totals. The total fields themselves are automatically calculated based on the detail information you enter. You may enter data in all fields identified with a blue font. All fields of this form, which are in red, are automatically calculated and will not accept input from the keyboard except as a result of calculating entries of blue fields. NOTE By the time this manual is released, or shortly after, the MJR will be automatically created through MJO with the actions you have prepared and are tracking. You will not be able to adjust your numbers based on what you have done without the use of MJO. Ensure that all levels are using MJO so the monthly MJR s are accurate. d. Heading information is generated automatically and may not be modified. The Report Reader field reflects the selected month and year. The Report Date field shows the current date in the case of a new report and the date last submitted in the case of a previously submitted report. The Report Control Number is generated based upon the jurisdiction code and report period. At the bottom of the form are blocks for the approving authority s and the preparer s name, grade, and title. When you prepare a new report, these blocks will contain what was entered for the previous month. If no report is found for the previous month, these blocks will default to Not Specified. Please edit before submitting the report. Chapter 2 Military Justice Page 99

106 e. When entering a new report or editing an existing report, you will see a button at the bottom of the form. For Report Editors, this button will be labeled Submit Report. When you click this button, the report will be inserted into the database. It will not be viewable by persons from other jurisdictions, nor will it be included in any rollup or summary reports, until the Approving Authority has approved it. For Approving Authorities, the button will be labeled Approve & Lock Report. When you click this button, the report will be inserted into the database and will be locked to prevent further editing. f. Navigate through the form in the following manner: (1) Move Forward/Down TAB Or use the mouse to position cursor. (2) Move Back/Up SHIFT-TAB Or use the mouse to position cursor. (3) Discard Changes CANCEL Click Cancel. g. When entering data into numeric fields, be sure to enter only numeric data. If characters other than data are entered, you will be asked to correct the problem. Also, do not begin working on a report and then walk away without submitting it. There is a 30- minute timeout period after which you will be required to login again. If this occurs after you have begun editing a report, your changes will be discarded. 5. Status Report Click on the Status Report button on the main screen for a quick summary of your submittals from October 1998 to present. All final reports will be listed with a green background. Draft reports will be shown with a yellow background; you should review and approve these as soon as possible. Any missing reports will be shown with a red background; please submit and approve these reports. 6. Managing Subordinate Office Reports. a. The MJR Report System supports three levels of reporting. These are the GCM jurisdiction level, the Brigade (or equivalent) level, and the Battalion (or equivalent) level. This setup permits online submittal and rollup of monthly MJR reports from the Battalion level through the HQDA level. Management of organization and user accounts at the Brigade and Battalion level is a local responsibility. Implementation of online Brigade and Battalion level reporting is entirely at the discretion of local personnel. b. There are three buttons on the homepage screen that provide access to these management functions. They are the following: (1) Organization Manager The first step in setting up a local reporting structure is to create organization accounts for your subordinate offices. Click the Organization Manager button. On the subsequent screen, you may add, edit, or delete organization accounts. To add an account, enter a three-letter designation and a description and click Add. Users at the GCM-level and above may click the List All Organizations button to see a read-only list of all local organizations. Chapter 2 Military Justice Page 100

107 (2) Account Manager The next step is to create user accounts for personnel at your subordinate offices. Click the Account Manager button. On the subsequent screen, you may add, edit, or delete user accounts. To add an account, first enter a User ID of up to 15 characters. This field is not case-sensitive. The system will not permit duplicate User IDs, so establish a standard format that will help ensure uniqueness (such as last name, first initial, and middle initial followed by a number if needed). A password is randomly generated and may not be changed once the account is created, but you may refresh the screen during account creation to start over with a different password. Enter the user s name, select the desired organization from the drop-down menu, and optionally enter an address and phone number. When you ve entered all of the information, click Add. Users at the GCM-level and above may click the List All Accounts button to see a read-only list of all local user accounts. NOTE User s passwords do not appear on the Account Manager screen, but you may view a user s password by selecting the Edit link next to the User ID. (3) MJR Manager Once you have created organization and user accounts for your subordinate offices, they will be able to create MJR reports online. As subordinate offices submit their reports, the reports will appear on your MJR Manager screen. If you have created a report for this period, your report will also be listed on this screen. You may edit a report by clicking Edit on the appropriate line. When your subordinate organizations have finalized their reports, click the Combine All Reports button on the MJR Manager screen. This will roll up all of the listed feeder reports to create a consolidated report which may edit and submit as your own report. If you have already created a report for the selected month, you will have the option to add the feeder reports to your existing report or to overwrite your existing report. [GCM level only: You may add to or overwrite a locked report. If you have already approved a report for the selected month, you will be notified that the operation is not permitted.] Users at the GCM-level and above may click the Show All Reports button to include lower-level reports in the list. These reports may be viewed but not modified. 7. Viewing MJR Reports. a. You may view approved reports for any GCM jurisdiction by clicking the Report Reader button. A GCM Jurisdiction Selection screen will be shown which lists all jurisdictions (users with Report Reader access will be presented with this screen immediately after logging in). To view GCM reports, click the GCM Reports button. To return to the GCM Jurisdiction Selection screen, click the GCM Reports button. After selecting a jurisdiction, you will be given the opportunity to specify a report period and type. All reports generated from the Report Reader screens will be in read-only mode; modification of the data is not permitted. b. You may specify a report date range by selecting a month and year for both the beginning date and ending date (inclusive). Or, you may view a single monthly report by setting the beginning date to the desired month and year and leaving the ending blank. You may also select the type of report desired. Chapter 2 Military Justice Page 101

108 c. Selecting the Rollup report type will generate a report using the DA Form 3169 format. If a report date range was specified, this form will total (or average, where appropriate) all of the statistics contained in the rolled up reports. If a date range was not specified, the selected monthly report will be presented. d. Selecting the Summary report type will generate a listing of all reports for the selected jurisdiction that fall within the report date range. You must specify both a beginning date and an ending date for GCM reports. This report will list each monthly report that matches the selection criteria, and will total (or average) the fields presented. 8. Approval Authority Each GCM office must have at least one approval authority (normally the SJA). This person may request an account with approval authority for their jurisdiction by filling out the Access Request form and selecting Approval Authority level access. Other persons at the same GCM office may request Report Editor access by filling out the Access Request form and selecting Report Editor level access. When the Report Editor creates and submits a new report, its status will be Open. At this point, the only persons who can see the report will be those with Approval Authority of Report Editor access for that jurisdiction. To approve the report, the Approval Authority must open the report and click the Approve & Lock Report button. At this point, the report will be locked. Once locked, a report cannot be edited by anyone (including the Approval Authority ). Also, once locked, a report is considered to be final and so may be viewed by all users of the system and will be included in any Rollup or Summary reports to which it pertains. 9. Browser Issues. a. Do not use the browser s Back and Forward buttons for navigation within the MJR Reporting System. The navigation buttons provided within the system have programming code behind them. Bypassing these buttons may produce unpredictable results. b. This online application requires the use of Microsoft Internet Explorer, version 4.0 or higher. The version of Internet Explorer that you are using, and the options that you have specified within it, will make differences in the appearance and functionality of this application. For example, when you are completing an online DA Form 3169, tabbing between cells should highlight the value within the target cell. If you tab to a cell containing a zero and enter a number, the number should replace the zero. If, instead, the number that you entered is inserted before the zero, upgrading your browser should fix the problem. If you are using the mouse rather than the tab key to move between cells, you will have to highlight the cell s value with the mouse. Upgrading your browser will not change that. If you would like to download the latest version of Internet Explorer, follow this link to the Microsoft Internet Explorer website. Chapter 2 Military Justice Page 102

109 c. Online reports were designed to facilitate printing. However, differences in browser versions and options make a difference in both online and printed appearance. For best results, you may need to adjust the print margins specified in your browser settings. Try setting the left margin to 0.75 and the right margin to JAGCNet MJR Application AR MJO References Performance Measures: 1. Who may use the MJ Reporting System? 2. How do you access the MJ Reporting System online? 3. How many Approval Authority s will each GCM jurisdiction have? 4. How many levels does the MJ Reporting System support? 5. Which Back and Forward buttons should you use to navigate through the MJR Reporting System See Appendix B-3 for the answers to this exercise. Chapter 2 Military Justice Page 103

110 SECTION II: Nonjudicial Punishment Prepare, Process, and Review a Record of Summarized Proceedings under Article 15, UCMJ Condition: You are a Battalion Paralegal. A Soldier in your Battalion has just violated a punitive article of the UCMJ. The Soldiers Company Commander wants to send his unit a message by performing swift justice on this Soldier. The Commander has asked you to prepare a Summarized Article 15 for their signature. You have access to AR and the MCM. NOTE - If you have a computer with internet connection, you MUST use MJOnline!! The steps below are for using the new DA Form that is generated by MJOnline. A copy of this form can be saved to your computer and used off line. When using MJOnline you still need to ensure that the document generated by MJO is correct and free of errors. You will also be able to tailor the document to your units standards. NOTE - A Summarized Article 15 may also be prepared and completed by a unit Commander. The DA Form that is produced by MJO is slightly different from the form the Commander may receive from the Army Publishing Division (APD ( The DA Form provided by APD is CAC enabled and may also be used. Check with your local installation/division level Criminal Law Office for further guidance. Performance Steps: 1. Review the file to ensure that a violation of the UCMJ has been committed and that the Commander has Article 15 authority over the offense and accused IAW the MCM and AR 27-10, Chapter Enter the following information in the appropriate blocks of the heading of the DA Form : a. Enter the accused's verified last name, first name, middle initial and abbreviated rank (LAST, First M., RNK). b. Enter the accused s full SSN. c. Enter the abbreviated unit (include at least two elements of the unit, station and ZIP Code or APO). 3. ITEM 1 - Enter each offense by stating the specific violation of the UCMJ along with the Article of the UCMJ violated. Prepare each offense statement in the second person - past tense, using sample specifications from Part IV, MCM (you did). 4. ITEM 3 Enter the imposing Commander s full name, rank and abbreviated unit (FIRST M. LAST, RNK, Co, Bn). Chapter 2 Military Justice Page 104

111 5. ITEM 4 Enter the Soldiers full name and rank (FIRST M. LAST, RNK). 6. ITEM 7 List supporting (allied) documents and ethnic and gender data (e.g., "W/M" means white male and should be entered along the right hand margin). Forward the DA Form with allied documents to the Commander for imposition. Allied data could include but is not limited to counseling statements, sworn statements, MP reports, enlisted record briefs (ERB), and written statements from the Soldier. Block 7 can also be used to continue a specification from ITEM 1 if necessary and would be more appropriate than using a continuation sheet. Enter the gender data along the right margin and allied documents to the left margin. NOTE - Ensure the Commander has a copy of Appendix B, Suggested Guide for Conduct of Nonjudicial Punishment Proceedings (AR 27-10), and knows the maximum punishments that they may impose under Article 15, UCMJ. It is common practice to prepare a punishment worksheet to include with the Article 15 packet which allows the imposing Commander to easily select appropriate punishments. 7. Destroy the DA Form if the Commander has decided not to impose punishment or, if applicable, ensure the Commander has lined out offense(s) which they have determined the Soldier did not commit. NOTE - Ensure the Commander affords the Soldier the opportunity to take 24 hours to make a decision regarding their rights before they move to impose punishment of this action. If the Soldier demands trial by court-martial these proceedings are stopped and you should contact your Trial Counsel immediately. 8. ITEM 2 Ensure the Commander has initialed the appropriate block regarding guilt and then hand writes in the punishment(s) in the spaces provided. NOTE - A punishment worksheet may also be inserted into the Summarized Article 15 packet for the Commander to fill out instead of hand writing in the punishment(s). If a punishment worksheet is used, the Paralegal will ensure the punishment(s) is/are annotated on the DA Form ITEM 3 Ensure the Commander has initialed the appropriate block regarding the appeal and then dates and signs in the appropriate spaces. 10. ITEM 4 Ensure the Soldier has initialed the appropriate block regarding their appeal choice and then dates and signs in the appropriate spaces. NOTE - If the Soldier does not appeal or fails to make an appeal decision within a reasonable amount of time, proceed to Performance Step 14. If the Soldier appeals punishment, proceed with the next Performance Measure. 11. Attach and annotate in ITEM 7 any written matters submitted by the Soldier in appeal and the imposing Commander's rebuttal, if applicable. 12. ITEM 5 Enter the superior Commander s full name, rank and abbreviated unit (FIRST M. LAST, RNK, Bn). Only one element of the command is required. Chapter 2 Military Justice Page 105

112 13. ITEM 5 - Enter the superior Commander's action on appeal, if any, and ensure the Commander has initialed the appropriate block. NOTE - If the Soldier wishes to withdraw their appeal, enter in Item 7 "In view of the action taken, I voluntarily withdraw my appeal, followed by the Soldiers signature. 14. ITEM 6 - Ensure the Soldier signed and dated the appropriate blocks after the appellate authority has taken action on the appeal. 15. ITEM 7 - Enter the following, if applicable: a. List of allied documents (e.g., continuation sheets, documents supporting charges, documents submitted by the Soldier during proceedings, documents submitted by the Soldier in appeal, Commander's rebuttal to appeal). NOTE A Flag is not mandatory for completion of a Summarized Article 15. However, if the Soldier is flagged ensure a copy of the Flag documentation is attached to the action. b. When one continuation sheet is used, enter "Continuation Sheet" in ITEM 7. When more than one continuation sheet is used, enter "Continuation Sheets (x)" where "x" is the number of sheets used. c. Events not cited elsewhere, such as action on appeal by imposing Commander. NOTE - ITEM 7 can also be used to continue other items on the form. However, because of limited space, this is normally done using continuation sheets (See Performance Measure 16). 16. Continue an item, if necessary, by entering in the item ("SEE CONTINUATION SHEET "). Prepare the continuation sheet on plain bond paper in the same number of copies as the DA Form using the following format: a. Enter on the eighth (8) line from top of page on the left margin "DA Form , (Last Name), (First Name) (MI), (RANK), (SSN), (Unit), (Installation), (state abbreviation), and (zip code). EXAMPLE: DA Form , LAST, First M., RNK, , Co, Bn, Installation, ST b. Skip a line and enter "Item x, continued:" c. Skip another line and continue the item. d. Use the same left and right margins as on DA Form e. Number pages of continuation sheets approximately one inch and centered from the bottom of the page IAW AR For example, the first continuation sheet used would be numbered as page 2, the second page as page 3, etc. Chapter 2 Military Justice Page 106

113 NOTE - The format of continuation sheets as shown for DA Form is consistent with the format used with other forms, such as DD Form 457 (Investigating Officer's Report), DD Form 458 (Charge Sheet), and DD Form 2329 (Record of Trial by Summary Court-Martial). 17. Ensure the original file is maintained locally in the unit s nonjudicial punishment file (file number 27-10f). Ensure that the form is destroyed at the end of two years from the date of imposition of the punishment, or upon the Soldier s transfer from the unit, whichever occurs first. A copy will be provided to the Soldier if a request is submitted during the filing period. The DA is not filed in the Soldier s Official Military Personnel File (OMPF). NOTE - It is common practice for the Brigade legal office to maintain all Article 15 files centrally, to include summarized proceedings. It makes it easier to compile monthly reporting statistics (MJR). See Performance Step 18 for statistical data. 18. Maintain statistical data IAW AR 27-10, Chapter 15. MCM AR AR MJO References Performance Measure: Scenario: Today is 20 September The accused is PFC Everett L. Jacobs Jr., , Company C, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana Race: Black Sex: Male Company Commander: CPT THOMAS R. ANDERSON Battalion Commander: LTC GARY E. PIKE On 20 September 2010, PFC Jacobs missed 0630 physical training formation which takes place outside of building SGT Peters (PFC Jacobs squad leader) provided a DA Form 4856, Counseling Statement, dated 20 September Chapter 2 Military Justice Page 107

114 CPT Anderson read the Summarized Article 15 to PFC Jacobs on 20 September PFC Jacobs was afforded 24 hours to make a decision regarding his rights and decided not to demand trial by court-martial immediately following the initial reading. Matters in extenuation and mitigation were not submitted. CPT Anderson imposed the following punishment: Extra duty for 5 days. PFC Jacobs immediately elected to appeal and not to submit any additional matters for consideration by the superior Commander. On 22 September 2010, LTC Pike denied the appeal. PFC Jacobs acknowledged the appeal on 22 September Requirement: Prepare a Summarized Article 15 through the appeals process using the above mentioned scenario. Ensure all information is correctly entered on a DA Form and any necessary continuation sheets. Complete this Performance Measure through both MJO and APD. See Appendix B-4 for the answers to this exercise. Chapter 2 Military Justice Page 108

115 Prepare, Process, and Review a Record of Formal Proceedings under Article 15, UCMJ Condition: You are a Battalion Paralegal. A Soldier in your Battalion has been accused of violating various Articles of the Uniform Code of Military Justice (UCMJ). Your Battalion Commander has asked you to prepare an Article 15 for their signature. You have access to AR and the MCM. NOTE - If you have a computer with internet connection, you MUST use MJOnline!! The steps below are for using the new DA Form 2627 that is generated by MJOnline. A copy of this form can be saved to your computer and used off line. When using MJOnline you still need to ensure that the document generated by MJO is correct and free of errors. You will also be able to tailor the document to your units standards. Performance Steps: 1. Review the file and coordinate with the Commander and Trial Counsel to ensure that a violation of the UCMJ has been committed and that the Commander has Article 15 authority over the offense and accused IAW the MCM and AR 27-10, Chapter Enter the following information in the appropriate blocks in the heading of DA Form a. Enter the accused's verified last name, first name, middle initial, and rank (DOE, John E., RNK). b. Enter the accused s full SSN. c. Use abbreviated unit (include at least two elements of the unit, station and ZIP Code or APO). d. Determine the accused's monthly base pay. Do not round off pay; include cents. NOTE When calculating the pay, use the MONTHLY BASE PAY only. DO NOT include foreign/sea duty pay or any other special pay that was added in the past. MJ Online will calculate this for you. 3. ITEM 1 - Enter each offense by stating the specific violation of the UCMJ along with the Article of the UCMJ violated. Prepare each offense statement in the second person - past tense, using sample specifications from Part IV, MCM (you did). 4. ITEM 2 - Enter the location of legal counsel (Trial Defense Service) in the space provided. 5. ITEM 2 - Enter the name, rank, and at least two elements of the Commander s organization in the appropriate blocks. Chapter 2 Military Justice Page 109

116 6. ITEM 3 Enter the name and rank of the accused Soldier. 7. ITEM 2 and ITEM 3 - Line out all references to a demand for trial by court-martial if the Soldier is attached to or embarked on a vessel. (See the notes on the back of DA Form 2627.) 8. ITEM 4c. - Enter the title and organization of the next superior authority in the space provided (e.g., "Cdr, Bde"). Only one element of the command is required. 9. ITEM 4c. - Enter the full name, rank and abbreviated organization of the imposing Commander (FIRST MI. LAST, RNK, Co, Bn). 10. ITEM 5 - Enter the verified name of the Soldier in the appropriate block (FIRST M. LAST). 11. Enter the verified name, rank, social security number (SSN), unit, and pay of the Soldier in the appropriate blocks on the top of Page 2 of DA Form NOTE - Follow the same steps for Performance Step 2 to complete Performance Step ITEM 10 - List supporting (allied) documents and ethnic and gender data (e.g., "B/M" means black male and should be entered along the right hand margin) IAW AR Forward the DA Form 2627 with allied documents to the Commander for imposition. Allied data could include but is not limited to counseling statements, sworn statements, MP reports, enlisted record briefs (ERB), and written statements from the accused. ITEM 10 can also be used to continue a specification from ITEM 1, if necessary, when it would be more appropriate than using a continuation sheet. Enter the gender data along the right margin and allied documents to the left margin. NOTE - Ensure the Commander has a copy of Appendix B, Suggested Guide for Conduct of Nonjudicial Punishment Proceedings (AR 27-10), and knows the maximum punishments that they can impose under Article 15, UCMJ. It is common practice to prepare a punishment worksheet to include with the Article 15 packet which allows the imposing Commander to easily select appropriate punishments. MJO produces a punishment worksheet for all formal nonjudicial punishment actions. 13. Destroy the DA Form 2627 if the Commander has decided not to impose punishment or, if applicable, ensure the Commander has lined out offense(s) which they have determined the Soldier did not commit. 14. ITEM 2 - Ensure the Commander signed the "SIGNATURE" block and the "DATE" block has been completed. 15. ITEM 3 - Ensure the accused initialed the applicable boxes and has completed the "SIGNATURE" and "DATE" blocks. a. Obtain disposition of charge(s) from the Commander if the Soldier initialed box 3a (demands trial by Courts-Martial). Chapter 2 Military Justice Page 110

117 b. List all documents submitted by the Soldier, if any, in ITEM Enter the appropriate statement in ITEM 4, IAW AR 27-10, Paragraph 3-18f(4), if the Soldier has not completed or refuses to complete ITEM 3 within the decision period (including any extensions). Advised of (his) (her) rights, the Soldier (did not demand trial during the decision period) (refused to (complete) (sign) item 3). 17. Ensure the Commander initialed the appropriate boxes in ITEM 4 (a)(b). 18. Ensure the punishment(s) imposed are within the limits authorized in the MCM, AR 27-10, Paragraph 3-19, and Table ITEM 6 - Enter properly worded punishment IAW the MCM and AR a. Ensure that when more than one punishment is imposed during any single Article 15 proceeding, punishments are listed in the following order (as appropriate): Reduction, forfeiture of pay, deprivations of liberty, admonition/reprimand. b. Ensure the following formats are used: (1) Reduction: Reduction should be entered on DA Form 2627 as follows: "Reduction to Rank (Pay Grade)" Example A - "Reduction to Private First Class (E3)" Example B - "Reduction to SPC (E4)" (2) Forfeitures: Forfeitures of pay will be entered on DA Form 2627 as whole dollar amounts only. If the forfeiture is to be applied for more than one month, the amount to be forfeited per month and the number of months should be stated. Example A - When the forfeiture is to be applied for not more than one month: "Forfeiture of $XXX.00." Example B - When the forfeiture is to be applied for more than one month: "Forfeiture of $XXX.00 per month for two months." (3) Deprivation of Liberty. Specific duties to be performed during extra duty are not normally specified on the DA Form Limits on restriction may be listed on DA Form 2627 but are not required. Example A - Extra duty and restriction, the limits of the restriction not listed on the form: "Extra duty for days, restriction for days." Chapter 2 Military Justice Page 111

118 Example B - Extra duty and restriction, the limits of the restriction listed on the form: "Extra duty for days, restriction to the limits of for days." (4) Admonition and Reprimand. (a) Written admonitions and reprimands imposed as a punitive measure under Article 15, UCMJ, will be in memorandum format IAW AR and will be listed as an attachment in ITEM 10, DA Form (b) Oral admonition and reprimands will clearly be identified as oral in Item 6, DA Form NOTE - See Performance Step 30 if additional space is needed. 20. ITEM 4 - Ensure the imposing Commander initials the appropriate boxes in ITEM 4. Ensure the imposing Commander signs and dates (with date punishment imposed) in ITEM ITEM 5 - Ensure the Soldier has made an election as to the appeal by initialing the appropriate box and completing the "DATE" and "SIGNATURE" blocks. NOTE - If the Soldier does not appeal or fails to make an appeal decision within a reasonable amount of time, proceed to Performance Step 28. If the Soldier appeals punishment, proceed with the next Performance Step. 22. Attach and annotate in ITEM 10 any written matters submitted by the Soldier in appeal and the imposing Commander's rebuttal, if applicable, IAW AR Enter the imposing Commander's action on appeal, if any, in ITEM 8 IAW AR Enter in ITEM 10 "In view of the action taken, I voluntarily withdraw my appeal, followed by the Soldier's signature if the Soldier withdraws the appeal. 24. Forward the appeal with all allied documents to the Brigade Judge Advocate or servicing SJA office if the punishment imposed requires (or the superior authority desires) advice of a Judge Advocate. 25. ITEM 7 - Ensure ITEM 7 is completed, signed, and dated by a Judge Advocate, if applicable. a. If the Judge Advocate determines that the proceedings and punishment were correct, than insert the following statement in ITEM 7. The proceedings were conducted in accordance with law and regulation and the punishment(s) imposed were not unjust nor disproportionate to the offense(s) committed. 26. ITEM 8 - Enter the name, rank, and organization of the superior authority and forward for appellate action. Chapter 2 Military Justice Page 112

119 27. ITEM 9 Ensure the Soldier signs and dates ITEM ITEM 10 - Enter "Paragraph 3-18f(1), AR complied with." IAW AR if a change has occurred in imposing Commanders during the proceedings. 29. ITEM 10 - Enter the following, if applicable: a. List of allied documents (e.g., continuation sheets, documents supporting charges, documents submitted by the Soldier during proceedings, documents submitted by the Soldier in appeal, Commander's rebuttal to appeal). b. When one continuation sheet is used, enter "Continuation Sheet" in ITEM 10. When more than one continuation sheet is used, enter "Continuation Sheets (x)" where "x" is the number of sheets used. c. Events not cited elsewhere, such as action on appeal by imposing Commander. NOTE - ITEM 10 can also be used to continue other items on the form. However, because of limited space, this is normally done using continuation sheets (See Performance Step 30). 30. Continue an item, if necessary, by entering in the item ("SEE CONTINUATION SHEET"). Prepare the continuation sheet on plain bond paper in the same number of copies as the DA Form 2627 using the following format: a. Enter on the eighth (8) line from top of page on the left margin "DA Form 2627, (Last Name), (First Name) (MI), (RANK), (SSN), (Unit). EXAMPLE: DA Form 2627, LAST, FIRST M., RNK, , Co, Bn, Installation, ST b. Skip a line and enter "Item x, continued:" c. Skip another line and continue the item. d. Use the same left and right margins as on DA Form e. Number pages of continuation sheets approximately one inch and centered from the bottom of the page IAW AR For example, the first continuation sheet used would be numbered as page 2, the second page as page 3, etc. NOTE - The format of continuation sheets as shown for DA Form 2627 is consistent with the format used with other forms, such as DD Form 457 (Investigating Officer's Report), DD Form 458 (Charge Sheet), and DD Form 2329 (Record of Trial by Summary Court-Martial). 31. Enter the appropriate information on DA Form 5110, and verify punishments have been executed IAW Paragraph 3-39, AR Chapter 2 Military Justice Page 113

120 32. Make distribution of the original DA Form 2627, copies of the DA Form 2627, and allied documents IAW AR 27-10, Paragraph Maintain statistical data IAW AR 27-10, Chapter 15. MCM AR AR MJO References Performance Measure: Scenario: Today is 7 October The accused is SPC/E4 John B. Buzzworthy, , Company A, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana BASD: 6 June 07 BEPD: 6 June 07 Race: White Sex: Male Base Pay Chart 2 Years 3 Years 4 Years 6 Years 8 Years E4 $1, $2, $2, $2, $2, E5 $2, $2, $2, $2, $2, E6 $2, $2, $2, $2, $3, Company Commander: CPT ROGER A. CARMEL Battalion Commander: LTC GARY E. PIKE Brigade Commander: COL FRANK R. MYERS Division Commander: MG JAMES R. FRANKLIN TDS location: Bldg. 6287, Fort Atterbury, IN Trial Counsel: CPT TYRONIUS LAW SFC Leeroy Jenkins is SPC Buzzworthy s platoon sergeant. On 4 October 2010, SFC Jenkins claims SPC Buzzworthy walked into his office and said get your lazy butt to work. SFC Jenkins office is located in the Company A, 3 rd Battalion, 3 rd Armor motor-pool on Fort Atterbury. SFC Jenkins provided a DA Form 2823, Sworn Statement, dated 4 October Chapter 2 Military Justice Page 114

121 On 1 October 2010, SPC Buzzworthy missed the 0630 PT formation which takes place outside of building SGT Pile (SPC Buzzworthy s squad leader) provided a DA Form 4856, Counseling Statement, dated 1 October On 3 October 2010, SPC Buzzworthy was driving his 2002 Ford Mustang at the corner of Battalion Avenue and Soldier Road on Fort Atterbury when he was pulled over by the military police. SGT Hunt, the MP, noticed a strong odor of alcohol on SPC Buzzworthy s breath. SGT Hunt administered a set of field sobriety tests which SPC Buzzworthy failed; he decided to take him to the Provost Marshall s Office for a breathalyzer test. SPC Buzzworthy blew a.105%. You obtained a copy of the MP report, # LB, dated 5 October LTC Pike read the Article 15 to SPC Buzzworthy on 7 October SPC Buzzworthy met with Trial Defense Counsel on 8 October 2010 and decided not demand trial by courtmartial. Additionally, SPC Buzzworthy decided to have an open hearing but did not request to have a person speak on his behalf. Matters in extenuation and mitigation were not submitted. LTC Pike held the proceedings on 8 October 2010, and in an open hearing, found SPC Buzzworthy guilty of all three offenses. LTC Pike handed down the following punishment: Reduction to PV1 (E1), suspended for three months. Forfeiture of $ pay per month for two months. Extra duty for 45 days. Restriction to the limits of Fort Atterbury, Indiana for 45 days. SPC Buzzworthy elected to appeal but did not submit additional matters. On 9 October 2010, CPT Law, the Trial Counsel, reviewed the Article 15 and did not find any discrepancies in either the proceedings or punishment. On 10 October 2010, COL Myers denied the appeal. SPC Buzzworthy acknowledged the appeal on 10 October Requirement: Prepare an Article 15 through the appeals process using the above mentioned scenario. Ensure all information is correctly entered on DA Form 2627 and any necessary continuation sheets. Complete this Performance Measure using MJO. See Appendix B-5 for the answers to this exercise. Chapter 2 Military Justice Page 115

122 Prepare, Process, and Review a Record of Supplemental Action under Article 15, UCMJ Condition: You are a Battalion Paralegal. A Soldier in your Battalion is currently serving a suspended punishment from a recent Article 15 and they have allegedly committed another offense under the UCMJ. Your Battalion Commander has asked you to prepare a DA Form , to vacate the suspended punishment. NOTE - If you have a computer with internet connection, you MUST use MJOnline!! The steps below are for using the new DA Form that is generated by MJOnline. A copy of this form can be saved to your computer and used off line. When using MJOnline you still need to ensure that the document generated by MJO is correct and free of errors. You will also be able to tailor the document to your units standards. Performance Steps: 1. Ensure the Commander has the authority to take the Supplementary Action. 2. Review the initial DA Form 2627 and ensure the Supplementary Action is within the limitations prescribed by AR and the MCM. 3. Prepare the DA Form IAW AR and the MCM: a. Enter the accused's last name, first name, middle initial, pay grade, SSN, and unit (to include ZIP code or APO) in the appropriate blocks. b. Check appropriate box for the type of Supplementary Action. c. Complete the applicable, ITEMs 1 through 5. NOTE - Ensure you strike through all of the words in the un-used items of this form. d. Enter the name, rank, and organization of the Commander in the appropriate block. (Capitalize name and use rank in signature block IAW AR 25-50). 4. Ensure the filing determination on the initial DA Form 2627, if applicable, is annotated on the DA Form If not applicable, enter "NA". 5. Ensure DA Form is properly authenticated: a. Make sure appropriate authentication boxes are checked. b. Make sure the form is signed and dated. 6. Distribution the DA Form IAW AR 27-10, Chapter 3, Section VII. Chapter 2 Military Justice Page 116

123 7. Ensure DA Form 5110 is annotated IAW AR MCM AR AR MJO References Performance Measure: Scenario: Today is 15 October SPC Buzzworthy was in the process of performing extra duty at the Battalion Headquarters on the evening of 14 October As he scrubbed away at boot-marks on the floor, CPT Felix Barber, the Staff Duty Officer, walked over and told him to hurry up because he was taking too long. SPC Buzzworthy got up from the floor, looked CPT Barber straight in the eye, and told him to go sit on an improvised explosive device (IED). CPT Barber immediately told him to at ease, but SPC Buzzworthy turned his back, put the palm of his hand in front of CPT Barber s face and walked out of the building. CPT Barber provided LTC Pike a sworn statement (DA Form 2823) dated 14 October LTC Pike informed you that he wants to vacate the suspended reduction he imposed on SPC Buzzworthy on 8 October 2010 based on the offenses listed above today. SPC Buzzworthy was given an opportunity to rebut and was present at the proceedings. Requirement: Prepare a Record of Supplementary Action under Article 15, UCMJ (DA Form ) vacating the suspended punishment of SPC Buzzworthy (use the scenario from the Task: Prepare, Process, and Review a Record of Formal Proceedings under Article 15, UCMJ). Ensure you use MJO to complete this Performance Measure. See Appendix B-6 for the answers to this exercise. Chapter 2 Military Justice Page 117

124 SECTION III: Courts-Martial Pre-Trial Prepare and Process Court-Martial Documents through Preferral Condition: You are a Battalion Paralegal. Your NCOIC has just handed you a CID report alleging various violations of the UCMJ by a Soldier in your unit. After consulting with the Trial Counsel and Commander you were tasked to prepare the charges using a DA Form 458. Performance Steps: 1. Coordinate with the unit Commander and Judge Advocate and ascertain the following: a. That a violation of the UCMJ has been committed. b. UCMJ jurisdiction exists over the Soldier and the offense. c. Sufficient information exits in the file to proceed with the case. d. The most appropriate way to charge the offense. 2. Obtain evidence/documents from the unit Commander or other authorities substantiating the charges. Draft the charges and specifications IAW the MCM. 3. Request a certified ERB from the proper authority (typically the unit S1), also request certified copies of awards, evaluations, and any nonjudicial punishment previously received. 4. Prepare DD Form 458 IAW the MCM Appendix 4, and AR ITEM 1 - Enter the Soldier's last name, first name, and middle initial. Enter other elements of the name, such as "Jr." or "III" if any. When the accused is known by an alias, the alias must also be listed if it is important to the case. 6. ITEM 2 - Enter the accused's SSN. 7. ITEMs 3 and 4 - Enter the accused's rank (e.g., SSG) and pay grade (e.g., E6) in the spaces provided in the "GRADE OR RANK" and "PAY GRADE" blocks 8. ITEM 5 - Enter the accused's organization (complete unit designation, including station and ZIP Code or APO.) 9. ITEM 6 - Enter the accused's current service data as follows: Chapter 2 Military Justice Page 118

125 a. Initial Date - To get this date subtract term of service from the ETS date and add one day. EXAMPLE: ETS date (22 MAR 02) Term of Service (This equals 4 years) Add one day (23 MAR 98) b. Term of Service - Enter, in years, the duration of the current enlistment. 10. ITEM 7 - Enter the accused's pay per month: a. Basic Pay Block - Basic pay is determined by subtracting the accused's basic active service date from today's date. Do not round off pay; include cents. b. Sea/Foreign Duty Block - If the accused is drawing any sea or foreign duty pay enter it here. If no sea or foreign duty pay is received enter "$0.00." NOTE Foreign Duty Pay is now called Hardship Duty Pay (HDP). c. Total Block - Add the basic and the sea/foreign duty blocks together. 11. ITEMs 8 and 9 - Enter the nature and date(s) of any pre-trial restraint (as defined by the MCM) imposed on the accused. If any form of restraint was terminated prior to trial, enter the termination date in ITEM 9. NOTE - Pre-trial restraint may consist of conditions on liberty, restriction in lieu of arrest, arrest or confinement. NOTE - For ITEMs 1-9 see AR for requirements if more than one accused is charged on the same charge sheet with the commission of a joint offense. 12. ITEM 10 - Enter the properly drafted charge(s) and specification(s) IAW the MCM. 13. ITEMs 11a through 11e - Ensure the accuser is subject to the UCMJ. Complete ITEMs 11a through 11e as follows: a. Name of Accuser - Enter the last name, first name and middle initial of the accuser. b. Grade - Enter the rank of the accuser (e.g., (Captain, Major)). c. Organization of Accuser - Enter at least two elements of the accuser's organization. Chapter 2 Military Justice Page 119

126 d. Signature of Accuser - Ensure the accuser signs this block after being sworn by the officer administering the oath. e. Date - Enter the date the accuser signs the form. 14. Ensure the "Affidavit" is completed, signed, and dated by a commissioned officer (including a commissioned warrant officer) authorized to administer oaths IAW Article 136, UCMJ. 15. ITEM 12 - Ensure the notification is completed and signed by the immediate Commander IAW the MCM. 16. Prepare a transmittal memorandum IAW the MCM, R.C.M. 401(c)(2), AR 27-10, and AR Ensure the memorandum is signed, dated, and forwarded with all enclosures (charge sheet and allied papers) to the summary court-martial convening authority (SCMCA). NOTE - Transmittal memorandums are designed to get the recommendation of the chain of command as to disposition of the charges. 17. ITEM 13 - Ensure the receipt is completed and signed IAW the MCM. 18. Ensure the charge sheet and allied papers are forwarded through the chain of command by memorandum to the officer exercising the appropriate court-martial jurisdiction IAW the MCM and AR Ensure the DD Form 458 and allied documents are legible and correctly completed IAW the MCM Appendix 4. MCM AR AR References Performance Measures: Today is 7 October You are the Battalion Paralegal for 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Your Battalion Commander exercises summary court-martial jurisdiction. Chapter 2 Military Justice Page 120

127 You are working on the case of US v. McGovern. Data on the accused and additional information is as follows: Accused: SSG Lockwood A. McGovern SSN: Unit: Company A, 3 rd Battalion, 3 rd Armor ETS date: 22 January 2012 Term of current service: 6 years. BASD: 23 January 2006 PEBD: 23 January 2006 Sea/foreign duty pay: None. The accused was placed in pre-trial confinement today. Offenses occurred at Fort Atterbury, Indiana. Race: White. Sex: Male. Base Pay Chart 2 Years 3 Years 4 Years 6 Years 8 Years E4 $1, $2, $2, $2, $2, E5 $2, $2, $2, $2, $2, E6 $2, $2, $2, $2, $3, Extract from sworn statements by Ms. Gloria Groves: "At 1800, 5 October 2010, I was apologizing to SSG McGovern for using obscene language towards him. While I was talking to him, he said that we have more than a failure to communicate. He then became very upset and started screaming that he was going to kill me if it was the last thing he ever did." "At 0100, 6 October 2010, I was at home watching TV and I heard a knock on the door. I looked out and saw SSG McGovern standing outside so I opened the door to see what he wanted. After I let him inside, he started hitting me on my back with a stick. I fell on the floor and started crying. After he left I had to be taken to the hospital because I had received seven deep cuts on my back." SSG McGovern was placed in pre-trial confinement on 7 October Situation 1: The company commander, CPT Thomas R. Anderson, AR, directed that you prepare a DD Form 458 for his signature. The charges will be sworn today before CPT Tyronius Law, JA, Trial Counsel (CPT Law is assigned to HHC, 3 rd BDE) Chapter 2 Military Justice Page 121

128 NOTE There is an example of a Company Commanders, Battalion Commanders, and Brigade Commanders court-martial recommendation memorandum in Appendix B-7. It is common practice for all levels of command to sign one of these memorandums which tell the next superior Commander the level in which they wish the case to be tried. Please check your local SOP for examples for how this memorandum is formatted. Requirement: Prepare the appropriate items of a DD Form 458. Situation 2: CPT Anderson notified SSG McGovern of the charges today. The charges were forwarded and received at the Battalion by the Commander, LTC Gary E. Pike, at 1000 today. Requirement: Prepare the appropriate items of a DD Form 458. See Appendix B-7 for the answers to this exercise. Chapter 2 Military Justice Page 122

129 Prepare and Process a Soldier for Pre-Trial Confinement Condition: You are a Battalion Paralegal. The Trial Counsel has just informed you that a Soldier from your Battalion is being placed into pre-trial confinement for committing a dangerous crime and has tasked you to prepare the confinement order. NOTE Please check your local SOP as all confinement facilities are different in the documents required and the transfer procedures. Performance Steps: 1. Ensure that the SJA is notified of the confinement as soon as practicable. NOTE - You may not be the one who contacts the SJA directly. Ensure you go through the proper channels when making this notification. Check local procedures. 2. Coordinate with TDS to have counsel assigned to the Soldier NLT 72 hours after initial confinement. 3. Properly fill out DD Form 2707, ITEM 1 through ITEM ITEM 4 - Summarize the charges and specifications the accused has allegedly violated. NOTE - ITEM 5 and ITEM 6 are not used for pre-trial confinement. 5. ITEM 7, type the name of the person directing confinement, typically the Commander of the Soldier. 6. ITEM 8 - Type the name of the officer conducting the legal review for the pre-trial confinement, typically the Trial Counsel. NOTE - Check your local procedures and your servicing confinement facility about where the Medical Certificate is filled out. 7. Ensure DA Form 5112 (Checklist for Pre-Trial Confinement) has been completed IAW AR and the MCM and is included with the Soldier's records. 8. Ensure the unit Commander has had the Soldier's military clothing and personal property inventoried IAW AR and AR Ensure the Soldier's unit Commander has coordinated the necessary transportation and escort(s) requirements. Chapter 2 Military Justice Page 123

130 10. Ensure the following documents are forwarded to the confinement facility with the Soldier: a. DD Form 2707 (original and one copy). b. DA Form c. DA Form 3078 or a list of clothing items transferred with the Soldier (AR ). d. Inventory of personal property and excess military clothing retained at the unit for safekeeping on a DA Form 3078 IAW AR NOTE - A 48 hour probable cause determination is required IAW the MCM, as is a 72 hour probable cause determination memorandum provided by the Commander and a seven day review. R.C.M. 305 covers pre-trial confinement. 11. Ensure the following documents are forwarded to the military magistrate within 24 hours of confinement: a. DD Form 2707 (copy). b. DA Form c. DD Form 458 and allied papers as applicable. 12. Ensure two copies of the DD Form 2707 are forwarded to Army Community Service (ACS). 13. When the escorts drop the Soldier off at the confinement facility ensure they get the DD Form 2707 signed depicting the confinement officer's or authorized representative's "Receipt for Prisoner" and a DD Form NOTE For examples of the above mentioned forms, see Appendix B-8. AR MCM AR AR AR References Chapter 2 Military Justice Page 124

131 Performance Measures: Take the written test below. 1. DA Form 5112 is titled what? 2. What R.C.M. in the MCM covers pre-trial confinement? 3. When must the SJA be notified that a Soldier is being placed into pre-trial confinement? Cite the regulation and paragraph. 4. Why would you take physical size of the Soldiers selected to be escorts and that of the Soldier accused into consideration? 5. Where can you find the information about the 48 hour probable cause determination and the seven day review? See Appendix B-8 for the answers to this exercise. Chapter 2 Military Justice Page 125

132 Prepare and Process an Article 32 Investigation Condition: You are a Battalion Paralegal. Charges have been preferred with a view towards a General Court-Martial (GCM) against a Soldier assigned to your unit (no charges may be referred to a GCM without giving the Soldier the opportunity to an Article 32 hearing). The Brigade Commander has directed that an Article 32 hearing take place. Performance Steps: NOTE: The primary purpose of the investigation required by Article 32 is to inquire into the truth of the matters set forth in the charges, the form of the charges, and to secure information on which to determine what disposition should be made of the case. The investigation also serves as a means of discovery. The function of the investigation is to ascertain and impartially weigh all available facts in arriving at conclusions and recommendations, not to perfect a case against the Soldier. The investigation should be limited to the issues raised by the charges and necessary to proper disposition of the case. A pre-trial investigation is not required for special or summary courtsmartial. 1. Get the name of the investigating officer (IO) from the appointing authority. NOTE - The appointing authority is the person directing that the Article 32 hearing take place and assigns the investigating officer to this duty. An appointing authority can be anyone authorized to convene a court-martial. The investigating officer should be an officer in the grade of major or higher or one with legal training. The investigating officer may seek legal advice concerning the investigating officer s responsibilities from an impartial source but may not obtain such advice from counsel for any party. Pre-trial Investigation is covered in the MCM under Article 32 and R.C.M Prepare a memorandum appointing and providing instruction to the investigating officer IAW the MCM, R.C. M. 405(c) and (d), AR 15-6, and AR The appointment memorandum often includes guidance as to granting delay requests, suspense for having the report completed, how to contact a legal advisor, and the fact that duty as an investigating officer is a primary duty. NOTE There is an example of an appointment memorandum in Appendix B-9. Please check your local SOP for local standards for this memorandum. 3. Forward (hand carry if possible) the appointment memorandum, case file, and any additional documents to the IO. Provide the IO with a copy of the MCM, DD Form 457, and DA PAM (IAW DA Pam 27-17, Paragraph 1-2(b), administrative law attorneys provide legal advice to the IO, make coordination as necessary) NOTE - Assist the IO in the procedural aspects of setting up this investigation and do not give your opinion of the case to them. Your assistance also avoids the trial counsel s assistance which could be interpreted as an appearance of impartiality by the Soldier or defense counsel. (Noted in DA Pam 27-17, Paragraph 1-2(b)) 4. Prepare a memorandum of notification to notify the Soldier of the Article 32 Investigation (there is an example of this memorandum in DA PAM 27-17, Figure 2-2). Chapter 2 Military Justice Page 126

133 5. The Soldier must acknowledge notification of the investigation. Coordinate with the appointed Defense Counsel and the IO for completion of the Soldier's acknowledgment by memorandum IAW DA PAM 27-17, Figure Coordinate securing the attendance of civilian witnesses not employed by the government with the IO as necessary IAW the MCM, R.C.M. 405(g). 7. Coordinate securing the attendance of military/government employed witnesses with the IO and the witness s Commanders/supervisors IAW the MCM and AR Ensure Victim/Witness Liaison (VWL) is notified of names of victims or witnesses IAW AR Assist the IO during the investigation by taking notes and recording the proceedings (use of a blank DD Form 457 is helpful in making sure the IO has covered all necessary steps in the investigation). 9. Ensure the witness testimony is accurately recorded on DA Form 2823 IAW DA PAM It is common practice to summarize the entire proceeding on plain bond paper. NOTE - AR , Figure B-1 shows an example of how to summarize testimony and report the proceedings of a board. This format is often used instead of recording testimony on DA Form Check with your IO, Trial Counsel, and appointing authority to see if this is acceptable in your case. To see an example of how to properly fill out DD Form 457 refer to DA PAM 27-17, Figure 4-1 or the MCM, Appendix 5. More information on summarized testimony can be seen in the task Prepare a Summarization of Testimony/Proceedings later on in this chapter. 10. Prepare appropriate memoranda from the IO to the appointing authority forwarding the report IAW DA PAM and the MCM. NOTE - It is common practice for the investigating officer to prepare a memorandum explaining in detail their recommendation as to the disposition of charges to the appointing authority. This is not a requirement however. 11. Forward the report (hand carry if possible) to the appointing authority. NOTE - The appointing authority is not bound by the recommendation of the investigating officer. 12. Ensure the Soldier and Defense Counsel are provided a copy of the report IAW the MCM. Have the Soldier and Defense Counsel, sign a receipt (DA Form 200) for the report and add this receipt to your original case file. NOTE - Ensure that defense delays are properly noted and explained in the investigating officer s report. Insufficient explanations as to the validity of such delays can be used against the government for speedy trial purposes. NOTE For examples on the above mentioned memoranda and forms, see Appendix B-9. Chapter 2 Military Justice Page 127

134 MCM AR DA PAM AR AR 15-6 Soldier s Training Manual Paralegal Specialist (27D) References Performance Measures: Answer the following questions. You may use the MCM and DA PAM while taking this test. 1. Under what rule for court-martial are pre-trial investigations covered? 2. What rank should the investigating officer be? 3. What DA Pam covers pre-trial investigations? 4. TRUE or FALSE: A pre-trial investigation is required for a special court-martial empowered to adjudge a bad-conduct discharge. Provide a reference for your answer. 5. TRUE or FALSE: The accuser in a case is not allowed to be the investigating officer. Provide a reference for your answer. 6. TRUE or FALSE: Only special and general court-martial convening authorities can order pre-trial investigations. Provide a reference for your answer. 7. Does the IO have the authority to approve reasonable requests for delay by the accused? Provide a reference for your answer. 8. TRUE or FALSE: Access to the pre-trial investigation by spectators is decided by government counsel. Provide a reference for your answer. 9. What is the primary purpose of the pre-trial investigation required by Article 32? 10. TRUE or FALSE: Consultation between the investigating officer and his/her impartial legal advisor is considered protected communication. Provide a reference for your answer. 11. TRUE or FALSE: A government representative (trial counsel) is not required in an Article 32 investigation. Provide a reference for your answer. See Appendix B-9 for the answers to this exercise. Chapter 2 Military Justice Page 128

135 Prepare a Staff Judge Advocate Pre-Trial Advice Memorandum Condition: You are a Paralegal working in the Military Justice section of the Office of the Staff Judge Advocate. A case has been preferred with a view to trial by General Court- Martial. The Article 32 hearing, Investigating Officer Report and transcript are all complete. You must prepare the SJA s pre-trial advice memorandum in this General Court-Martial (or Special Court-Martial in certain cases) for submission to the Staff Judge Advocate (SJA) for their review. Performance Steps: 1. The Staff Judge Advocate s pre-trial advice memorandum is accomplished prior to referral. 2. The memorandum, pursuant to MCM, R.C.M. 406, contains at a minimum the following guidance from the Staff Judge Advocate. a. Whether the charges and specifications allege an offense under the code. b. A conclusion with respect to whether the allegation of each offense is warranted by the evidence indicated in the report of investigation (if there is such a report). c. A conclusion with respect to whether a court-martial would have jurisdiction over the accused and the offense(s). d. A recommendation of the action to be taken by the convening authority. 3. The pre-trial advice memorandum is personally signed by the Staff Judge Advocate (MCM, R.C.M. 406 discussion). 4. Format of the pre-trial advice memorandum will be IAW AR 25-50, Preparing and Managing Correspondence. 5. A copy of the Staff Judge Advocate s pre-trial advice is served to Defense Counsel if the case is referred to court-martial. NOTE - In addition, the pre-trial advice should include when appropriate: a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; and any previous recommendations, by Commanders or others who have forwarded the charges, for disposition of the case. However, there is no legal requirement to include such information and failure to do so is not error. At a special court-martial, a sentence that includes confinement in excess of six months; forfeitures for six months; or a bad-conduct discharge, are not authorized unless pre-trial advice has been given. See AR Paragraph Chapter 2 Military Justice Page 129

136 MCM AR AR Soldier s Training Manual Paralegal Specialist (27D) References Performance Measures: Situation: Today is 15 November The accused is PV2 Emmett G. Lancaster, , Company B, 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54 th Infantry Division (Mechanized). The Staff Judge Advocate has reviewed the case and concludes that the charges and specifications allege offenses under the UCMJ, that there is sufficient evidence to substantiate the charges and that the Commanding General, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana , has jurisdiction in this case and over the charges and specifications. The Staff Judge Advocate recommends that the Commanding General refer this case to a General Court-Martial convened by CMCO # 14, dated 11 April Your office symbol is AJJ-JA. The Staff Judge Advocate is COL Thomas Landry and the Commanding General is Major General James R. Franklin. The Staff Judge Advocate and the Commanding General will both sign the memorandum today. Requirement: Draft a memorandum with the Staff Judge Advocate s advice. See Appendix B-10 for the answers to this exercise. Chapter 2 Military Justice Page 130

137 Prepare and Process a Referral to Trial Condition: You are a Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate and have been tasked to prepare a DD Form 458, Charge Sheet, through referral. Performance Steps: NOTE - Before any charge may be referred to trial by General Court-Martial, it shall be referred to the Staff Judge Advocate of the convening authority for consideration and advice after an Article 32 Investigation has either been completed or waived. Pre-trial advice need not be prepared in cases referred to special or summary courts-martial. A convening authority may, however, seek the advice of a lawyer before referring charges to such a court-martial. 1. Ensure Part I through Part IV, DD Form 458, are completed IAW the MCM and AR NOTE - There is an example of how to properly fill out DD Form 458 in Appendix B Ascertain from the convening authority the type of court-martial to which the case will be referred. 3. Obtain the appropriate convening order(s) or, in the case of a summary court-martial (SCM), the convening authority's selection as a summary court-martial officer. 4. Complete ITEMs 14a through 14c, Part V, DA Form 458 as follows: a. ITEM 14a - Enter the convening authority's designation of command (unit). This item should always start with "HQ". After entering "HQ", enter at least two elements of the command for Brigades or lower echelons. Only one element is required for Division or higher echelons. b. ITEM 14b - Enter the geographical location of the command. The zip code must also be entered in this block. c. ITEM 14c - Enter the date the referral is signed. 5. Enter the type of court-martial in the space provided. 6. For a special or General Court-Marital enter the CMCO(s) and the date(s) of the order(s) in the space provided after the words "convened by" if referred to a SPCM or GCM. 7. For a summary court-martial enter after the words "convened by this detail of (Rank and Name of summary court-martial officer) as a summary court-martial on (date)" IAW AR Chapter 2 Military Justice Page 131

138 8. Enter any special instructions of the convening authority in the appropriate space IAW the MCM. If there are no special instructions, enter "None." Examples of special instructions are: a. Additional Charges - to be tried in conjunction with the original charges. b. Joint Trial - to be tried jointly with (Rank and Name of co-accused). c. Common Trial - To be tried in common with (Rank and Name of other accused). d. Special BCD - this court is empowered to adjudge a Bad Conduct Discharge. e. Capital Offenses - to be tried as a (capital) (non-capital) case. 9. Ensure the referral is authenticated IAW the MCM, AR 27-10, and AR a. Delete the preprinted authority line words "By" and "of" if the referral will be personally signed by the convening authority. b. Enter the following authority line if the referral is signed for the convening authority: 1. "BY COMMAND OF (insert Rank and Last Name of the Court-Martial Convening Authority (CMCA))," when the CMCA is a general officer. 2. "BY ORDER OF (insert Rank and Last Name of the CMCA)," when the CMCA is below the rank of BG. c. Enter the name, grade, and official capacity of the official signing on the appropriate lines. 10. If the charges referred to trial by court-martial are different from those that were originally referred (commonly called the FLAP), use the following procedures: a. Prepare Part V of a blank charge sheet. Cut out the newly prepared Part V and fasten it over the previous referral forming a "flap." b. Ensure the previous referral is lined out and initialed by the person signing the new referral. Do not destroy the previous referral. 11. Coordinate with the Trial Counsel to serve the charges on the accused IAW the MCM and AR Ensure that Part V, the service of charges portion of DD Form 458 is completed, signed, and dated IAW the MCM and AR 27-10, by the Trial Counsel. Chapter 2 Military Justice Page 132

139 13. Inform the Defense Counsel that the accused was served a copy of the charges. 14. Provide the Trial and Defense Counsel a complete copy of the SPCM or GCM file. 15. Provide the Military Judge a copy of the charge sheet, CMCO(s), and the accused's ERB. 16. For a SCM, ensure the SCM officer receives the SCM packet, DA PAM 27-7, and the MCM. 17. Ensure coordination is made with the victim/witness liaison and provide copies of case file as necessary. NOTE: Immediately on referral of charges for trial, the Trial Counsel will serve or cause the charges to be served on the accused and furnish a copy of the charges and specifications to the Defense Counsel and Military Judge detailed to the court-martial. If the accused has been or is under pre-trial restraint, the Trial Counsel will inform the Military Judge of its nature and duration. MCM AR References Performance Measures: NOTE There is an example of a DD Form 458, from Preferral to summary court-martial convening authority notification in Appendix B-7. Situation 1: You are the Battalion Paralegal for 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Your Battalion exercises summary court-martial jurisdiction. Today is 9 November 2010 and your Battalion Commander, LTC Gary E. Pike, AR, has informed you that he wants to refer the case of PFC Jacob M. Lopez for trial by summary court-martial and has instructed you to prepare a referral to trial for his signature. He has also informed you that MAJ Aaron McKenna will be the summary court-martial officer. There are no special instructions for the court. Your unit's Trial Counsel, CPT Tyronius Law, will serve the accused today. Requirement: Prepare the appropriate portions of Part V, DD Form 458. See Appendix B-11a for the answer to this exercise. Chapter 2 Military Justice Page 133

140 Situation 2: Soldier s Training Manual Paralegal Specialist (27D) You are the Brigade Paralegal NCOIC for 3 rd Brigade, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Your Brigade exercises special court-martial jurisdiction. Today is 10 November 2010 and your Brigade Commander, COL Frank R. Myers, AR, has instructed you to refer SFC Roger Cowboy to a special court-martial with no special instructions. The current courts-martial convening order is number 1, dated 13 June COL Myers will sign the referral today. Your unit's Trial Counsel is CPT Tyronius Law. CPT Law personally served the accused a copy of the referral today. Requirement: Prepare the appropriate portions of Part V, DD Form 458. See Appendix B-11b for the answer to this exercise. Situation 3: You are a Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Today is 15 November The Commanding General, Major General James R. Franklin, has directed that the case of SPC Anthony R. Gurode, who is charged with murder, be referred to trial by General Court-Martial. MSG Wade Jones, Military Justice NCO, will sign the referral for Major General Franklin tomorrow morning. The current court-martial convening order is CMCO No. 2, dated 2 June Major General Franklin has directed that this case be tried as a non-capital case. The Trial Counsel for the case is CPT Tyronius Law. CPT Law has directed that you serve the charges on the accused as soon as the referral is signed. Requirement: Prepare the appropriate portions of Part V, DD Form 458. See Appendix B-11c for the answer to this exercise. Chapter 2 Military Justice Page 134

141 Prepare and Process a Summary Court-Martial (SCM) Condition: You are serving as a Battalion Paralegal. A Soldier in your unit has turned down proceedings under Article 15 (field grade) and the Battalion Commander, in consultation with the Company Commander and the Trial Counsel, has decided to prefer charges to a summary court-martial. Performance Steps: 1. Maintain possession of all original court-martial documents: a. DD Form 458 (Charge Sheet). b. Transmittal memoranda. c. Allied documents listed on memoranda. d. Trial notes or draft DD Form 2329 (Record of Trial by Summary Court-Martial). e. Documents presented at trial. f. DA Form 5111(Summary Court-Martial Rights Notification/Waiver Statement). g. DA Form 4430 (Report of Result of Trial). h. DD Form 2707 (Confinement Order), if applicable. 2. Ensure DA Form 5111 is completed. Coordinate with Trial Defense Services personnel as necessary. NOTE There is an example of a DA Form 5111 in Appendix B ITEM 1 - Complete DD Form 2329, Record of Trial by Summary Court-Martial, as follows: a. BLOCK 1a - Enter the accused's last name, first name, and middle initial (Last, First MI.). b. BLOCK 1b - Enter the accused's grade or rank. c. BLOCK 1c - Enter at least two elements of the accused's unit and include the geographical location and ZIP Code or APO. d. BLOCK 1d - Enter the accused's SSN. Chapter 2 Military Justice Page 135

142 4. ITEM 2 - Complete as follows: a. BLOCK 2a - Enter the convening authority's last name, first name, and middle initial (Last, First MI.). b. BLOCK 2b - Enter the convening authority's rank. c. BLOCK 2c - Enter the convening authority's position (e.g., Commander or Acting Commander) NOTE - If there is an Acting Commander you will need to attach the assumption of command orders. d. BLOCK 2d - Enter at least two elements of the convening authority's organization and include the geographical location and ZIP Code or APO. 5. ITEM 3 - Complete as follows: a. BLOCK 3a - Enter the summary court-martial officers last name, first name, and middle initial (Last, First MI.). b. BLOCK 3b - Enter the summary court-martial officers rank. c. BLOCK 3c - Enter at least two elements of the SCM's unit and include the geographical location and ZIP Code or APO. 6. ITEM 4 - Enter the date of the preliminary proceedings in the space provided and place an "X" in the yes or no block as appropriate. 7. ITEMs 5a through 5n Enter an X in the yes or no blocks as appropriate. 8. ITEM 6 - Enter date of trial proceeding and ensure a box is checked as appropriate and that the accused has initialed this block. 9. ITEM 7 - Complete as follows: a. BLOCK 7a - Ensure one of the boxes is checked as appropriate. b. BLOCK 7b - If the Soldier is represented by a military Defense Counsel, enter the Defense Counsel's last name, first name and middle initial (Last, First MI.). If not represented by counsel, leave this block blank. c. BLOCK 7c - If the Soldier is represented by a Defense Counsel, insert the Defense Counsel's rank. If represented by a civilian attorney or if not represented by counsel, leave this block blank. Chapter 2 Military Justice Page 136

143 d. BLOCK 7d - If the Soldier is represented by qualified counsel enter "Qualified as a Defense Counsel under the provisions of R.C.M. 502(d)(3), MCM. If not represented by counsel, leave this block blank. 10. ITEM 8 Strike through the word attached and enter a summarized description of the charges and specifications on which the accused was arraigned. Ensure all articles of the UCMJ charged are listed and accompanied by a summarization of each specification which sufficiently alleges the offense, date of the offense, and all aggravating factors or values affecting maximum punishments. Enter the accused's pleas and the findings. NOTE - Refer to the format in the MCM, Appendix 17, and Discussion, R.C.M. 307(c). 11. ITEM 9 - Enter the sentence verbatim as it was announced at the trial. 12. ITEM 10 - Ensure the applicable box has been checked or "NA" is entered when there is no confinement. 13. ITEM 11 - Ensure the applicable box has been checked or "NA" is entered in the case of an acquittal. 14. ITEM 12 - Ensure the summary court-martial officer has authenticated and dated the proceedings. 15. Attach the original DA Form 5111 to the original Record of Trial (DD Form 2329) and a copy of DA Form 5111 to all copies of the court-martial packet. 16. Ensure a copy of the authenticated Record of Trial (including supporting documents) is served on the accused IAW the Manual for Courts-Martial and AR The accused's receipt may be annotated following the charges in item 8 or on a continuation sheet, if used; or attached to the Record of Trial when prepared as a separate document. 17. Ensure a DA Form 4430 is prepared IAW AR Ensure a DD Form 2707 (Confinement Order) is prepared if the accused was sentenced to confinement. 19. Forward the original and one copy of the Record of Trial to the convening authority for action (Item 13) if the trial resulted in a conviction and applicable time periods under R.C.M have expired. Note - After a summary court-martial, the accused may submit matters under R.C.M within seven days after the sentence is announced. If the accused shows that additional time is required to submit such matters, the convening authority may, for good cause, extend the period in which matters may be submitted for up to 20 additional days. In other words, the convening authority cannot take action until seven days after the summary court-martial took place or until after the accused submitted matters for consideration. Chapter 2 Military Justice Page 137

144 20. ITEM 13 - Enter the convening authority's action, if any, IAW MCM, Appendix 16, and AR Make copies of DD Form 2329 and distribute them IAW AR Forward the original Record of Trial for legal review IAW the MCM, R.C.M and distribute the legal review memo IAW the MCM, R.C.M NOTE - The legal review is typically performed by the administrative law office and will contain the following statement This record of trial has been reviewed under Article 64(a), UCMJ, and R.C.M and is legally sufficient. 23. Maintain statistical data IAW AR 27-10, Chapter 15. NOTE - The Record of Trial for a Summary Court-Martial will be distributed IAW Chapter 12, Paragraph 7, AR MCM AR DA PAM 27-7 References Performance Measures: General Information: You are the Battalion Paralegal for 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Your Battalion has summary court-martial jurisdiction. Situation 1: Today is 16 November The summary court-martial officer, MAJ Aaron McKenna, Headquarters and Headquarters Company, 3 rd Battalion, 3 rd Armor, has provided you with the following information on the summary court-martial of PFC Jacob M. Lopez, , Company A, 3 rd Battalion, 3 rd Armor: a. At the preliminary proceedings held on 15 November 2010, the summary courtmartial completed the "YES" column in ITEM 4 and in ITEMs 5a through 5n, DD Form b. At the trial proceedings held on 15 November 2010, the accused did not object to trial by summary court-martial and was not represented by counsel. Chapter 2 Military Justice Page 138

145 c. The accused was arraigned on the following charges and specifications. The accused's pleas and the findings were as follows: Charge I: Article 86. CHARGES AND SPECIFICATIONS Specification 1: In that Private First Class Jacob M. Lopez, U.S. Army, did, on or about 2 October 2010, without authority, absent himself from his unit, to wit: Company A, 3 rd Battalion, 3 rd Armor, located at Fort Atterbury, Indiana, and did remain so absent until on or about 30 October Specification 2: In that Private First Class Jacob M. Lopez, U.S. Army, did at Fort Atterbury, Indiana, on or about 2 November 2010, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0730 work call formation in front of building Charge II: Article 134. Specification: In that Private First Class Jacob M. Lopez, U.S. Army, was, at Fort Atterbury, Indiana, on or about 27 September 2010, drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces. Charge I: Guilty. PLEAS Specification 1: Guilty, except the figure "30," substituting therefore the figure "29," to the excepted figure, Not Guilty, to the substituted figure, Guilty. Specification 2: Guilty. Charge II: Not Guilty. Specification: Not Guilty. Charge I: Guilty. FINDINGS Specification 1: Guilty, except the figure "30," substituting therefore the figure "29," to the excepted figure, Not Guilty, to the substituted figure, Guilty. Specification 2: Guilty. Chapter 2 Military Justice Page 139

146 Charge II: Guilty. Soldier s Training Manual Paralegal Specialist (27D) Specification: Guilty. d. Sentence: Forfeiture of $ and restriction to the limits of Fort Atterbury, Indiana, for two months. e. The summary court-martial officer checked the "YES" block in Item 11 and signed Item 12 today. f. The accused signed for his copy today (Use DA Form 200 or follow local procedures). Requirement: Prepare the appropriate portions of a DD Form Situation 2: Today is 19 November Your Battalion Commander, LTC Pike, approved and ordered executed the sentence adjudged. He signed the action today. (See the MCM, Appendix 16, for forms for action.) Requirement: Prepare the appropriate portions of a DD Form See Appendix B-12 for the answers to this exercise. Chapter 2 Military Justice Page 140

147 Prepare a Summarization of Testimony/Proceedings Condition: As a Paralegal you may be tasked with summarizing either testimony or procedures. You may have to do this for any of the following: Article 32 Investigation, Administrative Separation Board, AR 15-6 Hearing, or many other types of investigations. No matter which action you are doing, the concept is still the same. You will have access to a recording device for any of these proceedings. NOTE Throughout this Task you will find that there are references to tasks that are taking place in court. This section is geared towards Article 32 Investigations Administrative Separation Boards, and other types of investigations in which a Paralegal may be involved in. The processes are similar to those of a court-martial which are only to be performed by a certified Court Reporter. Performance Steps: 1. Summarization a. Summarization is defined as a comprehensive and brief abstract or recapitulation of previously stated statements. b. The purpose of summarization of testimony is to bring together a comprehensive understanding of the information, facts, and beliefs of what was said on the record in open hearings. c. Advantages to summarization include the speed of transcription, the size of the transcript, and the ability of any paralegal to do the required duty. d. Disadvantages to summarization include the lack of precise detail of the testimony given; the summarization is based on personal belief on the level of importance of the testimony given in the hearing; and the lack of admissibility for impeachment purposes because it is not verbatim. 2. Verbatim Transcript a. A verbatim transcript is a word-for-word written, or typewritten, document of a recording. In essence, a verbatim transcript includes every word said by everyone during the recorded sessions. b. A verbatim transcript must be concise enough to be read and understood so that those who were not in the session can fully comprehend what was said and done by each member present in the recorded session. c. A verbatim transcript can only be produced by a sworn and certified Court Reporter. Chapter 2 Military Justice Page 141

148 3. Standard Stock Entry (SSE) It is vital that certain information is understood by everyone who reads a transcript. To assist Paralegals in producing a certain level of clarity within a transcript for repetitive statements, actions, or introductory line of questioning, standards for entries as well as administrative guides have been produced. The standards for entries are known as standard stock entries (SSE). The administrative guidance provided within Army Regulations and Pamphlets include scripts and reference material for assigned officers in charge of the hearing and their support staff. a. Calling a Witness (Prosecution/Government). (1) Either side of the court can call a witness (2) The Trial Counsel always swears in the witness (3) The SSE must contain the following information: (a) Rank (b) Full Name (First M. Last) (c) Service affiliation HOW IT WOULD APPEAR SUMMARIZED: Sergeant John Q. Doe, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: Questions by the Trial Counsel: DIRECT EXAMINATION I am Sergeant John Q. Doe and I am assigned to Headquarters and Headquarters Company, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana. b. Calling a Witness (Defense). WHAT IS SAID IN COURT: DC: At this time, the defense calls as its next witness, Sergeant John Q. Doe. TC: Raise your right hand. Do you swear or affirm that the evidence you shall give in the case now in hearing shall be the truth, and nothing but the truth, so help you God? Chapter 2 Military Justice Page 142

149 WIT: I do. Soldier s Training Manual Paralegal Specialist (27D) TC: Please be seated. Would you state your full name, rank, organization, station, and branch of service? WIT: My name is Sergeant John Q. Doe and I am assigned to Headquarters and Headquarters Company, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana, and I am in the United States Army. HOW IT WOULD APPEAR SUMMARIZED: Sergeant John Q. Doe, U.S. Army, was called as a witness for the defense, was sworn, and testified in substance as follows: Questions by the Trial Counsel: DIRECT EXAMINATION I am Sergeant John Q. Doe and I am assigned to Headquarters and Headquarters Company, 3 rd Battalion, 3 rd Armor, Fort Atterbury, Indiana. Questions by the Defense Counsel: c. Recalling a Witness (Prosecution/Government). HOW IT WOULD APPEAR SUMMARIZED: Sergeant John Q. Doe, U.S. Army, was recalled as a witness for the prosecution, reminded of his previous oath and testified in substance as follows: Questions by the trial counsel: I am the same Sergeant Doe who testified earlier in this trial. d. Recalling a Witness (Defense). HOW IT WOULD APPEAR SUMMARIZED: Sergeant John Q. Doe, U.S. Army, was recalled as a witness for the defense, reminded of his previous oath and testified in substance as follows: Chapter 2 Military Justice Page 143

150 Questions by the Trial Counsel: I am the same Sergeant Doe who testified earlier in this trial. Questions by the Defense Counsel: 4. Stages of Examination: EXAMPLES: a. Direct Examination. b. Cross-Examination. c. Redirect Examination. d. Recross-Examination. e. Examination by the Court-Martial/Investigation/Hearing. Sergeant John Q. Doe, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the Trial Counsel: Questions by the Defense Counsel: CROSS-EXAMINATION Questions by the Trial Counsel: Questions by the Defense Counsel: REDIRECT EXAMINATION Questions by the Trial Counsel: Questions by the Defense Counsel: Chapter 2 Military Justice Page 144

151 Questions by the Trial Counsel: Questions by the Defense Counsel: RECROSS-EXAMINATION 5. Excusing witnesses and the accused: Once a witness is called to the stand by the court-martial/investigating Officer, they are under total control of the Military Judge/Investigating Officer and may not leave the witness stand until excused by the Military Judge/Investigating Officer. a. Witnesses will be warned not to discuss their testimony with anyone other than authorized persons. These warnings are to ensure the witness knows who they can and cannot speak with in reference to their testimony and what to do if they are approached by an unauthorized person, such as the press, members of the unit, other witnesses, etc. b. There are two types of witness excusal and they are as follows: (1) Permanently excused not subject to recall and not required to remain within the witness waiting area or designated area or contact area. (2) Temporarily excused or subject to recall subject to be called back in to testify and must remain either within a designated area or contact area as informed by the military judge or other member of the court. c. Other times an excusal may take place are as follows: (1) To consult with counsel (trial or defense) (2) Excusing the accused during merits (3) Excusing the accused during extenuation and mitigation (sworn and unsworn statement)(returning to their seat). WHAT IS SAID IN COURT: MJ: Sergeant Doe, do not discuss your testimony with anyone other than the Trial Counsel, Defense Counsel, or accused. If anyone attempts to discuss your testimony with you, report it to the counsel who called you as a witness. You are permanently released. HOW IT WOULD APPEAR SUMMARIZED: Neither side having any further questions, the witness was duly warned, was excused, and withdrew from the courtroom. Chapter 2 Military Justice Page 145

152 6. Identification of the Accused: WHAT IS SAID IN COURT: TC: Do you know the accused in this case? WIT: Yes. TC: Would you point to him and state his name? WIT: His name is Private Snuffy and he is sitting over there [Pointing in the direction of the accused.] TC: Let the record reflect that the witness properly identified the accused by stating his name and pointing to him. HOW IT WOULD APPEAR SUMMARIZED: I know the accused, Private Snuffy. He is right over there [pointing to the accused]. The Trial Counsel stated for the record to reflect that the witness properly identified the accused by stating his name and pointing to him. 7. Motions, Challenges and Objections. The key points to identify are as follows: a. WHO Who made the challenge, motion, or objection? b. WHAT What was the basis of the challenge, motion, or objection? c. WHO Who ruled on the challenge, motion, or objection? d. WHAT What was the ruling? 8. Marking Exhibits. Exhibits offered in courts-martial are marked as follows: a. All Prosecution Exhibits are marked with Arabic numerals, i.e. 1,2,3, etc. b. All Defense Exhibits are marked with capital case Alphabetical markings, i.e. A, B, C, etc. c. All Appellate (Court) Exhibits are marked with Roman Numerals, i.e. I, II, III, etc. Chapter 2 Military Justice Page 146

153 9. Presentation/Offering of Evidence: The process of presentation and offering evidence for a court-martial is as follows: a. Counsel requests that a document or item to be marked as evidence. b. The item is marked for reference in the court. c. The counsel offers the item into evidence. d. The opposing counsel can object or not object. e. If the Military Judge sustains the objection then the item is still marked for identification and not accepted into evidence; otherwise, the Military Judge can overrule the objection and approve the item of evidence. This is annotated on the item by the Military Judge lining or crossing off the wording, for identification and initialing the marking. WHAT IS SAID IN COURT: TC: The prosecution requests this document, DA Form 2627, dated 2 July 2009, be marked as Prosecution Exhibit 1 for identification. Let the record reflect that I am showing Prosecution Exhibit 1 for identification to the Defense Counsel. [Handing the document to Defense Counsel.] TC: Prosecution Exhibit 1 for identification is offered into evidence as Prosecution Exhibit 1. MJ: Defense Counsel, any objections? DC: Your honor, we object to the admission of this document in that there is no legible signature in block 3. MJ: Your objection is overruled. Prosecution Exhibit 1 for identification is admitted into evidence as Prosecution Exhibit Opening, Closing, Recessing, Reconvening, and Adjourning the Court and Accounting for Parties to the Trial: a. RECESS: Short breaks in the proceedings, usually between five minutes to an hour but can last overnight or over an extended period of time. This all depends on the discretion of the military judge. b. ADJOURNMENT: The court will adjourn when the trial has concluded in its entirety. Chapter 2 Military Justice Page 147

154 c. RECONVENING: After a recess, the court will reconvene. Likewise, after an adjournment, the court will reconvene. On the record, the court will be called to order. d. CLOSING: The court closes to allow the court members or the military judge to deliberate on findings or sentence. e. OPENING: When a closed session of the court is completed, the court will open. 11. Miscellaneous Items: There are occasions where counsel, witnesses, or other members of the court will make either a gesture, distance annotation, or a time/date reference that will be a non-verbal annotation. EXAMPLES: Q. How far was the accused from you? A. Well, about from here to the wall. It is important for others reading the record to understand that distance. Therefore, it is important to ensure that it is verbally annotated by counsel, the Military Judge, or the witness for the record. Q. Did he hit you? A. No, but he tried to and I blocked it. Q. How did you block it? A. Like this. If nobody else in the court makes a verbal annotation of the motion or movement of the witness then the reporter s note can annotate that the witness held their arms up about chest height and crossing them in an X configuration. But in any case, the motion or movement must be annotated for the record. Q. Why did you pull the trigger of the gun? A. I don t know, it just happened like that. At the time the witness made the statement, they snapped their fingers. This motion in reference to time has to be annotated for the record as well. Chapter 2 Military Justice Page 148

155 AR 15-6 AR AR DA Pam MCM Soldier s Training Manual Paralegal Specialist (27D) References Performance Measure: Take the written test below. 1. What is summarization? 2. What is a verbatim transcript? 3. Who can produce a verbatim transcript? 4. What does SSE stand for? 5. Who swears in a witness? 6. What information must an SSE contain? 7. What are the five stages of examination? 8. What are the two types of witness excusal? 9. How are Prosecution Exhibits marked? 10. How are Defense Exhibits marked? 11. How are Appellate (Court) Exhibits marked? 12. What is the first step in presenting or offering evidence? 13. What is an adjournment? See Appendix B-13 for the answers to this exercise. Chapter 2 Military Justice Page 149

156 Prepare a Court-Martial Convening Order (CMCO) Condition: You are a Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate. You have been tasked to prepare a standing court-martial panel and therefore must prepare a court-martial convening order (CMCO). Performance Steps: 1. Obtain a list of court members personally selected by the convening authority. These names will either create a new SPCM or GCM, or make amendments to the membership of an existing SPCM or GCM IAW the MCM and AR NOTE This list of court members is selected by the convening authority based on the officers, warrant officers, and noncommissioned officers that are available to them within their command. This master list of potential members can be received from the unit S-1/G-1 section. 2. Ensure the convening authority selected enough qualified officers and, if applicable, qualified enlisted members to obtain a quorum IAW the MCM and AR NOTE - Quorum is the minimum members necessary in order for a court-martial to be legal. The minimum needed for a General Court-Martial is five and for a special court-martial is three. See MCM R.C.M. 501(a). 3. Obtain the orders file, determine the next CMCO number, and update the orders IAW AR and AR NOTE: The orders file contains a list of previous CMCOs your command has used. They are numbered sequentially and at the start of each calendar year the number starts over at one. 4. Enter the heading of the order IAW AR paragraph Enter the notation, "Court-Martial Convening Order Number # was the last of the series for 20##" above the heading if it is the first order issued for the calendar year IAW AR Enter the order designation, date, and number IAW AR Enter the body of the order IAW the MCM and AR 27-10: a. List court members by precedence of rank and date of rank IAW MCM. b. Enter each member's rank (e.g., CPT), name, SSN, branch, and unit. 8. Enter the order authentication IAW AR Enter the distribution IAW AR Chapter 2 Military Justice Page 150

157 10. Enter the signature block IAW AR Forward the CMCO to the official who will sign it, and distribute the signed CMCO IAW AR Prepare a corrected CMCO, if necessary IAW the MCM and AR NOTE: A convening order for a General or Special Court-Martial shall designate the type of courtmartial, detail the members, and may designate where the court-martial will meet. For more information about convening orders see MCM, R.C.M MCM AR References Performance Measures: General Situation: You are the Brigade Paralegal NCOIC for 3rd Brigade, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Your Brigade Commander, COL Frank R. Myers, AR is a special court-martial convening authority. Situation 1: Today is 13 January The Brigade Commander has provided you with the following list of members for a special court-martial and directed that you prepare a CMCO for his signature. The last CMCO published was CMCO No. 86 dated 27 December Members Date of Rank MAJ BOB L. PRESLEY, , AR, HHC, 3 rd BDE 15 June 2010 CPT PAUL D. LAWRENCE, , AR, Co C, 2 nd Bn, 3 rd AR 16 April LT FRED FLINT, , IN, Co A, 3 rd Bn, 12 th IN 28 September 2010 MAJ BARNEY M. DUKE, , QM, HHC, 354 th BSB 20 January 2009 CPT TIM L. DAISEY, , AG, HHC, 3 rd Bn, 12 th 25 March 2008 Chapter 2 Military Justice Page 151

158 Requirement: Soldier s Training Manual Paralegal Specialist (27D) Using a blank sheet of 8 1/2-inch by 11-inch bond paper, prepare a CMCO to be published today. Prepare distribution IAW AR (Your office is required to keep a reference set of CMCOs.) See Appendix B-14a for the answers to this exercise. Situation 2: Today is 31 May The Brigade Commander has informed you that CPT Tim L. Daisey, , AG, HHC, 3 rd Bn, 12 th IN, is TDY. He wants to replace CPT Daisey with 1LT Bob L. Castor, , AR, Co C, 3 rd Bn, 3 rd AR, for the trial of SPC John M. Patrick, , Co A, 3 rd Bn, 12 th IN, only. He directed that you prepare a CMCO for the signature of the Brigade Adjutant, CPT Tracy H. Sharpe, AG. The last CMCO published was CMCO No. 1, dated 13 January 2011 (the order you are amending). Requirement: Using a blank sheet of 8 1/2-inch by 11-inch bond paper, prepare a CMCO to be published today. Prepare distribution IAW AR (Your office is required to keep a reference set of CMCOs.) See Appendix B-14b for the answers to this exercise. Chapter 2 Military Justice Page 152

159 Prepare and Process a Subpoena Condition: You are a Brigade Paralegal NCOIC working on a case that is getting ready to go to trial. The Trial Counsel for your Brigade has just handed you the witness list for the case and asked you to prepare the necessary subpoenas. Performance Steps: 1. Coordinate with the Trial Counsel or summary court-martial officer in preparing the subpoena. A subpoena may be issued by the summary court-martial officer or Trial Counsel of a Special or General Court-Martial to secure witnesses or evidence for that court-martial. (R.C.M. 703(e)(2)(c)). NOTE Civilian witnesses may be subpoenaed to appear, testify, and be examined before courts of inquiry. A court of inquiry and counsel for such court have the same powers with respect to obtaining the attendance of witnesses as a court-martial and the Trial Counsel of a court-martial (R.C.M. 703). A subpoena is not necessary if the witness appears voluntarily at no expense to the United States. Civilian employees of the Department of Defense may be directed by appropriate authorities to appear as witnesses in a court-martial as an incident of their employment. Appropriate travel orders may be issued for this purpose. 2. Fill out a DD Form 453 (Subpoena) in accordance with the instructions on the form. 3. Prepare a letter of instruction IAW the MCM when the subpoena is to be mailed to the witness. Explain where the witness must sign to show receipt of the subpoena and instructions to return the signed copy in the prepaid envelope provided. 4. A subpoena must be sent certified first class mail, return receipt requested. Restricted delivery may be used for formal service of subpoenas (R.C.M. 703(e)(2)(D) and Discussion). NOTE - The person who issued the subpoena should include a statement to the effect that the rights of the witness to fees and mileage will not be impaired by voluntary compliance with the request and that a voucher for fees and mileage will be delivered to the witness promptly on being discharged from attendance. 5. Ensure the subpoena will be served at least 24 hours before the time the witness will have to travel. 6. Ensure the witness receives, in addition to the subpoena, the following: a. Letter of instruction (if served by mail). b. Victim/Witness Information Packet (if not previously rendered). c. DD Form 453-1, Travel Order (if used). Chapter 2 Military Justice Page 153

160 d. Postage-paid envelope bearing a return address (if served by mail). e. Advance travel allowances IAW the MCM along with a copy of the payment vouchers. 7. Maintain in the case file a copy of the subpoena signed by the witness or, if the witness does not sign, a copy of the subpoena bearing a certificate of service or PS Form 3811 signed by the witness. NOTE There is a PS Form 3811 (Front & Back) in Appendix B-15. NOTE: There are times when witnesses are required, but no authority to subpoena (compel) them to appear exists. (Witnesses cannot be subpoenaed to appear at an Article 32 investigation nor can a subpoena be used to compel a civilian to travel outside the territorial limits of the United States.) Without subpoena power a witness can only be requested to appear. Witnesses requested to appear at a court-martial overseas are issued invitational travel orders by the Clerk of Court, U.S. Army Judiciary (see AR 27-10). MCM, Appendix 7-1 AR References Performance Measures: General Situation: You are a Paralegal working at the Office of the Staff Judge Advocate, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana Situation: Today is 18 October The Trial Counsel, CPT Tyronius Law, has directed you to prepare a DD Form 453 for a witness who is to appear in the GCM case of U.S. v. Martin. CPT Law has provided you with the following information: a. Witness: Mrs. Susan H. Parson, she is a U.S. Citizen but not an employee of the U.S. Government. b. Residence address: 254 Barracks Road, Waterville, IN c. Convening order: CMCO No. 1, HQ, 54th IN Div (Mech), dated 13 January d. Date, time, and place of proceeding: 0730, 2 November 2011, Building 3, Fort Atterbury, IN Chapter 2 Military Justice Page 154

161 e. Witness is to bring with her the video tape depicting PFC Samuel Martin entering the bank with a weapon that she recorded on the evening of 23 September The Trial Counsel will sign the subpoena today. Requirement: Prepare the appropriate items on the DD Form 453. See Appendix B-15 for the answers to this exercise. Chapter 2 Military Justice Page 155

162 Prepare and Process a Travel Order for a Witness Condition: You are a Brigade Paralegal NCOIC working on a case that is getting ready to go to trial. The Trial Counsel for your Brigade has just handed you the witness list for the case and asked you to prepare the necessary travel orders. Performance Steps: 1. Fill out a DD Form IAW the MCM Appendix Coordinate with your local installation finance, travel, and resource management office to get the proper modes of travel, witness fee amounts, fund site, and the signature block of the authorizing official (sources of information also include 28 U.S.C and the JFTR). 3. Ensure the Trial Counsel and authenticating official both sign the order. NOTE: The travel order number is maintained on a fiscal year basis. The first one of the year is number one and so on. For the fiscal year 2010 it would start out this way: , , and See the MCM, Appendix 7 for an example of the Travel Order. For information about civilian witness overseas travel orders see AR Paragraph MCM JFTR 28 U.S.C References Performance Measures: Situation: Traveling from: Waterville, Indiana Traveling to: Building 3, Fort Atterbury, IN Travel is by privately owned vehicle Witness has not been given a government request for transportation. Receipts for travel in excess of $15.00 are required. Not traveling to a high-cost area. Per Diem is $45.00/day Max Per Diem: $50.00/day Mileage rate:.50 cents/mile Witness attendance fee: $45.00/day Travel order number: , dated 29 Sep 2011 and issued by HQs, 54 th ID (M) Chapter 2 Military Justice Page 156

163 Inquiries addressed to CPT Tyronius Law, 445 Abbey Rd., Fort Atterbury, IN Accounting Citation is: Approving Official: CPT Tyronius Law, Trial Counsel Authenticating Official: Mr. Pen E. Pincher Requirement: Prepare a DD Form See Appendix B-16 for the answers to this exercise. Chapter 2 Military Justice Page 157

164 Prepare and Process a Voucher for Payment of Witness Condition: You are a Brigade Paralegal NCOIC supporting an ongoing case. The Trial Counsel for your Brigade has instructed you to prepare the payment vouchers for the witnesses involved in the case. Performance Steps: 1. Coordinate with the Trial Counsel, SCM, or Article 32 Investigating Officer to prepare the SF 1157 and SF PREPARATION OF SF 1157 NOTE: The timely advance or payment of travel allowances and/or fees is very important. Any person subpoenaed to testify at a court-martial is entitled to travel allowances and attendance fees IAW the MCM. Witnesses requested to appear at a court-martial overseas are issued invitational travel orders by the Clerk of Court, U.S. Army Judiciary, (see AR 27-10) and are entitled to travel allowances and attendance fees. Witnesses requested to appear at Article 32 Investigations are issued invitational travel orders and are entitled to travel allowances (not attendance fees). Attendance overseas by local nationals is obtained through cooperation of the host nation; they are also paid fees and allowances. 2. Enter "ADVANCE TRAVEL ALLOWANCES" centered above the title of the SF Form 1157, if the voucher is being prepared for the advance payment of a witness. 3. PART I, ITEM 1 - Enter the general information as follows: a. ITEMs a through c - Self-explanatory. b. ITEM d - The case name (e.g., U.S. v. Davis). c. ITEM e - The case number. If there is no case number, enter "NA." d. ITEM f - The geographical location of the trial or Article 32 Investigation. 4. PART I, ITEM 2 - Enter the travel and attendance information as follows: a. Enter "NA" after ITEM 2 and line out ITEMs 2a through 2c if the voucher is for an advance payment. b. Enter the appropriate dates of travel and attendance if the voucher is for final payment. If the travel or attendance was accomplished in one day, complete ITEM 2 as follows: "From 13 January 2010 To " Chapter 2 Military Justice Page 158

165 c. If the travel or attendance was accomplished in two or more consecutive days, complete ITEM 2 as follows: "From 13 January 2010 To 14 January 2010" 5. PART I, ITEM 3 - Complete the "Certification" as follows: a. Delete or strike through the second sentence of the certification. b. Delete or strike through the words "attended in the case or matter indicated and" from the first sentence if the voucher is for an advance payment. c. Enter the signature block of the certifying officer and the date in the space provided. 6. PART II, COLUMN TITLES - If the voucher is for an advance payment, change the column titled "Amount Claimed" in ITEMs 1 and 2 to "Amount Paid." 7. PART II, ITEM 1 - Complete the attendance fees information as follows: a. Enter the correct rate, number of days, and total. b. If the voucher is for a witness at an Article 32 Investigation, enter "None" in the "Totals" column. c. If the voucher is for an advance payment, the witness is only authorized one days worth of attendance fee. 8. PART II, ITEM 2 - If Government transportation was provided, enter "None" in the "Totals" column for ITEM 2. If a privately owned vehicle (POV) was used, indicate the type of vehicle and enter the following information: a. ITEM 2a - Enter the mileage rate IAW the JTR, Volume 2, the round trip mileage from the witness' residence to the court location, and the computed amount claimed/paid. b. ITEM 2b - Enter the mileage rate IAW the JTR, Volume 2, total round trip mileage from the witness' hotel/motel to the court, and the computed amount claimed in ITEM 2b. c. If the voucher is for an advance payment, enter "NA" in the "Amount Paid" column as mileage allowance to and from the hotel/motel and the court is not payable in advance. d. Total mileage allowance in the "Totals" column. Chapter 2 Military Justice Page 159

166 9. PART II, ITEM 3 - Enter the amount of subsistence allowance: a. Enter the per diem or high rate geographical area rate and the meals and lodging rates IAW the JTR, in the spaces provided. b. Enter the number of days the witness was required to be away from their place of residence to attend in ITEM 3a and the number of days lodging required in ITEM 3b. Compute the amount claimed and totals columns. c. Enter "None" in the "Totals" column if the voucher is for an advance payment as a witness is NOT paid an advance subsistence allowance. 10. PART II, ITEM 4 - Enter the amount of miscellaneous allowances claimed by the witness, such as common carrier expenses and parking fees, and itemize them in PART II, ITEM 8. Obtain a receipt from the witness for any expenses over $25.00 and attach them to the voucher. Enter "None" in the "Totals" column if the voucher is for an advance payment as miscellaneous allowances are NOT authorized for an advance payment. 11. PART II, ITEM 5 - Compute the total and enter it in the space provided If the voucher is for an advance payment, change the words "Total Amount Claimed" to "Total Amount Paid." 12. PART II, ITEM 6 - Enter the amount of any advance payment and the voucher number by which the advance was accomplished. Delete the line if the voucher is for an advance payment. 13. PART II, ITEM 7 - Subtract the amount in ITEM 6 from the amount in ITEM 5 and enter the difference in ITEM 7. If the voucher is for an advance payment, change the words "Net Amount Claimed by Witness" to "Net Amount Paid to Witness" and enter the amount from ITEM PART II, ITEM 8 - Enter the Itemized list of miscellaneous expense claimed (ITEM 4) in the space provided. Enter "NA" if the voucher is for an advance payment. 15. PART II, ITEM 9 - Complete the certification by deleting inapplicable words, and ensure the witness has signed and dated the form. If the voucher is for an advance payment, enter "ADVANCE TRAVEL ALLOWANCES" in lieu of the witnesses signature. 16. Attach three (3) copies of SF PREPARATION OF SF Enter "DEPARTMENT OF THE ARMY" on the line following "U.S." 18. Enter the name of the court or board on the line indicated. (e.g., "Special Court- Martial" or "Article 32 Investigation"). Chapter 2 Military Justice Page 160

167 19. Enter the geographical location on the "Location" line. 20. Enter the date(s) of the court or investigation. If the voucher is for an advance payment, delete the words "from" and "to", and enter the scheduled date of trial or investigation. 21. Enter the title of the case (e.g., U.S. v. Barth). 22. Enter the number of payees (witnesses) and sheets (SF 1157) attached. Attach an SF 1157 for each witness. 23. Enter the total amount of all attached SFs 1157 in the space provided. 24. Enter the signature block of the certifying officer on the Title line and ensure the form is dated and signed. 25. Enter the correct accounting classification. 26. Attach three (3) copies of SF Attach a copy of the subpoena, invitational travel order, or any other document requiring or requesting the appearance of the witness, along with all receipts provided by the witness to the SF Attach the SF 1157 for each witness and a copy of the CMCO(s) to the SF 1156 and forward to finance. 28. Coordinate with the victim/witness liaison and the finance office to ensure prompt payment of the witness (i.e., before the witness departs the trial location). MCM JFTR JTR AR AR DoDFMR AR AR Performance Measures: References General Situation: You are a Paralegal working at the Office of the Staff Judge Advocate, 54th Infantry Division (Mechanized), Fort Atterbury, Indiana Chapter 2 Military Justice Page 161

168 Situation: Soldier s Training Manual Paralegal Specialist (27D) Today is 7 February The Trial Counsel, CPT Tyronius Law, has directed you to prepare the necessary vouchers for an advance payment of a witness who is to appear in the GCM case of U.S. v. McKnabb. CPT Law has provided you with the following information: a. Witness: Mr. Marion Newman, (U.S. Citizen, not an employee of the U.S. Government). b. Residence address: 529 Cowboy Way, Arlington, TX c. Convening order: CMCO No. 1, HQ, 54th IN Div (Mech), dated 13 January d. Date, time, and place of proceeding: 0730, 12 February 2011, Building 3, Fort Atterbury, IN However, the Trial Counsel would like the witness to arrive a day prior to the hearing and will be allowed to stay in a hotel the day prior and the day of the hearing (two days hotel and two days attendance fees). e. Witness is to bring with him the bank records for account number ######### for the months of June and July f. Travel and attendance information: (1) One-way mileage from above residence: 925 miles. (2) Mileage rate per mile (for POV travel): $0.50 (3) Attendance fee: $45.00 per day. request. (4) Mr. Newman did not receive any other cash advance or transportation (5) Mr. Newman is the only payee. (6) Fund citation: P S09419 ( N00013) JAG 69. The Trial Counsel will sign the vouchers today. Requirement: Prepare the appropriate items on the SF Form 1156 and SF Form See Appendix B-17a for the answers to this exercise. Chapter 2 Military Justice Page 162

169 Situation 2: Soldier s Training Manual Paralegal Specialist (27D) Today is 13 February CPT Law has directed that you prepare the necessary vouchers for the final payment of the witness in Situation 1 and has provided you with the following information: Travel and attendance information is the same as in Situation 1, except the following: a. Date of travel from the residence to case location: 11 February b. Date of travel from case location to residence: 13 February c. Dates of attendance: From 11 to 12 February d. Mileage from court to the hotel and return: 10 miles. e. Per diem rate: $95.00 per day ($65.00 lodging and $30.00 meals and incidentals). f. Cost of lodging (receipt furnished): $ IN. g. Mr. Newman claimed $5.00 for a parking fee at the Residence Inn, Indianapolis, h. Mr. Newman was paid a cash advance (Situation 1) by voucher number i. Mr. Newman is the only payee. The Trial Counsel will sign the vouchers today. Requirement: Prepare the appropriate items on the SF Form 1156 and SF Form See Appendix B-17b for the answers to this exercise. Chapter 2 Military Justice Page 163

170 Prepare a Findings Worksheet Condition: You are a Paralegal working on a court-martial case. You are putting the final touches on the case that is going to trial next week. Your Trial Counsel has asked you to prepare the findings worksheet. Performance Steps: 1. Prepare a findings worksheet IAW with the MCM, Appendix 10 and DA PAM 27-9, Appendix B. 2. It must be tailored for each case to ensure that the worksheet allows the court members to reach findings on all theories of the case which have been raised by the evidence. 3. Counsel for both sides should consent to the findings worksheet on the record before it is given to the court members. This is especially important in cases involving lesserincluded offenses. 4. The findings worksheet should be made as simple as possible. 5. The President of the panel (if applicable) should sign the findings worksheet. NOTE: The President of a panel is the highest ranking member. NOTE: The Military Judge should be provided sufficient time to review the findings worksheet prior to deliberation by the members. Appendix B in DA PAM 27-9 provides examples of what a findings worksheet could look like. MCM DA Pam 27-9 References Performance Measures: Situation: Today is 11 October Your Trial Counsel is doing final preparations for a Special Court-Martial that will take place on 18 October 2010 and he has asked you to prepare a findings worksheet. Use the following information to create a findings worksheet. The accused is SPC Jerry J. Phillips, , Co C, 3 rd Bn, 3 rd AR, 54 th ID (Mech), Fort Atterbury, IN Chapter 2 Military Justice Page 164

171 SPC Phillips was charged with the following offenses: Charge I: Article 86, UCMJ. Specification 1: In that SPC Jerry J. Phillips, U.S. Army, did, on or about 16 Jun 10, without authority, absent himself from his unit, to wit: Co C, 3 rd Bn, 3 rd AR, and did remain so absent until on or about 14 Jul 10. Specification 2: In that SPC Jerry J. Phillips, U.S. Army, did on or about 16 Jul 10, without authority, absent himself from his unit, to wit: Co C, 3 rd Bn, 3 rd AR, and did remain so absent until on or about 19 Sep 10. Charge II: Article 91, UCMJ. Specification 1: In that SPC Jerry J. Phillips, U.S. Army, at Fort Atterbury, IN, on or about 20 Sep 10, was disrespectful in language toward MSG Harry Potter, a noncommissioned officer, then known by the said SPC Jerry J. Phillips, U.S. Army, to be a noncommissioned officer, who was then in the execution of his office, by saying to him, why don t you go bother someone else you dumb wizard, or words to that effect. Specification 2: In that SPC Jerry J. Phillips, U.S. Army, at Fort Atterbury, IN, on or about 22 Sep 10, was disrespectful in language toward 1SG Troy Aikman, a noncommissioned officer, then known by the said SPC Jerry J. Phillips, U.S. Army, to be a noncommissioned officer, who was then in the execution of his office by saying to him, I ain t doing a damn thing you tell me First Sergeant, or words to that effect. Charge III: Article 112a, UCMJ. Specification: In that SPC Jerry J. Phillips, U.S. Army, did, at or near Fort Atterbury, IN, on or between 20 Sep 10 and on or about 30 Sep 10, wrongfully use a controlled substance, to wit: cocaine. The Trial Counsel, Defense Counsel, and Military Judge have agreed that no lesser included offenses will be included on the findings worksheet. Requirement: Prepare a Findings Worksheet dated 18 October See Appendix B-18 for the answers to this exercise. Chapter 2 Military Justice Page 165

172 Prepare a Sentence Worksheet Condition: You are a Paralegal working on a court-martial case. You are putting the final touches on the case that is going to trial next week. Your trial counsel has asked you to prepare the sentence worksheet. Performance Steps: 1. Prepare a sentence worksheet IAW the MCM, Appendix 11 and DA PAM 27-9, Appendix C. 2. The sentence worksheet covers only those authorized punishments. 3. The sentence worksheet must be carefully reviewed by the Military Judge before it is given to the court members. The samples should be modified to ensure that the court is not given the opportunity to adjudge an unlawful sentence or one that is inappropriate. NOTE: Counsel for both sides should consent to the sentence worksheet on the record prior to it being given to the court members. In a capital case, the court must ensure that the aggravating factors listed on the sentence worksheet are the same factors of which the accused was given notice. When the court members return from deliberations, the Military Judge must review the sentence worksheet to ensure that the sentence is lawful and in proper form. The Military Judge must have the President of the panel correct any mistakes or omissions prior to announcement of the sentence. MCM DA Pam 27-9 References Performance Measures: Situation: Today is 11 October Your Trial Counsel is doing final preparations for a Special Court-Martial that will take place on 18 October 2010 and he has asked you to prepare a sentence worksheet. The accused is SPC Jerry J. Phillips, , Co C, 3 rd Bn, 3 rd AR, 54 th ID (Mech), Fort Atterbury, IN The court has been authorized to adjudge a bad-conduct discharge. SPC Phillips was charged with the following offenses: Chapter 2 Military Justice Page 166

173 Charge I: Article 86, UCMJ. Specification 1: In that SPC Jerry J. Phillips, U.S. Army, did, on or about 16 Jun 10, without authority, absent himself from his unit, to wit: Co C, 3 rd Bn, 3 rd AR, and did remain so absent until on or about 14 Jul 10. Specification 2: In that SPC Jerry J. Phillips, U.S. Army, did on or about 16 Jul 10, without authority, absent himself from his unit, to wit: Co C, 3 rd Bn, 3 rd AR, and did remain so absent until on or about 19 Sep 10. Charge II: Article 91, UCMJ. Specification 1: In that SPC Jerry J. Phillips, U.S. Army, at Fort Atterbury, IN, on or about 20 Sep 10, was disrespectful in language toward MSG Harry Potter, a noncommissioned officer, then known by the said SPC Jerry J. Phillips, U.S. Army, to be a noncommissioned officer, who was then in the execution of his office, by saying to him, why don t you go bother someone else you dumb wizard, or words to that effect. Specification 2: In that SPC Jerry J. Phillips, U.S. Army, at Fort Atterbury, IN, on or about 22 Sep 10, was disrespectful in language toward 1SG Troy Aikman, a noncommissioned officer, then known by the said SPC Jerry J. Phillips, U.S. Army, to be a noncommissioned officer, who was then in the execution of his office by saying to him, I ain t doing a damn thing you tell me First Sergeant, or words to that effect. Charge III: Article 112a, UCMJ. Specification: In that SPC Jerry J. Phillips, U.S. Army, did, at or near Fort Atterbury, IN, on or between 20 Sep 10 and on or about 30 Sep 10, wrongfully use a controlled substance, to wit: cocaine. Requirement: Prepare a Sentence Worksheet dated 18 October See Appendix B-19 for the answers to this exercise. Chapter 2 Military Justice Page 167

174 Prepare a Pre-Trial Agreement Condition: You are a Paralegal serving in the Trial Defense Services Office. One of the Defense Counsel you support has asked you assist in drafting a Pre-Trial Agreement for an upcoming case. Performance Steps: 1. Determine if the accused has agreed to plead guilty or entered into a stipulation of fact pertaining to one or more charges and specifications. 2. Determine if the accused is pleading guilty on their own free will. 3. Ascertain from the accused and/or Defense Counsel what concessions are expected to be made from the convening authority. 4. If the case requires an Article 32(b) Investigation, determine if the accused is willing to waive that right. NOTE The accused may have already waived the Article 32 Investigation or the Offer to Plea Guilty (OPG) may be after the Article 32 Investigation has been completed. 5. Ensure the accused is not deprived of the following rights (MCM, R.C.M. 705 (c)(1)(b)): a. The right to counsel. b. The right to due process. c. The ability to challenge the jurisdiction of the court. d. The right to a speedy trial. e. The right to complete the sentencing process. f. The right to effective exercise of post-trial and appellate. 6. Determine if the accused is willing to be tried by Military Judge alone as opposed to a trial by members. 7. Determine what punishment the accused is willing to accept in exchange for a plea of guilty (if any). NOTE: R.C.M. 705 in the MCM covers pre-trial agreements. Chapter 2 Military Justice Page 168

175 Reference MCM Performance Measures: Situation: CPT William E. Latone, Jr. has preferred charges against a member of his command. The charges were preferred on 15 October SSG Anthony R. Staubach, , U.S. Army, Co B, 3 rd Bn, 3 rd AR, 54 th IN DIV (Mech), Fort Atterbury, IN , has been charged with the following offenses: Charge I: Violation of the UCMJ, Article 90. Specification 1: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN, on or about 13 Oct 10, strike MAJ Roy Williams, his superior commissioned officer, then known by the said SSG Anthony R. Staubach, to be his superior commissioned officer, who was then in the execution of his office, in the face with his hand. Specification 2: In that SSG Anthony R. Staubach, U.S. Army, having received a lawful command from MAJ Roy Williams, his superior commissioned officer, then known by the said SSG Anthony R. Staubach, to be his superior commissioned officer, to have no contact with Mrs. Sarah Parsons, or words to that effect, did, at Fort Atterbury, IN, on or about 13 Oct 10, willfully disobey the same. Charge II: Violation of the UCMJ, Article 112. Specification: In that SSG Anthony R. Staubach, U.S. Army, was, at Building 1, Fort Atterbury, IN, on or about 10 Oct 10, found drunk while on duty as charge of quarters. Charge III: Violation of the UCMJ, Article 128. Specification 1: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN, on or about 12 Oct 10, unlawfully strike Mrs. Sarah Parsons on the top of the head with a shoe. Specification 2: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN, on or about 12 Oct 10, unlawfully strike Mrs. Sarah Parsons on the leg with plastic baseball bat. Chapter 2 Military Justice Page 169

176 Specification 3: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN, on or about 12 Oct 10, unlawfully strike Mrs. Sarah Parsons in the stomach with his fist. Charge IV: Violation of the UCMJ, Article 134. Specification 1: In that SSG Anthony R. Staubach, U.S. Army, did at Fort Atterbury, IN, on or about 10 Oct 10, while standing in the window at his on-post quarters located at 1234 Quarters Drive, Fort Atterbury, IN , willfully and wrongfully expose in an indecent manner to public view his buttocks. Specification 2: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN, on or about 14 Oct 10, while accompanying his organization on a march, wrongfully straggle. Specification 3: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN on or about 14 Oct 10, wrongfully communicate certain language, to wit: I put an improvised explosive device at the PX and I m going to blow the place up, which language constituted a threat to harm a person or property my means of an explosive. Specification 4: In that SSG Anthony R. Staubach, U.S. Army, did, at Fort Atterbury, IN, on or about 12 Oct 10, unlawfully enter the house of 1SG Jason Parsons. The Company and Battalion Commanders have recommended trial by General Court- Martial. The Brigade Commander has ordered that an Article 32(b) Investigation be conducted. SSG Staubach has been meeting with his assigned Defense Counsel, CPT Jonathan Public, USATDS, and has decided to submit a Pre-Trial Agreement to the convening authority. SSG Staubach has decided to plead guilty to the following offenses: Charge I: Guilty. Specification 1: Guilty. Specification 2: Guilty. Charge II: Not guilty. The Specification: Not guilty. Charge III: Guilty Specification 1: Guilty. Specification 2: Guilty. Specification 3: Guilty, except the words in the stomach substituting therefor the words in the shoulder. To the excepted words: Not Guilty; To the substituted words: Guilty. Charge IV: Guilty Specification 1: Guilty. Specification 2: Guilty. Specification 3: Guilty. Specification 4: Not guilty. Chapter 2 Military Justice Page 170

177 SSG Staubach, after consulting with his attorney, has agreed to waive the Article 32 Investigation and agreed to be tried by Military Judge alone as part of a Pre-Trial Agreement. In return for his plea of guilty, SSG Staubach wants the convening authority to disapprove any confinement in excess of seven months. Additionally, SSG Staubach wants the convening authority to refer this case to a Special Court-Martial. SSG Staubach also is willing to enter into a stipulation of fact concerning the charges and specifications that he has agreed to plead guilty to. The convening authority is the Commander, 54 th Infantry Division (Mechanized), Major General James R. Franklin. Requirement: Draft a Pre-Trial Agreement. See Appendix B-20 for the answers to this exercise. Chapter 2 Military Justice Page 171

178 Draft a Stipulation of Fact Condition: You are a Paralegal serving in the Trial Defense Services Office. One of the Defense Counsel you support has asked you to draft a stipulation of fact for an upcoming case. Performance Steps: 1. Ensure the accused understands the purpose of a stipulation of fact. 2. Determine from the accused and/or Defense Counsel exactly what information is being provided in the stipulation of fact. 3. If the accused is providing the stipulation of fact in response to an offer to plead guilty, ensure that the information provided matches the necessary elements of the charge(s) and specification(s) for which the accused is pleading guilty. 4. Include a statement to the effect of the accused was at all times during the commission of the above listed offenses on active duty with the U.S. Army. NOTE: The parties may make an oral or written stipulation to any fact, the contents of a document, or the expected testimony of a witness. Although the decision to stipulate should ordinarily be left to the parties, the Military Judge should not accept a stipulation if there is any doubt of the accused s or any other party s understanding of the nature and effect of the stipulation. Stipulations are covered by R.C.M. 811 in the MCM. MCM Reference Performance Measures: Situation: The situation used for this exercise is a continuation of the situation used for the exercise Draft Pre-Trial Agreement. The Trial Counsel is CPT Tyronius Law, 3 rd Brigade, 54 th Infantry Division (Mechanized). Use the following information to draft a stipulation of fact. Chapter 2 Military Justice Page 172

179 1. MAJ Williams gave SSG Staubach a no contact order in regards to Mrs. Parsons on 2 October On 13 October 2010, MAJ Williams witnessed SSG Staubach and Mrs. Parsons having lunch in the PX. MAJ Williams confronted SSG Staubach and ordered him to report to the Battalion Headquarters immediately. In a fit of rage, SSG Staubach stood up and threw a wicked right hook which hit MAJ Williams in the face with a closed fist. 2. On the evening of 10 October 2010, CSM Burrowes drove to the Battalion barracks to make sure things were safe and sound. Upon entering the building CSM Burrowes approached SSG Staubach, who was on CQ duty at the time, and immediately noticed a strong odor of alcohol on SSG Staubach s breathe. CSM Burrowes took SSG Staubach to the MP station and had them give him a breathalyzer test in which SSG Staubach blew a.051%. 3. On the evening of 12 October 2010, SSG Staubach and Mrs. Parsons were drinking Jack Daniel s at her on-post residence. At some point SSG Staubach and Mrs. Parsons began arguing and Mrs. Parsons called SSG Staubach a worthless no good man. SSG Staubach got upset, took off his running style sports shoe and smacked Mrs. Parsons on top of her head with it. Mrs. Parsons began yelling loudly at SSG Staubach and enraged him even further. SSG Staubach picked up a child s plastic style baseball bat and hit Mrs. Parsons in the front portion of her left leg with it. The situation was clearly out of control. Mrs. Parsons yelled obscenities at SSG Staubach and Mrs. Parsons claims SSG Staubach punched her in the stomach with a closed fist. 4. SSG Staubach began drinking early in the morning on 10 October Mrs. Christina Marshall, who is the next door neighbor of SSG Staubach and also a good friend to SSG Staubach s soon to be ex-wife, was walking by in front of SSG Staubach s quarters. SSG Staubach looked directly at Mrs. Marshall and when they made eye contact she gave him a cold stare and he knew she didn t like him. SSG Staubach turned his back to the window and dropped his pants and his underwear exposing his buttocks to Mrs. Marshall. 5. On 14 October 2010, Company B, 3 rd Battalion, 3 rd Armor, conducted a 12-mile forced road march. SSG Staubach had been very upset with his chain of command for the myriad of disciplinary problems he was having. SSG Staubach realized his chances for advancement in the Army were already slim, so he decided he would try and upset the chain of command by falling out of the road march. He was almost 700 meters behind the straggle control NCO when he refused to put any effort into catching up with the unit. His attitude was terrible and he obviously didn t care about anything. Chapter 2 Military Justice Page 173

180 6. After returning from the road march, SSG Staubach went to get some lunch at the PX. When he went into the PX, he saw Mrs. Parsons and her husband (1SG Parsons) having lunch. SSG Staubach became very upset and jealous. SSG Staubach went outside of the PX and used his cell phone to call the Provost Marshall s Office. SSG Staubach told the MPs that he had placed an improvised explosive device in the PX and that he was going to blow the place up. The MPs having caller ID on their phones were able to trace the call to SSG Staubach. Additionally, when 1SG and Mrs. Parsons came outside of the PX they saw SSG Staubach speeding out of the PX parking lot. 7. On the evening of 12 October 2010, SSG Staubach had gone to Mrs. Parsons house to drink some Jack Daniel s with her. When he got there nobody was home so he let himself in the back door. About an hour later Mrs. Parsons came home and the two of them proceeded to get drunk. Requirement: Draft a stipulation of fact using this scenario and the one listed in the Draft Pre-Trial Agreement exercise. See Appendix B-21 for the answers to this exercise. Chapter 2 Military Justice Page 174

181 Prepare and Process a Request for Chapter 10, Discharge in Lieu of Trial by Court-Martial Condition: You are a Paralegal serving in the Trial Defense Services Office. One of the Defense Counsel you support has asked you to prepare a Chapter 10 request. Performance Steps: 1. The Soldier submitting the request must have charges preferred or referred against them. 2. The charges that the Soldier has had preferred/referred against them must have a punishment authorized to include a bad-conduct or dishonorable discharge. 3. The Soldier s written request will include an acknowledgment that they understand the elements of the offense/s charged and they are guilty of the charge/s or of a lesser included offense/s therein contained which also authorizes the imposition of a punitive discharge. 4. The consulting counsel will sign as a witness, indicating that they are a commissioned officer of The Judge Advocate General s Corps, unless the request is signed by a civilian counsel representing the Soldier. NOTE: If the accused refused to consult with counsel, ensure a statement to that effect is included IAW AR , Chapter 10. Submitting a Chapter 10 request does not stop the proceedings of the case. 5. The discharge request must be reviewed by the Office of the Staff Judge Advocate prior to approval by the separation authority. 6. Commanders in the Soldier s chain of command will recommend either approval or disapproval of the request for discharge and state the reasons for the recommendation. If approval is recommended, the type discharge to be issued will be recommended also. 7. The following data will accompany the request for discharge: a. A copy of the Courts-Martial Charge Sheet (DD Form 458). b. Report of medical examination and mental status evaluation, if conducted. c. A complete copy of all reports of investigation. d. Any statement, documents, or other matter considered by the Commander in making their recommendation, including any information presented for consideration by the Soldier or consulting counsel. Chapter 2 Military Justice Page 175

182 e. A statement of any reasonable ground for belief that the Soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal. When appropriate, evaluation by a psychiatrist will be included. f. When a Soldier is under a suspended sentence of discharge, a copy of the Court- Martial orders, or a summary of facts that relate to the conduct upon which the request is predicated, will be forwarded. 8. A medical examination is not required but may be requested by the Soldier under AR , Chapter 8. NOTE Some installations may require a medical examination for all separations being processed. Check local procedures for more details. NOTE - A request for discharge in lieu of trial by Court-Martial will be submitted in the format shown in figure 10 1, AR AR AR AR Performance Measures: Situation: References Today is 27 Sep SPC John B. Buzzworthy, , Company A, 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, IN , wants to submit a request for discharge in lieu of trial by court-martial. SPC Buzzworthy is being charged with wrongful distribution of a controlled substance (cocaine) on 21 June 2010, and AWOL from 19 June 2010 to 26 July Charges have been preferred. SPC Buzzworthy refuses to consult with an attorney and he is not submitting any statements. The chain of command is as follows: CPT Roger A. Carmel, AR, Commander, Company A, 3 rd Battalion, 3 rd Armor LTC Gary E. Pike, AR, Commander, 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54 th Infantry Division (Mechanized) COL Frank R. Myers, AR, Commander, 3 rd Brigade, 54 th Infantry Division (Mechanized) Major General James R. Franklin, Commander, 54 th Infantry Division (Mechanized) Requirement: Prepare a Chapter 10 request and chain of command recommendation memoranda. See Appendix B-22 for the answers to this exercise. Chapter 2 Military Justice Page 176

183 SECTION IV: Court-Martial Post-Trial Prepare a Report of Result of Trial Condition: You are a Paralegal and a case you have been providing support for has just ended. The Trial Counsel has directed that you prepare a Report of Result of Trial on a DA Form 4430, to reflect the proceedings. Performance Steps: 1. Address the report to the convening authority. Include at least two elements of the convening authority's unit, geographical location, and zip code. 2. ITEM 1 - Enter the accused's rank, name (LAST, First M.), SSN, and unit. Include at least two elements of the accused's unit, geographical location, and zip code. 3. ITEM 2 - Enter the following: a. Type of Court-Martial (e.g., Summary, Special, and General). b. Date(s) of trial. c. Geographical location of the trial. d. Convening order number(s), issuing Headquarters, and the date(s) of the CMCO(s) or, if trial is by Summary Court-Martial, amend form as appropriate and enter the date of detail of the Summary Court-Martial from the referral on Part V, DD Form ITEM 3 - Enter the following: a. Charge numbers using roman numerals. b. Article(s) of the UCMJ. c. Specification numbers, if any. d. Summary of offense(s). e. Respective pleas and findings or other disposition. 5. ITEM 4 - Enter the sentence of the Court-Martial. If trial resulted in an acquittal, enter "NA." 6. ITEM 5 - Enter the date sentence was adjudged. Chapter 2 Military Justice Page 177

184 7. ITEM 6 - Enter the contents of the pre-trial agreement concerning sentence, if any. 8. ITEM 7 - Enter the number of days the accused was in pre-trial (pre-sentence) confinement, if any. If none, enter "NA." 9. ITEM 8 - Enter the number of days of judge ordered administrative credit for illegal pretrial (pre-sentence) confinement or restriction found tantamount to confinement, if any. If none, enter "NA." 10. ITEM 9 - Enter the number of days of total pre-trial (pre-sentence) confinement credit towards post-trial confinement if any. If none, enter "NA." 11. ITEM 10 - Enter the name(s) and SSN(s) of companion cases or co-accused, if any. If none, enter "NA." 12. ITEM 11 - Determine whether DNA processing is or is not required IAW with 10 U.S.C ITEM 12 - Determine whether this conviction requires registration as a sex offender IAW 42 U.S.C NOTE - A qualifying military offense is a felony or sexual offense determined by the Secretary of Defense to be a qualifying military offense for the purposes of 10 USC section AR 27-10, Chapter 24 covers the requirements to register sex offenders IAW 42 U.S.C Summary Court- Martial convictions are not considered a qualifying military offense. 14. Enter a list of copies-furnished (CF) addressees. 15. Enter the name (capitalized), rank, and branch of the Trial Counsel or the Summary- Court-Martial Officer. NOTE You will notice that it asks for Branch of Service for the Trial Counsel or Summary Court- Martial Officer. This is a DA Form (Army Form), therefore put the officers branch (e.g. JA, AR, IN, etc...) for this block. 16. Make sufficient copies for copies-furnished addressees after the form is signed by the Trial Counsel or Summary Court-Martial Officer. Forward the original to the convening authority. See AR for distribution. 17. Provide the guard/escort with a copy of the DA Form 4430 if the accused was sentenced to confinement (not deferred). NOTE - You should ensure that a copy of the DA Form 4430 is expeditiously provided to the finance and accounting office (FAO) in any case involving a reduction in rank or forfeiture of pay or fine. AR 27-10, Paragraph 5-30 covers the Report of Result of Trial. Chapter 2 Military Justice Page 178

185 AR MCM Post-Trial Handbook References Performance Measures: General Situation: You are a Paralegal in 1 st Brigade, 54 th Infantry Division (Mechanized) and a General Court-Martial you are supporting has just finished. The Trial Counsel, CPT W. D. Jamison, has directed you to prepare a Report of Result of Trial (DD Form 4430). The convening authority is the Commander, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana Situation: Today is 2 November You just completed recording the General Court-Martial of PFC Darren McFadden, , Company A, 1 st Battalion, 12 th Infantry, Fort Atterbury, Indiana Use the following extract of pertinent data from the courtmartial to prepare the form: a. Convened by: Court-Martial Convening Order Number 1, Headquarters, 54 th Infantry Division (Mechanized), dated 13 June 2010, as amended by Court-Martial Convening Order Number 2, Headquarters, 54 th Infantry Division (Mechanized), dated 31 October b. Offenses, pleas, and findings: Charge I - Art 128: Aggravated assault inflicting a deep gash on 25 September Plea: Guilty. Finding: Guilty. Charge II - Art 134: Kidnapping on 19 September Plea: Guilty. Finding: Guilty. Chapter 2 Military Justice Page 179

186 c. Sentence: To be confined for six years, total forfeiture of all pay and allowances, to be reduced to Private (E1), and a Bad-Conduct Discharge. d. Contents of pre-trial agreement pertaining to sentence: None. e. The accused was placed in pre-trial confinement on 25 September 2010 and remained there until trial. The Military Judge granted 37 days of administrative credit toward the sentence of confinement. f. There are no companion cases or co-accused. g. DNA processing is required. h. Sex offender registration is not required. i. Copies of DA Form 4430 will be furnished to the following: Cdr, Co A, 1 st Bn, 12 th IN; Cdr, 1 st Bn, 12 th IN, Cdr, 1 st Bde, 54 th ID (Mech), Cdr, 54 th IN DIV (Mech), SJA, 54 th IN DIV (Mech), Confinement Facility (CF), Service Member, Defense Counsel, FAO, PSB. Requirement: Prepare a DA Form See Appendix B-23 for the answers to this exercise Chapter 2 Military Justice Page 180

187 Prepare and Process a Soldier for Post-Trial Confinement Condition: You are a Paralegal and the case you have been assisting the Trial Counsel with has just finished and the Soldier was sentenced to one year confinement. Another bad guy is off the street and now you have to prepare the Soldier for post-trial confinement. Performance Steps: 1. Properly fill out DD Form 2707, including the medical exam. NOTE - Medical certificate information will be completed at the detention facility IAW AR paragraph 10-5(b)(2). For more information about how to fill out the DD Form 2707, see Appendix B Properly fill out or obtain from your victim witness coordinator DD Form 2704 Witness Certification and Election Concerning Inmate Status and DD Form 2705 Victim/Witness Notification of Inmate Status. NOTE There are examples of the DD Forms 2704 & 2705 in Appendix B Properly fill out DA Form 4430 Report of Result of Trial IAW AR Ensure the unit Commander has had the inmate's military clothing and personal property inventoried IAW AR and AR Ensure the inmate's unit Commander has coordinated the necessary transportation and escort(s). Ensure the escorts are briefed by the MPs on their duties when they sign for their equipment (hand cuffs and leg irons). 6. Ensure the following documents are forwarded to the confinement facility with the inmate: a. DD Form 2707 (original and one copy). b. DA Form 3078 or list of clothing items transferred with the accused (AR ). NOTE See Appendix B-8 for an example of DA Form c. DA Form 4430 Report of Result of Trial. d. DD Form 2704 Victim/Witness Certification and Election Concerning Inmate Status. e. DD Form 2705 Victim/Witness Notification of Inmate Status. Chapter 2 Military Justice Page 181

188 f. Inventory of personal property and excess military clothing retained at the unit for safekeeping IAW AR NOTE Coordinate with the confinement facility for a list of required documents. 7. Ensure the escort obtains a signed copy of DD Form 2707 with the confinement officer's or authorized representative's "Receipt for Prisoner." NOTE See Appendix B-8 for an example of DD Form AR AR AR AR AR Post-Trial Handbook Performance Measures: Situation: References Today is 29 October You have just received guidance from your Trial Counsel to prepare a confinement order for SPC Alex Rodriguez, , Headquarters and Headquarters Company, 2 nd Battalion, 12 th Infantry, 1 st Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana This punishment is the result of a conviction at a Special Court-Martial. SPC Rodriguez was found guilty of the following offenses: Charge: Article 126. Specification: In that SPC Alex Rodriguez, U.S. Army, did, at Fort Atterbury, Indiana, on or about 14 June 2010, willfully and maliciously set on fire an inhabited dwelling, to wit: Building 1667, the barracks belonging to Headquarters and Headquarters Company, 2 nd Battalion, 12 th Infantry, the property of the U.S. Army, of a value of about $650, The sentence adjudged today, is confinement for one year and reduction to Private (E1). CPT W. D. Jamison, the Brigade Trial Counsel, will be signing the confinement order today at 1530 hours. MAJ Benjamin Pierce, the Senior Trial Counsel, will be conducting the legal review today. Requirement: Prepare DD Form 2707 for CPT Jamison s signature. See Appendix B-24 for the answers to this exercise. Chapter 2 Military Justice Page 182

189 Prepare and Process an Involuntary Excess Leave Form Condition: You are a post-trial Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate. A Soldier has been given a bad-conduct discharge at a court-martial, but received no confinement. The unit doesn t want him around causing more problems so the Trial Counsel has asked you to prepare an involuntary excess leave form. Performance Steps: 1. The General Court-Marital Convening Authority may direct involuntary excess leave if: a. The Soldier is sentenced by court-martial to dismissal or a punitive discharge. b. Discharge or dismissal is unsuspended. c. Soldier is awaiting completion of appellate review. d. Confinement has been served, deferred, or suspended prior to the beginning of leave, when included as part of the approved sentence. e. Approval of punitive discharge is under Article 60, UCMJ, by the GCMCA. 2. Cause the Soldier to be notified in writing of the GCMCA s intent to consider them for involuntary excess leave. 3. Give the Soldier reasonable time (normally 72 hours) in which to present matters supporting a request to continue on duty (if desired). 4. Excess leave begins the day the sentence is approved by the GCMCA or any day after the day the sentence is approved. Excess leave ends upon final judgment when the sentence is ordered executed, or other appropriate action is promulgated, or at any earlier time as authorized by the GCMCA. NOTE - The GCMCA should consider the Soldier s service record, the offenses for which convicted and sentence adjudged, the Special Court-Martial convening authority s recommendation, and the recommendation of the Staff Judge Advocate. The GCMCA should also consider whether the Soldier has demonstrated that they can be productive or beneficial to the Army by continuing on active duty pending appellate review and whether there will be hardship or other adverse consequences if the Soldier is required to take excess leave involuntarily. 5. Prepare DA Form 31 IAW AR Be prepared to field questions from Soldier or unit related to leave credits IAW AR Para 5-19 & Chapter 2 Military Justice Page 183

190 NOTE - Soldiers required to take leave, who have leave to their credit, may elect one of the following: (1) Receipt of pay and allowances during the period of accrued leave, with leave beyond that which was accrued charged as excess leave. (2) Payment for leave accrued to the Soldier s credit on the day before the day excess leave begins with the total period of required leave charged as excess leave. (3) A combination of receipt of pay and allowances during the period of accrued leave and accrued leave payment. 6. Ensure the DA Form 31 has large letters on it stating the Soldier is ineligible for space available transportation. SPACE AVAILABLE TRAVEL RESTRICTION IMPOSED. 7. Ensure that the Clerk of Court (JALS-CC) is furnished a copy of the excess leave form (DA Form 31). NOTE - Providing the Clerk of Court with a copy of the leave form will allow them to contact the Soldier upon completion of appellate review. AR AR Post-Trial Handbook References Performance Measures: Situation: Today is 26 November PV1 DAVIS, Carlos, , HHC, 54 th IN Div (Mech), Fort Atterbury, IN , was convicted by a General Court-Martial. His sentence included a bad-conduct discharge, forfeiture of $ pay per month for two months, and a written reprimand. The GCMCA, Major General James R. Franklin, in consultation with the chain of command and the Staff Judge Advocate, has decided PV1 Davis should be placed on involuntary excess leave. PV1 Davis has been given 72 hours notice and has decided not to submit matters or to try and stay on duty. PV1 Davis will be returning home to Tennessee to stay with his parents. The local address there is 442 County Road 6, Sticksville, TN and the phone number is (###) ###-####. The phone number to the orderly room at PV1 Davis unit is (###) ###-####. PV1 Davis has accrued 15 days of leave. The GCMCA will be taking action on the sentence today. Requirement: Prepare and process a DA Form 31 for involuntary excess leave for PV1 Davis. See Appendix B-25 for the answers to this exercise. Chapter 2 Military Justice Page 184

191 Prepare and Process a Record of Trial Condition: You are a post-trial Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate. The Record of Trial (ROT) has been authenticated. Performance Steps: 1. Receive authenticated record from Trial Counsel or Military Judge. Ensure the Military Judge has signed the authentication page. Ensure "Receipt for Copy of Record" or "Certificate in Lieu of Receipt" is completed and attached IAW R.C.M. 1104, MCM. 2. Determine whether the accused has submitted written matters to the convening authority under R.C.M within appropriate time limits. NOTE - For General and Special Courts-Martial, submissions are made within 10 days after service of the authenticated record upon the accused, but may be extended for up to 20 days by the convening authority. The right to submit matters under R.C.M may be waived in writing by the accused. 3. Ensure all copies of the ROT are legible and complete. 4. Ensure the ROT is assembled IAW the instructions listed on the inside back cover of DD Form 490 or DD Form 491, as applicable (one or the other is always used). 5. In General and Special (BCD) Courts-Martial, a Staff Judge Advocate s Post-Trial Recommendation will be prepared when the accused submits matters IAW R.C.M and The recommendation is then: a. Provided to the Defense Counsel for a response, to be submitted within five days, and attached to the ROT prior to action on the record. b. Provided to the GCMCA for action, along with the accused s R.C.M and 1106 matters and any subsequent requests by the Defense Counsel in response to the Staff Judge Advocate s Recommendation. 6. Prepare the action of the convening authority for signature.. 7. Receive signed action of the convening authority. Ensure that the date is immediately stamped on the action if not dated by the convening authority at time of signature. NOTE - If the trial resulted in an acquittal or termination prior to findings, an action is not required. 8. Prepare the initial promulgating order for authentication and subsequent attachment to the ROT. 9. Prepare the chronology sheet page of DD Form 490 or DD Form 491. Chapter 2 Military Justice Page 185

192 10. Prepare ITEMs 2 through 5 of DD Form 494, and ensure the Trial Counsel has completed the "TC" column of the DD Form 494, and has signed and dated ITEM Coordinate with the convening authority or representative to ensure the "SPCMCA" or "GCM" column of DD Form 494 is completed as required. 12. Ensure all exhibits and allied documents are present; obtain missing documents. 13. Ensure companion cases, if any, are identified IAW AR Ensure ROT is assembled IAW instructions on the back cover of DD Form 490 or DD Form 491 and that the errata sheet, post-trial recommendation (if required), ACTION page, promulgating order (in appropriate number of copies), R.C.M. 1105, R.C.M. 1106, post-trial and appellate rights advisement and appellate representation are inserted into the record in the proper place. 15. Ensure original ROT is forwarded to the GCM authority for processing IAW R.C.M and Article 64, UCMJ. NOTE - In Special (BCD) and GCM, all copies of the ROT, excluding that previously provided to the accused, are forwarded to the GCM authority IAW R.C.M Place the Staff Judge Advocate s copy of the ROT in an ACTIVE file IAW AR (if convened by SPCMCA pending receipt of Court-Martial order, DD Form 491, or written review reflecting results of the supervisory/appellate review conducted under R.C.M. 1112, IAW AR and the MCM.) 17. Ensure sufficient number of copies of the ROT have been prepared IAW AR a. In cases requiring appellate review, the Original ROT, Copy 1, and Copy 2 shall be forwarded to ACCA, via certified mail. b. In cases requiring a Clemency Copy, the Clemency Copy will be forwarded to the facility where the accused is serving confinement, via certified mail. 18. Place the copy of the legal review returned from GCM authority in the convening authority's copy of the ROT (if convened by the SPCMCA), and place file in INACTIVE file IAW AR Ensure the legal review and promulgating order are distributed IAW AR Update the court-martial locator file as appropriate. Chapter 2 Military Justice Page 186

193 21. Maintain statistical data IAW AR 27-10, Chapter 15. MCM AR Post-Trial Handbook Performance Measures: None. References Chapter 2 Military Justice Page 187

194 Prepare a Certificate of Correction Condition: You are a post-trial Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate. An error in the Record of Trial has been identified by the Trial Counsel and you have been directed to fix it. Performance Steps: 1. Prepare the Certificate of Correction ensuring that the following information is included IAW the MCM and DA Pam 27-9: a. Case citation data (US v. Accused's name, rank, SSN, branch of service). b. Type of document (CERTIFICATE OF CORRECTION). c. Body (to include the nature of the correction(s) and the reason(s) for the correction(s)). d. Statement that "R.C.M. 1104(d) has been complied with." e. Date and signature block of the person authenticating the Certificate of Correction. f. Paragraph for the accused to receive a copy of the Certificate of Correction and the accused's signature block. 2. Ensure the Certificate of Correction is authenticated in the same manner as the Record of Trial or IAW the MCM, R.C.M Serve a copy of the Certificate of Correction on the accused, and obtain the accused's signature on the receipt for that copy of the Certificate of Correction. 4. Ensure a copy of the Certificate of Correction is included in each copy of the Record of Trial. NOTE - A Certificate of Correction may be used only to make the Record of Trial correspond to the actual proceedings. If the members were not sworn, for example, the error cannot be cured by a Certificate of Correction. If the members were sworn but the record did not so reflect, the record could be corrected. An example of a Certificate of Correction can be found in the MCM, Appendix 14. NOTE - Some Military Judges may not like seeing social security numbers in the case style. Check local court rules for clarification. NOTE The person authenticating the Certificate of Correction must be the same individual who authenticated the Original Record of Trial. Chapter 2 Military Justice Page 188

195 MCM DA PAM 27-9 Post-Trial Handbook References Performance Measures: Situation: Prepare a Certificate of Correction IAW the MCM and DA Pam Use the following information: Today is 12 May The name of the case is, U.S. v. SPC Theodore P. Miller, U.S. Army, , Company C, 3 rd Battalion, 12 th Infantry, Fort Atterbury, Indiana , U.S. Army. The General Court-Martial was originally convened by CMCO #2, Headquarters, 54 th Infantry Division (Mechanized), dated 3 November 2010, and amended by CMCO #7, Headquarters, 54 th Infantry Division (Mechanized), dated 14 February The date the trial took place was 17 March The reporter was sworn but a statement to that effect was not written into the Record of Trial. R.C.M was complied with. A copy of the Certificate of Correction is being mailed to the accused by certified mail with return receipt. The Military Judge has retired and is not available to authenticate the correction. The Trial Counsel is CPT Tyronius Law. Requirement: Prepare a Certificate of Correction regarding the information above. See Appendix B-26 for the answers to this exercise Chapter 2 Military Justice Page 189

196 Prepare a Court-Martial Chronology Sheet Condition: You are a post-trial Paralegal working in the Criminal Law Office in the Office of the Staff Judge Advocate. You have been tasked to prepare a Court-Martial Chronology Sheet (DD Form 490, Page 2). Performance Steps: 1. ITEM 1 Enter the beginning date in the first column, and enter "0" in the second column if the accused was restricted, arrested, or confined by military authorities. If there was no confinement, leave the Date blank and put a 0 in the Cumulative Elapsed Days block. 2. ITEM 2 - Obtain the date the charges were preferred from ITEM 11e, DD Form 458, and enter it in the Date column. Compute the cumulative elapsed days IAW Notes 3 and 4 on the Chronology Sheet. 3. ITEM 3 - Extract the date of the Article 32 Investigation from ITEM 1d, DD Form 457, and enter it in the first column of ITEM 3 on the Chronology Sheet. Then enter the cumulative elapsed days in the second column. Enter "NA" in ITEM 3 if an Article 32 Investigation was not conducted. 4. ITEM 4 - Obtain the date charges were received by the convening authority and enter it in the first column of ITEM 4 followed by the cumulative elapsed days. (This date may be the same as the date in ITEM 13, DD Form 458 if the convening authority completed Section IV of the Charge Sheet, or it may be obtained from the court- martial locator file. This date must be the same or subsequent to the date of the transmittal memorandum forwarding the charges to the convening authority.) 5. ITEM 5 - Extract the date of referral from ITEM 14c, DD Form 458, and enter it in the first column of ITEM 5 on the Chronology Sheet followed by the cumulative elapsed days. 6. ITEMS 6 - Enter the date of sentence or acquittal and the cumulative elapsed days in the appropriate columns. 7. (Less Days:) Verify with the Trial Counsel the authorized number of days to deduct because the accused was sick, in the hospital, or AWOL, and the number of days to deduct due to delay at the request of Defense Counsel. Insert written requested defense delays in the ROT. If there are no delays, enter "0" in the spaces provided. Enter the inclusive dates and the reasons for delays in the "REMARKS" section. 8. ITEM 7 - Compute the net elapsed days to sentence or acquittal and enter them in ITEM 7. Chapter 2 Military Justice Page 190

197 9. ITEM 8 - Enter the date the record was received by the convening authority, and enter the date of action followed by the cumulative elapsed days in the appropriate columns. 10. ITEM 9 - Enter the date the record was received by the OSJA for review under Article 64a, UCMJ, if applicable, and enter the date of supplementary action by the GCMCA, if any, followed by the cumulative elapsed days. 11. Ensure post-trial defense delays as a result of extensions of time granted pursuant to R.C.M. 1105(c), R.C.M. 1106(f), and/or R.C.M.1110(f), if any, are deducted from the overall processing time (and attached to the ROT). NOTE - Ensure that standard letters, memoranda, or forms used to transmit Records of Trial and SJA reviews or recommendations to Defense Counsel/accused include a place for recording dates of receipt. a. Enter each delay in the "REMARKS" section (e.g., Defense delay, R.C.M. 1105(c); 5 days (6-10 Mar 97). b. Enter the sum of any R.C.M and R.C.M extensions as a negative figure (-10) immediately before the final total in the cumulative elapsed days column. c. Enter any extension under R.C.M. 1110(f) as a negative figure (-10) immediately after the final total in the cumulative elapsed days column. 12. Enter the date the Record of Trial is forwarded IAW R.C.M in the space provided. 13. Ensure the Chronology Sheet is signed by the convening authority or authorized representative if convened by the SPCMCA. Ensure the name, rank, and title of the officer signing are entered. 14. Ensure the Chronology Sheet is signed by the SJA or authorized representative if convened by the GCMCA. Ensure the name, rank, and title of the SJA are entered. 15. List the name of the confinement facility in the remarks block. MCM AR Post-Trial Handbook References Performance Measures: None. Chapter 2 Military Justice Page 191

198 Prepare a Staff Judge Advocate (SJA) Post-Trial Recommendation Condition: You are a Paralegal working in the Criminal Law Office at the Office of the Staff Judge Advocate. It s time for the convening authority to take action on a case. Before the convening authority can take action the SJA must provide a Post-Trial Recommendation or SJAR. Performance Steps: 1. The Staff Judge Advocate s Recommendation (SJAR) is a concise written communication. 2. The SJAR includes the findings and sentence adjudged by the Court-Martial. 3. The SJAR includes guidance as to clemency recommended by the sentencing authority (if applicable). 4. The SJAR includes a summary of the accused s service record, to include length and character of service, awards and decorations received, and any records of nonjudicial punishment and previous convictions. 5. The SJAR includes a statement as to the nature and duration of any pre-trial restraint. 6. The SJAR includes, if applicable, a statement of any action the convening authority is obligated to take under a pre-trial agreement, or reasons why the convening authority would not be obligated to honor the pre-trial agreement. 7. The SJAR includes a recommendation as to the action to be taken by the convening authority on the sentence. 8. If necessary, the SJAR includes a statement as to the nature of legal errors found in the Record of Trial. 9. Ensure a copy of the SJAR is delivered to the accused and to the Defense Counsel. MCM Post-Trial Handbook Reference Chapter 2 Military Justice Page 192

199 Performance Measures: Situation: You are working as the post-trial Paralegal in the Criminal Law Office at the Office of the Staff Judge Advocate, Fort Atterbury, Indiana. Your supervisor has asked you to prepare a Post-Trial Recommendation for the SJA s signature. Use the following information in your preparation: Accused: PFC SEPULVEDA, Jamie, , Headquarters and Headquarters Company, 1 st Battalion, 12 th Infantry, 1 st Brigade, 54 th Infantry Division (Mechanized) Fort Atterbury, Indiana Date of trial: 28 November Date of Birth: 4 September Marital Status: Single. Dependents: None. Civilian Education: High School Graduate. Military Education: None. BASD: 27 May Current enlistment: 4 years. Total Creditable Service: Approximately one year and six months at time of trial. Military awards received: NDSM, ASR, GWTSM, M16 Qualification Badge - Marksman GT Score: 113. No prior military or civilian, criminal or disciplinary, convictions. Charge: Article 86. Specification: In that PFC Jamie Sepulveda, U.S. Army, did, on or about 4 January 2010, without authority, absent himself from his unit at which he was required to be, to wit: Headquarters and Headquarters Company, 1 st Battalion, 12 th Infantry, located at Fort Atterbury, Indiana , and did remain so absent until on or about 17 October Chapter 2 Military Justice Page 193

200 Your office symbol: AJJ-JA. The SJA s name is COL Thomas Landry. PFC Sepulveda was found guilty at a Special Court-Martial empowered to adjudge a badconduct discharge on 28 November PFC Sepulveda pled guilty to both the Charge and its Specification. There was a pre-trial agreement in the case. In exchange for his pleas of guilty the convening authority agreed to refer the case to a Special Court-Martial empowered to adjudge a bad-conduct discharge, and also agreed to disapprove any sentence to confinement in excess of five months. The maximum sentence authorized in this case is reduction to PV1 (E1); forfeiture of two-thirds pay per month for 12 months; confinement for 12 months; and a bad-conduct discharge. The adjudged sentence was reduction to PV1 (E1); forfeiture of $ pay per month for six months; confinement for six months; and a bad-conduct discharge. All other legal punishments are authorized. The Military Judge did not recommend any clemency. There was no pre-trial confinement credit, administrative credit, or credit for pre-trial restraint. The SJA is recommending to the convening authority that the sentence be approved and, except for the bad-conduct discharge, to order the execution of all punishments. The SJA will sign the recommendation today, 22 December The convening authority is the Commander, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana Requirement: Prepare the SJA s Post-Trial Recommendation. See Appendix B-27 for the answers to this exercise. Chapter 2 Military Justice Page 194

201 Prepare a Convening Authority s Action Condition: You are working as the post-trial Paralegal in the Criminal Law Office at the Office of the Staff Judge Advocate. The SJA s Post-Trial Recommendation has been completed and the convening authority is going to take action on the sentence. Performance Steps: 1. Ascertain whether the ROT reflects that the accused was convicted. If trial resulted in an acquittal, no action is required. 2. Ensure the requirements of R.C.M and, if applicable, R.C.M have been met. 3. Forward the authenticated ROT along with the SJA s Post-Trial Recommendation and the accused s matters to the convening authority for consideration IAW the MCM. 4. Ascertain the desired action of the convening authority and prepare the Action IAW the MCM and AR Enter the action in item 13, DD Form 2329, for a SCM IAW the MCM and AR Prepare the action for a SPCM or GCM on plain bond paper IAW the MCM and AR a. Center the word "ACTION" (capitalized) on the eighth line of the paper. b. Center the heading of the convening authority beginning on the second line below the word "ACTION." c. Enter the date the action is signed on the second line below the heading so that it ends at the right margin. d. Enter the body of the action on the second line below the date beginning at the left margin. e. Enter the signature block of the convening authority on the fifth line below the body of the action beginning at the center of the page. 7. Ensure the convening authority personally signs the action. 8. Ensure a copy of the action is served on the accused or on defense. Chapter 2 Military Justice Page 195

202 9. Notify the confinement facility and finance and accounting office (FAO) providing finance service to that facility within 24 hours of convening authority action IAW AR and AR if the accused is confined. MCM AR AR Post-Trial Handbook References Performance Measures: Situation: Use the situation contained in the task Prepare a Staff Judge Advocate (SJA) Post-Trial Recommendation to complete the Action. Additional information provided: The ROT was authenticated on 16 December 2010 and the accused waived his right to submit matters under R.C.M during trial on the record. The convening authority directed that an action reflecting the maximum sentence he can approve be prepared for his signature today, 23 December The convening authority is Major General James R. Franklin, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana Requirement: Prepare the convening authority's action. See Appendix B-28 for the answers to this exercise. Chapter 2 Military Justice Page 196

203 Prepare and Process an Initial Court-Martial Promulgating Order Condition: You are working as the post-trial Paralegal in the Criminal Law Office at the Office of the Staff Judge Advocate. Action has been taken on a case you have been processing. It s time to promulgate! NOTE - Promulgate - To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of the court. (As defined by Black s Law Dictionary). Performance Steps: 1. Ensure the ROT is authenticated and the action of the convening authority is inserted in the record. NOTE - The convening authority will issue an order promulgating the results of trial for all GCMs and SPCMs. 2. Obtain the promulgating orders file, determine the next SPCM or GCM order number, as appropriate, and update the orders log. 3. If the initial promulgating order for a General or Special Court-Martial contains findings of guilt as to any qualifying military offense, the Staff Judge Advocate shall ensure that the top of the first page of the order is annotated in bold with DNA processing required. 10 USC A qualifying military offense is a felony or sexual offense determined by the Secretary of Defense to be a qualifying military offense for the purposes of 10 USC The body of the order will contain the elements outlined in R.C.M in the format of Appendix 17, MCM. If the order promulgates the proceedings of a rehearing, it will recite that fact together with the number and date of the Court-Martial order publishing the former proceedings. 5. Prepare the order in the following format (an example of an initial promulgating order can be found in AR Figure 12-1): a. Enter the notation "Special (or General) Court-Martial Order Number xx was the last of the series for 20xx" above the heading if the order is the first issued for the calendar year. b. Enter the order designation, date, and number IAW AR c. Enter the body of the order IAW the MCM and AR 27-10, figure d. Enter the order authentication IAW AR and AR e. Enter the distribution IAW AR 27-10, Para 12-7(b) and AR Chapter 2 Military Justice Page 197

204 f. Enter the signature block IAW AR g. Ensure the order is signed IAW AR File a copy of the initial Court-Martial promulgating order in the reference record sets of military publications/ personnel type orders IAW AR and AR Prepare a corrected initial Court-Martial promulgating order, if necessary IAW AR MCM AR AR AR Post-Trial Handbook References Performance Measures: Situation: Use the situations in the Task: Prepare Convening Authority s Action and the Task: Prepare a Staff Judge Advocate (SJA) Post-Trial Recommendation. Additional information provided: PFC Sepulveda was arraigned at Fort Atterbury, Indiana. The last SPCM promulgating order number was 45. MSG Wade Jones, the Military Justice NCOIC has signature authority for Major General James R. Franklin and will be signing the promulgating order. MG Franklin wants the maximum possible sentence approved. Distribution is IAW AR 27-10, Paragraph Requirement: Prepare an initial promulgating order. See Appendix B-29 for the answers to this exercise. Chapter 2 Military Justice Page 198

205 SECTION V: Memorandum/Letter of Reprimand Prepare and Process a Non-Punitive Administrative Memorandum/Letter of Reprimand for filing in the Official Military Personnel File (OMPF) Condition: You are a Battalion Paralegal and your Commander has directed you to prepare a written administrative reprimand for a Soldier in your unit accused of driving under the influence of alcohol. Performance Steps: 1. Gather facts surrounding the case. Military or civilian police reports, AR 15-6 investigations, and sworn statements are a few examples of ways to gather the facts. 2. Prepare the written reprimand based on facts gathered and follow the memorandum format set forth in AR The memorandum will be addressed to the Soldier in question. 3. Minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier s OMPF. 4. Unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. 5. A letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a General Officer (to include one frocked to the rank of Brigadier General) senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual. NOTE - The letter does not need to be written or signed by a General Officer. A General Officer must however make the decision to file the letter in the OMPF. 6. Letters filed in the OMPF will be filed in the performance section. The direction for filing in the OMPF will be contained in a memorandum attached to the letter. 7. The letter will contain a statement that indicates it has been imposed as an administrative measure and not as a punishment under UCMJ, Article A letter to be filed in a Soldier s OMPF will: a. Be referred to the recipient concerned for comment according to Paragraph 3 6, AR b. The referral will include reference to the intended filing of the letter. Chapter 2 Military Justice Page 199

206 c. The referral will also include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation. 9. Unfavorable information will be referred to the recipient for information and acknowledgement of his or her rebuttal opportunity. Acknowledgement and rebuttal comments or documents will be submitted generally in the following form: a. I have read and understand the unfavorable information presented against me and submit the following statement or documents in my behalf: b. I have read and understand the unfavorable information presented against me and elect not to make a statement. c. If a recipient refuses to acknowledge the referral of unfavorable information, the reprimanding official will prepare the following statement, On (date), (name) has been presented with the unfavorable information and refuses to acknowledge by signature. 10. Statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the OMPF. This will be done before a final determination is made to file the letter. Should filing in the OMPF be directed, the statements and evidence, or facsimiles thereof, may be attached as enclosures to the basic letter. 11. If it is desired to file allied documents with the letter, these documents must also be referred to the recipient for comment. This includes statements, previous reprimands, admonitions, or censure. Allied documents must also be specifically referenced in the letter or referral document. 12. If the General Officer (or General Court-Martial Convening Authority) elects not to place the letter in the OMPF, the correspondence will be returned to the person writing the letter. That Soldier will be advised of the decision not to file the letter in the OMPF. AR AR References Chapter 2 Military Justice Page 200

207 Performance Measures: You are the Brigade Paralegal NCOIC, for 1 st Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana The Brigade Commander, COL Oscar B. Johnson, IN, has just handed you MP Report # , referencing a DUI charge for SGT Jeffrey Lush, , Headquarters and Headquarters Company, 1 st Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana COL Johnson instructed you to prepare a non-punitive administrative reprimand with the intention for it to be filed in the OMPF. COL Johnson will be sending the reprimand up to the Commanding General, Major General James R. Franklin, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana , and request that the letter be filed in the OMPF. SGT Lush was pulled over by the Military Police on Barracks Drive, Fort Atterbury, Indiana, on 31 October The MP observed SGT Lush s red Jeep swerving across the center line of Seminole Road. After stopping the Jeep, the MP noticed a strong odor of alcohol on SGT Lush s breath. A field sobriety test was performed which SGT Lush failed. SGT Lush was taken to the Provost Marshall s Office and administered a breathalyzer test which showed a result of.135 grams of alcohol per 210 liters of breath. The letter was signed by Major General James R. Franklin on 2 November SGT Lush acknowledged receipt of the letter on 3 November 2010 and chose not to submit a rebuttal. Headquarters and Headquarters Company, 1 st Brigade, 54 th Infantry Division (Mechanized), falls under 1 st Battalion, 12 th Infantry for all administrative and judicial purposes. Use the Chain of Command section in the Appendix for the names and office symbols needed for this exercise. Requirement: Prepare a non-punitive administrative reprimand for the CGs signature. The CG plans on putting the MP report into the OMPF as well. Prepare a receipt for SGT Lush s signature acknowledging that he has seen the reprimand and MP report. Prepare chain of command recommendation memoranda and a memorandum for the CG with the opportunity to file the reprimand in the OMPF or locally. See Appendix B-30 for the answers to this exercise. Chapter 2 Military Justice Page 201

208 SECTION VI: Involuntary Administrative Separations Prepare, Process, and Review an Involuntary Enlisted Administrative Separation for the Active Army Condition: You are a Battalion Paralegal and have been tasked with preparing and processing an involuntary administrative separation for a Soldier in your unit. Performance Steps: NOTE MJO has every involuntary chapter shell available for download and use. These shells are able to be tailored for use in your own jurisdictions and locations. You must create and track your chapter actions through MJO. 1. Determine if the notification procedure or the administrative board procedure is to be used. AR , Chapter 2, Section I explains the notification procedure and Chapter 2, Section II explains the administrative board procedure. NOTE - What triggers the use of the administrative board procedure: a. If a Soldier has six or more years of active and/or reserve/or guard time on the date of notification of separation they are entitled to have their case heard by an administrative separation board (this includes DEP time). b. A Soldier cannot be separated with a characterization of service Under Other Than Honorable Conditions without first being afforded the opportunity to present their case to an administrative separation board. The Notification Procedure: The initiation of an administrative separation process in which the respondent is notified, in writing, of the proposed separation, the bases thereof, the results of separation, and their rights. This term is commonly used when the respondent does not have a right to a hearing before an administrative separation board. The Administrative Board Procedure: An administrative separation action wherein the respondent will have a right to a hearing before a board of commissioned, warrant, or noncommissioned officers. It is initiated in the same manner as the Notification Procedure. See the information paper on Active Duty Enlisted Separations (Appendix B-32) for information about administrative board procedures. 2. Determine what chapter in AR , Active Duty Enlisted Administrative Separations, will be used to separate the Soldier. Ensure evidence meets the criteria of the specific chapter you are using. 3. Prepare the notification memorandum IAW AR Ensure the Commander signs the notification memorandum. Chapter 2 Military Justice Page 202

209 5. Prepare the Soldier s election of rights memorandum IAW Figure 2-4, AR Provide the Soldier with a copy of the entire separation packet including all allied documents. 6. Allow the Soldier a reasonable time to respond to the notification (at least three duty days), and provide information as to where the Soldier can get legal counsel. NOTE - It is recommended that an appointment be set up for the Soldier by the Paralegal and have the unit provide an escort to the TDS Office. Ensure that the escort does not allow TDS to keep the original chapter file. If TDS wants a copy of the file, have the escort make a copy of the entire file for TDS to include all enclosures. The Soldier may also provide their copy to their Defense Counsel. 7. Prepare the Commander s separation report IAW AR , Figure 2-5. Forward the separation packet with all allied documents through the chain of command for recommendation or action. NOTE: Intermediate Commanders cannot disapprove requests for separation, except in cases governed by Chapter 13, Unsatisfactory Performance and Chapter 14, Misconduct (except when the case involves the abuse of illegal drugs). 8. The separation authority can do the following: a. Approve the separation if there is sufficient evidence to support the request. b. Disapprove the separation and return to the requesting Commander with written guidance as to why it was disapproved. c. Suspend the separation (for up to six months). d. If the Soldier was eligible and elected to have their case heard by an administrative separation board, the separation authority cannot issue a characterization of service worse than what the board recommended. NOTE: Consult your local installation transition point, G1, or PSB, on proper out-processing procedures. AR AR Performance Measures: References On 16 November 2010, SPC Anthony R. Cruz tested positive for cocaine at a unit urinalysis. The urinalysis test was random. Chapter 2 Military Justice Page 203

210 SPC Cruz s information: PEBD and BASD: 13 June SSN: Unit: Company B, 3 rd Battalion, 3 rd Armor, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana DOB: 15 May Current date and term of enlistment: 13 June 2007; 4 years. Prior Service: None. Aptitude DMOS and scores: 19K10, GT: 95, CA: 94, CO: 102, EL: 101, FA: 104, MM: 92, FO: 94, SC: 91, TE: 95, GM: 92. CTT: Passed all events on 19 June Counseling Record: No negative or positive counseling. Rehab attempts: None. Non-judicial punishment: Field Grade Article 15 on 15 December 2010 for testing positive for cocaine on 16 November The punishment consisted of: Reduction to the grade of Specialist (E4), Forfeiture of $ pay per month for two months, and Extra Duty and Restriction to the limits of Fort Atterbury, Indiana for 45 days. No Courts-Martial convictions. Medical exam (dated 15 December 2010) and mental status evaluations (dated 16 December 2010) are both attached. The unit flagged the Soldier for elimination on 15 December CPT Latona, Commander, Company B, 3 rd Battalion, 3 rd Armor, had the following to say about SPC Cruz: He has lost all ability and potential to lead Soldiers given the fact that he tested positive for an illegal drug. SPC Cruz s potential for further service has been significantly degraded and he no longer shows a desire to uphold the Army values. In my opinion this is the only course of action that is appropriate. The Commander recommends a General, Under Honorable Conditions Discharge. Promotions: PV1 13 June 2007; PV2 13 December 2007; PFC 13 April 2008; SPC 1 August 2008; SGT 1 May Chapter 2 Military Justice Page 204

211 Reductions: Reduced from SGT to SPC via Field Grade Article 15 on 15 December Time lost: None. Awards: ASR, OSR, NCOPD, GCM, AAM x 2, ARCOM x 2, NDSM, GWTEM. Company Commander s Rank, Name and Branch: CPT William E. Latona, Jr., AR. CPT Latona is recommending that SPC Cruz be separated with a General, Under Honorable Conditions Discharge. For all other information relating to the chain of command and office symbols, please see the Chain of Command section in the Appendix. Defense Counsel: CPT Amanda Johansson, JA Requirement: Prepare the notification memorandum, election of rights memorandum, Commander s report, intermediate Commander s recommendation memorandum and the separation authority s memorandum directing separation of the Soldier with a General, Under Honorable Conditions characterization of service. Refer to AR and MJO for proper formats. See Appendix B-31 for the answers to this exercise. NOTE See Appendix B-32 for additional information pertaining to Active Duty Enlisted Administrative Separations. Chapter 2 Military Justice Page 205

212 Prepare and Process Involuntary Enlisted Administrative Separations for the U.S. Army Reserve Component Conditions: You are a Battalion Paralegal at a Reserve unit. A Company Commander from your Battalion has asked you to prepare an involuntary administrative separation pursuant to AR , Enlisted Administrative Separations. Performance Steps: 1. Department of the Army separation policy is designed to strengthen the concept that military service is a calling different from any civilian occupation. Reasonable efforts should be made to identify Soldiers who are likely to be separated early, and to improve their chances for retention through counseling, retraining, and rehabilitation prior to initiation of separation proceedings. NOTE - The Army makes a substantial investment in training, time, equipment, and related expenses when people enter into military service. Separation prior to completion of an obligated period of service is wasteful because it results in loss of this investment and generates a requirement for increased accessions. Consequently, attrition is an issue of significant concern at all levels of responsibility within the Reserve Components of the Army. Reasonable efforts should be made to identify Soldiers who are likely to be separated early, and to improve their chances for retention through counseling, retraining, and rehabilitation prior to initiation of separation proceedings. Soldiers who do not conform to required standards of conduct and performance and Soldiers who do not demonstrate potential for further military service should be separated to avoid the high costs of continued service in terms of pay, administrative efforts, degradation of morale, and substandard mission performance. AR Paragraph Determine if the notification procedure or the administrative board procedure is to be used. AR , Chapter 3, Sections II and III cover notification and board rights. NOTE - What triggers use of the administrative board procedure: a. If a Soldier has six or more years of active, reserve, guard or DEP (Delayed Entry Program) time on the date of notification of separation, they are entitled to have their case heard by an administrative separation board. b. A Soldier cannot be separated with a characterization of service of Under Other Than Honorable Conditions without first being afforded the opportunity to present their case to an administrative separation board. The Notification Procedure: The initiation of an administrative separation board process in which the respondent is notified, in writing, of the proposed separation, the bases thereof, the results of separation, and their rights. This term is commonly used when the respondent does not have a right to a hearing before an administrative separation board. The Administrative Board Procedure: An administrative separation action wherein the respondent will have a right to a hearing before a board of commissioned, warrant, and/or noncommissioned officers. It is initiated in the same manner as the Notification Procedure. Chapter 2 Military Justice Page 206

213 3. Determine what Chapter in AR , Enlisted Administrative Separations, will be used to request separation of the Soldier. Ensure evidence meets the criteria of the specific Chapter you are using. 4. Prepare the separation memorandum using Notification Procedure IAW AR , Figure 3-2, or the Administrative Board Procedure IAW AR , Figure Ensure the Commander signs the notification memo. Serve the Soldier with the notification of separation and allied documents. NOTE: Personal service is preferred but mail is authorized. The person that mails the packet will prepare an affidavit of service and ensure the package is sent certified return receipt requested. 6. Notification Procedure: Prepare the Soldier s response memorandum and include it in the packet when mailing the notification memorandum. See AR , Figure 3-3, for an example of the Soldier s response memorandum. Include information as to how the Soldier can contact an attorney for counseling. 7. Administrative Board Procedure: a. Prepare the Soldier s response memorandum and include it in the packet when mailing the Administrative Board Procedure memorandum. See AR Figure 3-6, for an example of the Soldier s response memorandum. Include information as to how the Soldier can contact an attorney for counseling. b. Also prepare the Soldier s conditional waiver memorandum contained in AR , Figure 3-7, and include it in the packet when mailing the Administrative Board Procedure memorandum in case the Soldier does not want to have an administrative separation board. 8. Allow the Soldier a reasonable time to respond to the notification (at least 30 calendar days). Failure to respond constitutes a waiver of the Soldier s rights. 9. Prepare the Commander s separation report for either the Notification or Administrative Board Procedure IAW AR , Figure Prepare a memorandum for the intermediate Commander with options for disapproval or approval. Include all (not just those given by the initiating Commander) options as to characterization of service for the intermediate Commander. Intermediate Commanders can disapprove the request. If separation is recommended forward the action to the separation authority. 11. The separation authority can do the following: a. Approve the separation if there is sufficient evidence to support the request. Chapter 2 Military Justice Page 207

214 b. Disapprove the separation and return to the requesting Commander with written guidance as to why it was disapproved. c. Suspend the separation. Note: When a Reserve Soldier is on active duty to include Mobilization, ADT, or ADSW or similar types of orders and the cause for separation arises, use AR AR AR 15-6 References Performance Measures: Situation: You have been tasked to prepare an enlisted administrative separation on a United States Army Reserve Soldier. The Company Commander has provided you with 10 counseling statements (DA Form 4856), and two Article 15s (DA Form 2627), pertaining to PV1 Dirk Derringer, , Company D, 78 th Engineer Battalion, 22 nd Engineer Brigade, 19 th Infantry Division, Fort Chamberlain, OH, PV1 Derringer is a Troop Program Unit (TPU) asset. Listed below are summarized versions of the counseling statements PV1 Derringer received (DA Form 4856): 1. Dated 19 June 2010, for disrespect to SFC Jeremy Johnson. SFC Johnson states PV1 Derringer rolled his eyes after he told him to do police call, SFC Johnson wrote the counseling. 2. Dated 20 June 2010, disrespect to SSG Kari Walton. SSG Walton states PV1 Derringer told her to kick rocks after she instructed him to zip up his ACU top. SSG Walton wrote the counseling. 3. Dated 17 July 2010, failure to obey a lawful order. 1SG Benny Brooks states PV1 Derringer failed to comply with an order he gave him to pull all the weeds from the rock bed in front of the unit orderly room. 1SG Brooks wrote the counseling. 4. Dated 18 July 2010, for failure to report on 17 July SGT Stacey Stevens states PV1 Derringer failed to report for the 0630 PT/accountability formation adjacent to Building 155 on Fort Chamberlain. Chapter 2 Military Justice Page 208

215 5. Dated 15 August 2010, for leaving place of duty on 14 August SGT Stacey Stevens states PV1 Derringer left his appointed place of duty to wit: the unit motor pool at 1400 without proper approval, she wrote the counseling. 6. Dated 15 August 2010, failure to obey lawful order. SGT Stacey Stevens gave PV1 Derringer an order to PMCS his assigned vehicle before leaving for lunch. PV1 Derringer failed to do so. 7. Dated 18 September 2010, failure to report on 18 September SGT Stacey Stevens states that PV1 Derringer failed to report for the 0630 PT/accountability formation adjacent to Building 155 on Fort Chamberlain. 8. Dated 19 September 2010, failure to obey lawful order. SSG Kari Walton states PV1 Derringer disobeyed her order to stand at parade rest while she was talking to him. SSG Walton wrote the counseling. 9. Dated 16 October 2010, drunk on duty. At the 0630 PT/accountability formation adjacent to Building 155 on Fort Chamberlain, SGT Stacey Stevens detected the odor of alcohol on PV1 Derringer s breath. She informed the First Sergeant and Commander. The Commander determined after speaking with PV1 Derringer that there was sufficient evidence to get PV1 Derringer tested. PV1 Derringer was taken to the MP Station and was given a breathalyzer test resulting in a BAC of.072%. SGT Stevens wrote the counseling. 10. Dated 17 October 2010, failure to be at appointed place of duty. On the evening of 16 October 2010, PV1 Derringer was to report to the 78 th Engineer Battalion SDNCO for extra duty. PV1 Derringer never showed and SGT Stacey Stevens counseled him the next morning. Listed below is a description of the two Article 15s that PV1 Trugger received: 1. DA Form 2627, dated 16 October 2010, for the offenses listed in Paragraphs 1 through 9 above. 2. DA Form 2627, dated 17 October 2010, for the offense listed in Paragraph 10 above. Today is 20 November The Company Commander is CPT Jeremiah L. Pepper, EN, has had enough. CPT Pepper wants to notify PV1 Derringer today of the pending separation action. You have coordinated with a local TDS field office to have PV1 Derringer see CPT Clarence Simpson, to go over the election of rights/soldier s response memorandum on 21 November PV1 Derringer has less than one year of reserve duty as of today. The office symbol for CPT Pepper is RESEN-CD. Chapter 2 Military Justice Page 209

216 Requirement: Using the appropriate Chapter in AR , prepare the notification memorandum and the Soldier s election of rights (Soldier s response) memorandum. Use the figures in AR NOTE: AR , Figures 3-1 and 3-2, talk about using endorsements as a method of written communication. In the most recent revision of AR 25-50, Preparing and Managing Correspondence, endorsements were eliminated. Use memorandum format instead of the endorsement format. See Appendix B-33 for the answers to this exercise. NOTE See Appendix B-34 for additional information pertaining to Reserve & National Guard Enlisted Administrative Separations. Chapter 2 Military Justice Page 210

217 Chapter 3 Legal Assistance Table of Contents 1. Conduct Customer Service 2. Screen Clients for Legal Assistance using Client Information System (CIS) 3. Conduct Notary Services 4. Draft a Power Attorney using Quickscribe 5. Draft a Will using DL Wills 6. Prepare, Process, and Review Voluntary Administrative Separations IAW AR Chapter 3 Legal Assistance Page 211

218 Conduct Customer Service Condition: You are a Paralegal working in the Legal Assistance Office at your installation. Clients will come into your office on a daily basis for services. You must provide professional customer service in a variety of customer service scenarios and situations. You have access to AR 27-3 and AR Performance Steps: 1. Demonstrate Professionalism and Courtesy. a. While working in a Legal Assistance Office (LAO) you must conduct yourself in a professional and courteous manner. You will deal with an extremely wide range of clients. You will be called upon to assist both Active and Reserve component Soldiers, Family members, retirees, and civilians authorized to receive Legal Assistance services. They are all entitled to be treated professionally and courteously, regardless of their rank or status. You must also extend to clients the appropriate military customs and courtesies due their rank or position. b. Whenever possible, you should stand when speaking to Officers and Noncommissioned Officers (NCOs). Often in an office environment, it is not easy for you to stand and greet each client when you are trying to assist multiple clients at once. For example, you may be working on a document for one client and another walks in, for which you would normally be required to stand. It is acceptable to continue working; however, you should acknowledge them and give that client the proper greeting and military courtesy. NOTE Remember to be professional at all times, first and foremost. 2. Display a Positive Attitude. As Paralegals, it is our job to assist the attorneys in providing prompt, courteous, and professional legal services. In doing so, we have to make our clients feel like they are welcome and appreciated and that we want to help them. They should not be made to feel like they are a bother or are imposing upon us. We are here to provide a service to them as clients. In providing this service, we should avoid certain actions and behaviors. These behaviors are common in customer service and are often referred to as The Deadly Sins of Customer Service. For our purposes, they have been somewhat modified to fit the military. (1) Sin #1: Have a Nice Day Now! Nothing is guaranteed to irritate customers more than a false smile or an insincere greeting. It makes people cringe when someone delivers a throwaway line just because they have been told to be nice to the customer. Scripted greetings lack sincerity and, when heard more than once by the same customer, diminish the authority of the service representative. Chapter 3 Legal Assistance Page 212

219 - There are many ways that a person can say a phrase like, Have a Nice Day and have many different meanings and none of them are very nice. - It is fine to say it if you mean it and the sincerity is there so that the person knows that you mean it. If your supervisor gives you a text book answer to say, it will most likely sound insincere unless you put a lot of work into it or are just a good actor or actress. It basically comes down to being polite and treating people the way you would like to be treated. (2) Sin #2: I ll just put you through to someone who might be able to help. (Passing the buck) Customers frequently complain about being bounced around a phone system, having to repeat their story over and over again, getting increasingly worked up, only to be pawned off on someone else who not only can t help, but has no inclination to even try. The first step to addressing this issue is to ensure that Soldiers are really listening to what the customer wants or needs, not simply passing the buck before they have heard the full story. Often, if the person who initially picks up the inquiry listens properly, the customer can be transferred straight to the right person rather than going through numerous departments. Sometimes this scenario is unavoidable. However, time permitting, you can do a lot to help by finding out who the person needs to talk to and getting them to the right person with one phone call, instead of passing them off onto someone else. You can most easily do this by listening to their story and then deciding if your office can help. If your office cannot help, try and find out whom they should be talking to. (3) Sin #3: It s not Company Policy! (Military Translation - It s against Army Regulation ) There is really no way for us, in the military, to get around this one if the requested service violates Army Regulation or OSJA/Legal Assistance policies. With Legal Assistance policies there may be some flexibility or exceptions that can be made by those in charge; however, the leadership makes those decisions. The best thing that you can do is listen to the problem and help them as best you can. There may be other solutions or avenues that can get the required result other than violating a regulation. You will find that this is true in most situations. You don t want to just say something like it s against policy or regulation; we can t help you. If possible, give a short explanation. Keep in mind that a lot of the clients you deal with have no idea how the military works or why you can t do something that seems so simple to them. A brief explanation or a bit more information can go a long, long, way in helping customers. (4) Sin #4: And he said well, I can tell you, I wasn t standing for that, so I said... Personal conversations, as much as possible, should be kept to personal time. - It is extremely rude and annoying for a customer service person to stand there in front of a client or clients and carry on a personal conversation, while they wait for service, ignoring the client. Clients are very busy people and want to get in and out of your office just as quickly as they can. They do not have the time or the desire to stand there and listen to service representatives carry on about their personal lives. Chapter 3 Legal Assistance Page 213

220 - If you are in the middle of a conversation, be it professional or personal, at least give the client the courtesy of pausing and letting them know you will be right with them. If the conversation is personal you should end it and help the client. If it is business, extend to them the courtesy of acknowledging them. (5) Sin #5: Err, I m not sure really I am just covering the phones/watching the front desk - The root of this problem could most likely be handled or avoided through good leadership. Personnel who may be at the front desk for short periods of time should be trained or cross-trained to at least intelligently answer questions and handle simple situations. In most cases when this occurs, the regular office personnel have been extracted from the office for various reasons and missions. They are temporarily replaced by a warm body, which is basically someone to greet and seat clients and answer the phones. If this Soldier is trained, at least in the basics of legal assistance, they will be able to handle the job. - At some installations there are Legal Assistance Offices that are open on certain weekends and staffed by Reserve Component Soldiers. Reserve Component Paralegals have the same responsibility to be knowledgeable and proficient at their job as the Active Army. They should receive the appropriate training and be fully expected to perform to standard. If a client comes into one of these offices on the weekend, they came there for a reason; service. They fully expect to and should receive adequate legal assistance services. (6) Sin #6: Rude behavior - Remember the Golden Rule - Treat others how you would like to be treated. Greet your clients within the first seconds upon them entering. Acknowledge their presence and do not make them feel as though they are bothering you by seeking your assistance. You are there to help them. Be polite in your dealings with the clients and try to accommodate their requests. Listen to them when they speak. 3. Distinguish Between General Legal Information and Legal Advice. a. Under the provisions of AR 27-3 and AR 27-26, you, as Paralegals, are not authorized to give legal advice. However, you do provide general information. You will assist clients in determining what services are appropriate to handle their personal legal matters; however you will not recommend that they take a course of action based on your interpretation of the law or regulation. You will also prepare legal documents for clients. b. In order for you to distinguish legal advice from general legal information it is important that you have an understanding of them both. Here are their definitions: Chapter 3 Legal Assistance Page 214

221 (1) Legal Advice - A recommended course of action based on interpretation of pertinent laws and regulations, personally given to clients to assist in deciding how to proceed in legal matters. (Given by Judge Advocates and attorneys authorized to practice law, including DOD civilian attorneys.) Under normal circumstances, only the following personnel are authorized to provide legal assistance, IAW AR 27-3, para 2-2: - Army Judge Advocates - Department of the Army (DA) Civilian Attorneys (2) General Legal Information - Situation-specific facts (primarily about legal services) given to foster understanding of legal services and to help the client decide what services he or she may need. It is not given or intended as legal advice. As Paralegals you will answer general questions and prepare various legal documents. Some of the documents that you will prepare are Wills (under attorney supervision), Powers of Attorney, and affidavits. (3) Legal Assistance - Legal advice, counseling, and other help provided to eligible clients on their personal legal affairs (per AR 27-3). 4. Legal Support Personnel Responsibilities - As a paralegal specialist in a legal assistance office, you will have a wide range of responsibilities. These responsibilities include but are not limited to, answering the phone, maintaining the Client Card Database, preparation of wills, Powers of Attorney, affidavits, and various other legal documents, screening clients (normally done by Noncommissioned Officers), checking for conflicts of interests and ensuring that you preserve the attorney-client relationship. a. The most important of these responsibilities is maintaining or preserving the attorney-client relationship and thereby preserving the confidentiality of all communications between the attorney and the client and between you and the client. This is known as attorney-client privilege. (1) In accordance with AR 27-3 paragraph 4-8(b), Those who assist attorneys providing legal assistance will maintain the same strict standards of confidentiality. This refers to information received by the attorney and/or his or her support personnel from their clients in the process of providing them assistance. This information is known as privileged communication and can only be released in accordance with applicable law. The client may authorize release. If this occurs the authorization should be obtained in writing and kept as a part of the client s record. Chapter 3 Legal Assistance Page 215

222 (2) This means that normally, you may only discuss a client s information (privileged communication) with legal assistance attorneys and support personnel in an official capacity. You may not discuss a client s case with your friends at the barracks, or at home. You may not go throughout the OSJA and discuss a client s case with other paralegals as a matter of casual conversation. You may not even go home and tell your spouse or kids about any client s case. (3) This information is very personal and, again, privileged and only given to you for use in providing the client complete and proper assistance. Disclosing privileged information violates the Rules of Professional Responsibility, and can very easily get yourself and the supervising attorney into a lot of trouble. You may also unknowingly and unintentionally cause problems for your clients and violate the trust they have bestowed upon you. Getting all the relevant information pertaining to a client s situation is essential for the attorney to provide adequate advice. If the LAO has a reputation of disclosing personal information, this will directly result in a decreased level of support that an attorney can provide to the client because they will be hesitant to disclose all the relevant information. b. Conflicts of Interest - A conflict may prevent an attorney, and in some instances, all the attorneys in an Army legal office from providing legal assistance to a particular client (AR 27-3, Paragraph 4-9(a) and AR 27-26, Appendix B, Rules ). (1) One of the more common instances of where a conflict of interest can arise would be in a Legal Separation. Often, you will have spouses seeking counsel from the same LAO. Once the first party has been counseled, the second party must be referred to another LAO. If both parties were to see the same attorney, it would be impossible for that attorney to provide the best service to either client in regards to the separation. Issues such as child support, custody, and the disposition of property would arise, and the attorney cannot seek the best result for one client when the other party is also their client. (2) Every effort should be made to avoid conflicts. One of the most effective ways to avoid conflicts is to properly maintain the Client Information System (CIS) and the Client Legal Assistance Record file and to check these every time there is a possibility of a conflict. NOTE See Screen Clients for Legal Assistance using Client Information System (CIS) later in this chapter for more information about CIS. Chapter 3 Legal Assistance Page 216

223 (3) If one party in a conflict is seen as a client in the Legal Assistance Office the other party normally may not be seen by that same attorney or others in that Legal Assistance Office. (Military status does not matter in this case. If a family member or spouse forms an attorney-client relationship prior to the Soldier, the Soldier will have to be referred out to another attorney.) (4) This is in most cases due to a supervisory relationship that another attorney may have in that same office. A Staff Judge Advocate or Deputy Staff Judge Advocate may have a potential conflict due to the fact that at some point they may be called upon to provide guidance or advice to the other party in the case. The other party may be a member of the Soldier s chain of command. Procedures will be established by supervisory attorneys to ensure the following [AR 27-3, Paragraph 4-9b(1)-(4)]: (a) All clients are screened to avoid inadvertent conflicts. (b) Explanations are given to every client who cannot be seen due to a conflict. The explanation given must not violate attorney - client confidentiality to the client who first sought legal assistance from the servicing office. (c) Clients who cannot be assisted due to a conflict are properly referred to another Legal Assistance Office or to a civilian attorney. (d) The confidentiality of attorney-client communications is protected. 5. Maintaining Office Control - It is very important that you maintain control of the legal assistance office at all times, primarily the client waiting area. This is vital to maintaining a professional environment. A well-controlled office allows the attorneys to concentrate on assisting their clients; it makes the clients feel more comfortable and makes for an overall pleasant work environment. If you have a television for your clients, ensure that the volume is kept at a normal level. If you have books and magazines periodically check to make sure that they are kept neat (also check to make sure that they are not extremely out of date). Ensure that your office is neat, clean and in an orderly fashion. The bottom-line is to take pride in your office and make it one that clients will want to be in. a. Different Types of Clients The major challenge you will face in controlling your office is dealing with difficult clients. You have the potential of dealing with hundreds of clients with a wide range of personalities, legal issues, and ideas. You will deal with U.S. Army personnel, their dependents, retirees and their dependents and various others. You will normally have a Noncommissioned Officer available to assist you or an attorney easily accessible, however that is not always the case. There will be times when you are left there at the front desk to deal with it on your own. Chapter 3 Legal Assistance Page 217

224 (1) Senior in Rank this will most often be the case. This one is fairly simple. Give them the appropriate military courtesy due to their rank or grade and treat them with respect. There will be times, however, when this client will try to intimidate you into doing something that you cannot or should not do, such as prepare or notarize a document illegally or order you to get them in to see an attorney right now. Of course you should not do what they ask if you know it is illegal. Inform them that you cannot do it and why. If they persist, contact your immediate supervisor. There will be certain cases where rank will have its privileges, mainly where appointments are concerned, but this should be rare. These senior officers and noncommissioned officers are very busy and are due a certain additional amount of respect and service. Their schedules are a lot stricter than that of the average Soldier. Special arrangements may be made to accommodate them; however this is not the norm and should not be done to an extent so as to disrupt the normal operation of the Legal Assistance Office. If exceptions or special arrangements are made, they will be authorized by the supervisor (NCOIC/OIC). (2) Spouse who wears the Soldier s rank This client will normally do the same thing as the Senior in Rank client; however this is a family member spouse or other family member who attempts to use the sponsor s rank to get favorable treatment. The phrase most often used is, Do you know who my spouse is? (3) Self-made emergency This client is one that receives notification of a pending legal action or issue that requires a response or action within a certain time and receives the notification in plenty of time, but waits until the last minute to seek assistance. They will most often come in at the last minute and say that they have an emergency and have to see an attorney right away. (4) Conflict Client This client may be the family member or the Soldier. Most often the case will be a domestic issue (divorce) where one party has been seen in your office and has thereby disqualified the other party from being seen by your office and will have to be referred elsewhere. They normally become irate and cannot understand why they cannot be seen at this office. It is especially difficult for the service member to understand why he or she cannot be seen if they are the one that, wears the uniform. Normally a complete explanation will calm them down a little. Remember though, that the explanation must not violate the duty of confidentiality to the client who first sought legal assistance from the Legal Assistance Office. Earlier, we discussed the conflict of interest that could arise from a legal separation. If the second party came into the office seeking counsel after the first party had already been counseled, you could inform them that they could not be assisted at that office. (5) I Want It Now! This client fails to realize that they are not the only one that requires assistance. They will normally allow themselves very little time to get the service they need and will come in and want to be taken care of immediately. They normally get irate when they cannot get an appointment in a suitable amount of time or have to wait for another service. Chapter 3 Legal Assistance Page 218

225 (6) Retiree - This is the former military clients who has served in the Armed Forces and retired. They sometimes have driven a substantial distance to get your office to get the assistance they need. The last thing that they want to hear is that they cannot be seen. Some will come in and just want immediate service with no excuses because they have served and feel they deserve it, and they do. It is just not always convenient for them to get what they want, when they want it. (7) No Longer Authorized Assistance - This client is one who was previously authorized legal assistance (most often because they were married to a service member and have since divorced). They will come in, even though they no longer have a military identification card (ID), and try to get services for themselves (power of attorney, notary, will, etc.). If the former military spouse is seeking service on behalf of the dependent child, then they ARE authorized service. (8) Talker - This client is one who normally has a huge complex problem or numerous small ones that have hit all at once. They may not need to see an attorney and in some cases may not even want to. They often just want to tell someone their story or cry on someone's shoulder. Sometimes that person will be you. In some cases the problem may be one that the attorney can assist them with, but they don't want to proceed at that time. They just want someone to hear them out. (9) Normal - The majority of your clients will be normal and won t cause any problem at all. Most of the clients you deal with will be polite and considerate and understand how the process works. A little explanation may be all that they need. The reality is that all clients just are not this way. b. In dealing with any of these clients, it is important that you keep your military bearing and be professional. Secondly, you have to know when you can handle it and when you need to get some assistance from the NCOIC or possibly one of the attorneys. Third, if at all possible do not battle with a client in front of other clients. If you need to discuss an issue or are having a disagreement with a client, and you have the facilities to do so, attempt to have them step into an office or at least away from the desk and other clients so you can speak with them. This may be difficult in some cases if the client is already upset. If at any time you feel that you cannot handle the situation, or are being mistreated by someone senior to you, ask him or her to please hold on or wait just a minute and go and get someone who can more appropriately handle the situation. This will normally be your NCOIC. If they are in a position where they can hear or see what is going on, they will normally step in and handle it without your request. Even if you have to go to another section to get assistance, do it. Do not let a client put you in a position where you lose control and ruin your career. If you can t handle it, get someone who can. AR 27-3 AR Performance Measures: None. References Chapter 3 Legal Assistance Page 219

226 Screen Clients for Legal Assistance using Client Information System (CIS) Condition: You are a Paralegal working in the Legal Assistance Office at your installation. One of your many duties is to screen potential clients to ensure that they are authorized service. You must be able to conduct a conflict check using CIS to ensure a potential client is able to be seen in your office. You must also be able to create a new client entry into the CIS database for future reference and reporting. You have access to AR 27-3, AR 27-26, a computer with internet access, and CIS. Performance Steps: 1. Request a government identification card from the person requesting assistance. 2. Your potential client must fall into one of the categories below for service: a. Active component members of the Armed Forces of the United States (and their Family members). b. Reserve component members of the Armed Forces who: (1) Are serving on active duty pursuant to orders for more than 29 days (and their family members). (2) Are serving on active duty pursuant to orders for a period of 29 days or less (and their Family members). (Supervising attorneys may limit legal assistance to emergencies or to certain categories of cases based on availability of expertise or resources.) (3) Are undergoing pre-mobilization legal preparation (PLP) (and their Family members). (Supervising attorneys may limit legal assistance based on availability of expertise or resources.) c. AC and RC members of the Armed Forces of the United States who are receiving military retirement or disability pay (and their Family members). d. Surviving family members of AC, RC, and retired members of the Armed Forces of the United States who would be eligible for legal assistance if the retired member were alive. e. Department of Defense civilian employees: (1) Against whom pecuniary liability has been recommended under AR with regard to presenting matters in rebuttal to, or on appeal from, such charges. Chapter 3 Legal Assistance Page 220

227 (2) Who are serving with the Armed Forces of the United States in a foreign country (and their Family members who accompany them). (3) Who have accepted employment outside the United States or who, if already on such duty, return to the United States on home leave (and their Family members who will accompany or have accompanied them (Legal assistance is limited, as determined by the supervising attorney, to matters that relate to processing for employment or, for an employee on home leave, to help with an ongoing legal assistance matter being handled outside the United States). (4) Who are in the United States, its possessions, or territories, and who are designated as mission-essential or emergency-essential civilian personnel (and their Family members on deployment related matters, but only while the employee is deployed). (5) Who are neither "mission-essential" or "emergency essential," but who work in the United States, its possessions, or territories and who are notified that they are to deploy to a combat zone or on a contingency operation (and their Family members on deployment related matters, but only while the employee is deployed). (These employees may receive legal assistance on matters related to their imminent or actual deployment. Legal assistance is limited to matters, as determined by the supervising attorney, that relate to deployment. Legal assistance is authorized for employees and Family members for a reasonable period after the employee returns from deployment to close out ongoing legal assistance matters related to deployment that arose before or during deployment.) f. Civilian contractors accompanying the Armed Forces of the United States outside the United States (and their Family members who accompany them), when DoD is contractually obligated to provide this assistance to such personnel as part of their logistical support, as indicated below: (1) The legal assistance provided must be in accordance with and not prohibited by applicable international agreement, or approved by the host-nation government in some way. (2) Legal assistance is limited to ministerial services (for example, notary services), legal counseling (to include the review and discussion of legal correspondence and documents), legal document preparation (limited to powers of attorney and advanced medical directives) and help on retaining civilian lawyers. g. Primary next of kin (PNOK) as defined in AR , Glossary Section II, executors, personal representatives, administrators, and legally recognized estate representatives for matters relating to the settlement of estates of: (1) AC or RC service members who die while in a military duty status. Chapter 3 Legal Assistance Page 221

228 (2) U.S. citizens and nationals who are civilian employees of the Department of Defense and who are serving with or accompanying U.S. Armed Forces outside the United States at the time of their deaths. h. Fiduciaries, including those who hold powers of attorney, who have been appointed by those listed below to manage their property or handle their personal affairs. (Legal services are limited to matters that would otherwise be within the scope of the legal assistance program if the grantor were present.) (1) AC or RC service members who are serving in a combat zone or contingency operation. (2) U.S. citizens and nationals who are civilian employees of the Department of Defense and who are serving with or accompanying U.S. Armed Forces in a combat zone or contingency operation. i. Members of other military forces while serving in the United States (and their family members who accompany them). j. Prisoners who, although discharged from military service, still remain confined within a U.S. military confinement facility. NOTE - Legal assistance may be provided over the telephone to a person claiming to be an eligible client only in the absence of a reasonable alternative. 3. Find out why the client is visiting the legal assistance office. Some clients prefer not to discuss their issues in the public setting of a legal assistance office. If this is the case attempt to find a private room to discuss the client s legal issue. 4. If the client is seeking a power of attorney, a notarized signature, or other service not requiring direct consultation with an attorney provide the needed service. If the client seeks a consultation with an attorney conduct a conflict of interest check and proceed accordingly. AR 27-3, Paragraph 4-9 covers conflicts of interest. NOTE - A conflict check is designed to make sure the same legal assistance office does not represent opposing parties on the same or different matters. This is most commonly accomplished by using the CIS database but can also be done using the client card file. There are exceptions in the area of conflict of interest. Refer to the regulation listed above or your NCOIC, or OIC of the Legal Assistance Office. 5. Determine (IAW AR 27-3, Paragraph 3-6) if the type of case is something the legal assistance office is authorized to help with. 6. Determine if the client has ever been seen in the legal assistance office. If so, check to see if there is a client card on file or log into CIS to see if the client is in the database. If not, have the client fill out a DA Form 2465 (client card). Chapter 3 Legal Assistance Page 222

229 NOTE: A Staff Judge Advocate may deny legal assistance for a period not to exceed one year to any eligible person who abuses legal assistance privileges. Common reasons for denying service are: 1. Missing two or more legal assistance appointments without good cause or prior notification. 2. Misconduct, dishonesty, or other unbecoming conduct during the course of seeking, receiving, or using legal assistance. 3. Knowingly using a legal assistance service for a purpose prohibited by law or regulation. Client Information System (CIS) 1. Introduction to Client Information System (CIS). a. CIS is a system utilized by Legal Assistance Offices throughout the JAG Corps. This system, when used correctly, allows Legal Assistance Offices and their personnel the ability to track information as it pertains to their clients, the services provided to them, and the amount of mass assistance provided to Soldiers, their family members, and all other eligible recipients. CIS will allow you to enter a client s information, as well as to modify their information to reflect services they have recently been provided. b. CIS will also allow you, as a paralegal, to create reports based on the services provided. c. As a user of CIS, you will be required to log-in using your Army Knowledge Online (AKO) credentials. In addition, you will also need to have an established JAGCNet account. If you do not already have a JAGCNet account, ensure you coordinate with the NCOIC of the Legal Assistance Office in which you work. When you access CIS, you will do so under one of the established roles as described below: (1) Readers - This is a person who may view client and service information contained in CIS, but who cannot modify it. (2) Editors - An editor, which is the role you will more than likely assume as a paralegal, is allowed to enter, modify and delete cases and clients within CIS. They are also able to run reports and queries within CIS. (3) Administrators - The administrator has all the abilities of both the reader and editor and in addition can also update service fees related to services provided that a client could expect to pay a civilian attorney. In most instances, the administrator duties will be performed by the Legal Administrator, the Noncommissioned Officer in Charge (NCOIC) of Legal Assistance, and the Chief of Legal Assistance. NOTE For more information about CIS please refer to the CIS Users Manual on JAGCNet. Chapter 3 Legal Assistance Page 223

230 d. The CIS User Manual, which will be referred to as the manual, is intended for all users of CIS, regardless of level. If you are assigned as the administrator within your office, pay special attention to appendix A, which covers CIS Administration. e. In order to access CIS, you will need access to the internet. Enter in the address line of your browser and press enter. You will now see the home page for JAGCNet. On this page, you will log-in in one of two ways, as you can see in the upper left hand corner of the screen. You can either manually enter your AKO credentials, or you can use your Common Access Card (CAC) Login. When using your CAC to log-in, the computer will read your identification card and you will be prompted to enter your Personal Identification Number (PIN). f. You will now be presented with the secure JAGCNet Portal Screen. This screen will allow you enter the different areas of JAGCNet. For the purposes of this class, you will now click the Legal Assistance Tab, located along the right side of the screen. g. Once you have clicked the Legal Assistance Tab, you will now see a list of CIS Databases in the middle of the page. The benefit of having CIS as a web based program is that you can access a database from anywhere that you have an internet connection. The database for your office is not contained on one computer and can be accessed from any computer throughout the building, or even the entire post by merely logging into JAGCNet. You will now scroll down until you find the database that represents the Legal Assistance Office that you are working in and clicking on it. h. You are now at the CIS Home Page Screen. From here, you will be able to access all the functions available to you in CIS. 2. Entering Client Information into the CIS Database. a. Any database that you use will only be as good as the data that goes in it. To ensure that our database, in this case CIS, is as useful as possible, we have to make sure that we are accurately entering the client s information into it. To do this, we will utilize a Client Legal Assistance Record (CLAR). When a client is initially assisted, you as the Paralegal should always ask if they have been seen at that particular Legal Assistance Office before. If they have, and they let you know that they have previously completed a CLAR, you can be sure that their data is in CIS. If for some reason they have not, or if this is there first time visiting the Legal Assistance Office, you will provide them with a blank CLAR and ask that they complete Blocks 1 thru 12 and return the card to you. b. The CLAR will accompany the client s folder when it is provided to the Legal Assistance Attorney providing the service to the client. This is where the second set of information will be entered onto the CLAR. Chapter 3 Legal Assistance Page 224

231 c. The Attorney will complete all information located below the line. Once done consulting the client, the Attorney will make note of any and all services provided to the client in this section. They will list the topics discussed, as well as any documents that may have been drafted on behalf of the client during their visit. We will go over this portion more in depth later, when we discuss entering the information into CIS. When the Attorney has completed their consultation, they will provide you with the client s folder and the CLAR for it to be input into CIS and subsequently filed. d. We will now enter the information from the CLAR directly into the CIS Database. This can be accomplished by clicking on the New Client tab along the left side of the screen. e. You have now entered a new client into the CIS Database. This will allow you to, in the future, query information relevant to that client. You may also search for case specific data in regards to that client, or perform what is known as a conflict. 3. Using CIS. a. We will now go over some of the functions, using CIS, which you will perform on a daily basis in a Legal Assistance Office. Under the Find section of the main menu, you are able to search for clients, cases, and possible conflicts between clients. We will now go over these functions a little more in depth. (1) Find Conflicts - The find conflicts feature will let you search the database to ensure that there is not a conflict of interest between the client and either one of the Legal Assistance Attorneys or another party that has been advised by the Legal Assistance Office. A conflict will more often than not occur in a situation where a Soldier and their spouse are getting separated. Both parties cannot be advised by the same attorney, as that would present a conflict of interest. The attorney cannot, in good faith, effectively represent both parties in a separation. As a result, once of the clients will be referred to another attorney or another office entirely. You may also see a conflict arise from a business endeavor two or more Soldiers have engaged in that went sour. Always remember that whenever a prospective client seeks advice from the Legal Assistance Office you should run a conflict check to ensure they are receiving appropriate guidance from counsel. - The Find Conflicts feature lets you determine if any conflicts of interest possible exist between your office and a potential client or an adverse party. This feature is important to use before undertaking any case or service within your office. - To find a potential conflict, perform the following steps from the any upper-right hand portion of any screen within CIS. - Click Find Conflicts and the screen will appear. Chapter 3 Legal Assistance Page 225

232 (2) Find Clients - A client is any individual who has been counseled by one of the attorneys in your Legal Assistance Office for a variety of reasons. The CIS Database will allow you to search for a client, edit their information, as well as add additional services that have been provided by your attorney. As stated previously, the first thing you will do is perform a conflict search. If the potential client is not a conflict, you will then perform a search to see if their information has been entered into the database. Even if a client has assured you that they have previously completed a CLAR, this search will still be conducted prior to their being counseled by your attorney. - After a conflict check has been performed you must then check to see if the potential client has been seen by your office before. - To search for a client, perform the following steps from the Find menu, which is visible on the left-hand menu from any screen within CIS. Click Find Client and the Find a Client screen will appear. (3) Editing a Client - A client will often come back one or more times in order to have their issue resolved. Every time a client is seen by an attorney, the services provided portion of their record must be updated (depending on the services that attorney provided). A client s personal information may also change over the time that they are counseled at the Legal Assistance Office. (4) Searching for Client Cases - When a client has completed a CLAR and their data has been entered into the CIS Database, you may now search for their data. You may either do so to add a case, which will be covered in the next section, or to update their administrative data. - To determine if a case already exists for a given client, perform the following steps from the Find menu, which is visible from any screen within CIS. Click Find Case and the Find Case screen will appear. (5) Adding a Case You can add services for the client once you have added the new client into the CIS. The services represent what the attorney, or you as the paralegal, has done for the client. This can range from the attorney counseling the client on a business matter to you as the Paralegal drafting a POA or Will for them. Each service has its own code and will be reflected in the clients entry within CIS. - If this is the first time your office has provided legal assistance to a particular client, ensure that this client s information has been entered into CIS under New Client before attempting to add their case information. In addition, ensure that you annotate each client s visit to the Legal Assistance office, even when the client returns for additional assistance on an open case such as to discuss a separation agreement or to execute a will. Chapter 3 Legal Assistance Page 226

233 - After you determine that a given case does not already exist in CIS and you have added a given client s information, you then need to create a case entry associated with the given client. Client Screen. - To add a new case in CIS, click on the Case tab from any active (6) Editing a Case - Often, you will be required to update a case that has already been added to a client s record. (7) Mass Assistance. As a Paralegal, you will often be called upon to assist in Soldier Readiness Processing (SRP). An SRP is normally held when a unit is preparing to deploy overseas. It affords the command the opportunity to ensure all of their Soldiers are prepared to deploy. Soldiers will process through many stations. They will process through the medical station, ensuring things such as vaccinations and allergies are identified and recorded. They will go through a finance station, ensuring they are being paid adequately and that they are fully aware of the increased allowances they can expect to receive when they enter a combat zone. As a Paralegal at an SRP site, you will ensure that Soldiers are able to get some of the legal documentation they may need right at the SRP site. This includes, but is not limited to Powers of Attorney, Wills, and affidavits. As is often the case, the Soldiers processed through the SRP will number in the hundreds. Instead of inputting data from a CLAR on each and every Soldier that is seen, you will instead create an In-Office Mass Assistance Entry. This will combine all of the services provided into one entry. - To create In-Office Mass Assistance, perform the following steps from the CIS Create menu, which is visible from any screen within CIS. appear. - Click Office and the In-Office Mass Assistance screen will 4. Conducting Reports and Queries - One of the main reasons for utilizing a Database is for the ability to gather that information up in a specific search. A report created in CIS can provide information that is very important to the Legal Assistance attorney as well as to the paralegals working there. The information gathered can be helpful in the administration of the office as well. If you have conducted a search on the number of clients who came in merely to ask questions and advice about a possible separation, but never went through with the actual separation being drafted or completed, it can tell you a lot. If the clients never went through with the separation, maybe there is a simpler way to get the information they need compared to setting up an appointment with an attorney. This may be a situation where an information paper can be helpful. It could be drafted by the attorney, giving general information in regards to separation, and can be handed out at the front desk without need for scheduling an appointment with an attorney. In this instance, running a query and taking a look at the gathered data has helped your Legal Assistance office become more efficient. Chapter 3 Legal Assistance Page 227

234 AR 27-3 AR CIS Users Guide References Performance Measures: None. Chapter 3 Legal Assistance Page 228

235 Conduct Notary Services Condition: You are a Paralegal working in the Legal Assistance Office at your installation and an eligible client has asked you to notarize certain documents. You have access to AR Performance Steps: Notary: A "notary" or "notary public" is a person authorized to administer oaths and to certify documents as genuine. Military notaries are authorized by federal statute Title 10, United States Code, Section 1044a. That statute also requires all states and US territories to honor the notarial acts of military notaries. A notarial service helps make the statements in affidavits, powers of attorney, and other documents more official and promotes their acceptance. A notary's certification on a document assures whoever examines it that it is what it appears to be. 1. Determine if the client is authorized service IAW AR 27-3, (The Legal Assistance Program). In addition to those personnel authorized service IAW AR 27-3, the following people are also authorized notarial services IAW AR 27-55: a. All individuals serving with, employed by, or accompanying the Armed Forces outside the United States. b. All other individuals subject to the Uniform Code of Military Justice (UCMJ) outside the United States. c. DoD civilian employees on matters relating to their official duties (for example, an affidavit or a sworn statement in support of department litigation). NOTE: Who can be a military notary? a. All Judge Advocates and warrant officers who possess a MOS of 270A. b. NCOs who - 1. Possess a primary MOS of 27D 2. Serve under the immediate supervision of a judge advocate or Department of the Army (DA) civilian attorney. 3. NCOs in the grade of E 6 or higher who possess a primary MOS of 27D and are assigned as legal NCOs for Brigade or larger units, whether or not they work under the immediate supervision of a Judge Advocate or DA civilian attorney. (RC legal NCOs, however, must have specific authorization from their supervising SJA to perform notarial services independently in a non-duty status). c. All DA civilian attorneys serving as legal assistance officers. d. Those DA civilian employees appointed by their supervising SJA serving under the immediate supervision of a Judge Advocate or DA civilian attorney. Chapter 3 Legal Assistance Page 229

236 e. All adjutants. f. Soldiers in the rank of PFC (E3) and SPC (E4) who have been provided training, are mature, experienced, have received written approval from the supervising Staff Judge Advocate, and serve under the immediate supervision of a Judge Advocate or DA civilian attorney. 2. Determine what type of notary service is to be conducted. Common services are powers of attorney, affidavits, certified copies, insurance papers, bank papers, and real estate transactions. NOTE: Notaries may make certified copies of some original documents provided that the notary determines that the copy to be certified is a full, true, and accurate transcription or reproduction of the original document. Notaries will not make certified copies of public records or of publicly recorded documents (such as court records, birth certificates, marriage certificates, death certificates, car titles, computer generated tax returns, and military leave and earning statements). Military notaries may authenticate copies of public records or publicly recorded documents from an official source for the following limited purposes: a. Military administration, including finance and personnel administration. b. Federal administration where allowed by law or other regulation. For example, the Department of Veterans Affairs (VA) allows designated judge advocates to authenticate documents for the VA. Authentications of copies of public records, or publicly recorded documents from an official source, will state the purpose for which authenticated (for example, "Authenticated Copy for DFAS," "Authenticated Copy for VA." See AR 27-55, Figure 4 2, for a sample format of a document authentication. 3. Determine if witnesses will be needed to complete the notarization. 4. Ensure that the client is acting of their own free will. NOTE: Individuals authorized to provide notarial services will not: a. Notarize unsigned documents. b. Certify the authenticity of public, official, registered, or court records or documents, nor issue certified copies of such documents or records unless allowed to do so under AR c. Take an affidavit or an acknowledgment unless the individual who signed the document is actually in their presence. If an oath or affirmation is authorized or required, the notary will administer the oath or affirmation to the individual in person. d. Execute a notarial certificate containing a statement known by the notary to be false. e. Perform any action with intent to deceive, such as predating or postdating a document. f. Authenticate the signature of an individual who did not personally appear before the notary at the time his or her signature was affixed to the document unless the document is resigned in the presence of the notary. (See AR 27-55, para 4 3c). g. Perform a notarial act or take an acknowledgment when the notary is a party to, or directly interested in the transaction. Chapter 3 Legal Assistance Page 230

237 h. Serve as the only witness and as a notary in the same transaction. i. Solemnize marriages as part of their official notarial duties, even if authorized to do so under a state or foreign law granting notaries such authority. j. Provide legal advice unless the notary is also an attorney. While a notary may draft an appropriate power of attorney and answer basic questions concerning that draft, the non-attorney notary may not provide legal advice nor interpretation. k. Notarize a general power of attorney before determining that the client has received advice from an attorney on the nature and effect of a general power of attorney. This advice may be provided to the client in person, via telephone, in a videotaped briefing, or by a written handout prepared by the attorney. l. Perform notarial services as an RC enlisted notary in a non-duty status without the prior approval of their supervising SJA. Additionally: a. Notarial authority will not be delegated to another person. b. No notary will perform, or be ordered or otherwise required to perform a notarial act that the notary believes: 1. Is for a transaction that the notary knows or suspects is illegal, false, or deceptive. 2. Is for a person who is being coerced. 3. Is for a person whose demeanor causes compelling doubts about whether the person knows the consequences of the transaction requiring the notarial act. 4. Impugns or compromises the notary s impartiality. 5. Is prohibited under this regulation. 5. Verify that the document being notarized pertains to the client being serviced (check their I.D. against the document). Ensure the document is completely filled out and that any blank spaces are filled in with N/A to make sure that the document cannot be altered. 6. Determine if an Acknowledgement is required. NOTE: An acknowledgment is a formal declaration or admission made by the free act or deed of an individual and executed before a properly authorized official (notary). An acknowledgment includes a certificate or written evidence of the act of acknowledgment made by the notary, as well as the act itself. Acknowledgments relate primarily to documents affecting land, and many state statutes require that deeds, mortgages, leases, and powers of attorney to convey land or an interest therein be acknowledged. 7. Have the client sign the document in the notary s presence. If the individual signed the document outside of the notary s presence have the client re-sign the document. 8. Ensure the document is dated. Post-dating and pre-dating is unauthorized. Chapter 3 Legal Assistance Page 231

238 NOTE: Violation of the rules set forth in AR is punishable under Article 92 or Article 107, UCMJ. 9. All notarial services performed under the authority of 10 USC 1044a will also be accompanied by a citation to the authority of the individual to provide the service. For example: Under the Provisions of AR 27-55, paragraph 2-2(a)(2) (would be used for someone possessing a primary MOS of 27D). 10. Fill out or have the client fill out the notary log. NOTE: A notary log is required to be kept by all notaries. The log is not subject to Army filing procedures and should remain with the notary at all times. A notary log should include the name of the client, their signature, the type of document being notarized, the date, and the location where the notarization was done. AR AR 27-3 References Additional notary information: Civilian employees reimbursed by the United States Government for the costs and expenses associated with obtaining and using their civil notarial commission and seal in performance of their official duties are not prohibited from providing notarial services privately, as long as such services are provided without the use of government property when they are off-duty and off the installation. No fee may be paid to, or received by, Army personnel for providing notarial services during the course of their duties under this regulation. Chapter 3 Legal Assistance Page 232

239 Performance Measures: Use AR while taking this test. 1. True or False: A 27D PFC can notarize documents if authorized by the SJA. Provide a cite for your answer. 2. What U.S. Code provides the authority for certain Army personnel to be notaries? 3. Soldiers performing services as a notary should be under the immediate supervision of an attorney. Define immediate supervision. 4. True or False: A 27D in the rank of SFC (E7) has been granted the authority to be a notary IAW AR 27-55, Paragraph 2-2. The SFC can administer the oath to an officer swearing to the charges of a General Court-Martial in Block 11 of DD Form 458 Charge Sheet. Provide a cite for you answer. You may need to look in the MCM. 5. When is it permissible to notarize an unsigned document? Provide a cite for your answer. 6. True or False: It is never acceptable to have a person re-sign a document that was originally signed outside of the notary s presence. Provide a cite for your answer. 7. True or False: It is acceptable for enlisted reserve component personnel to conduct notary services IAW AR in a non-duty status as long as they have prior approval from their SJA. Provide a cite for your answer. 8. True or False: Notary Logs must be filed IAW Army regulation. Provide a cite for your answer. 9. True or False: It is never acceptable to certify a copy of a public document or record. Provide a cite for your answer. 10. Define Apostille. See Appendix C-1 for the answers to this exercise. Chapter 3 Legal Assistance Page 233

240 Draft a Power of Attorney using Quickscribe Condition: You are a Paralegal working in the Legal Assistance Office at your installation and an eligible client has asked you to prepare a Power of Attorney. You have access to a computer with Quickscribe and AR Performance Steps: NOTE - A power of attorney is an instrument in writing by which a person (the principal) appoints another as their agent and grants the agent the authority to perform certain specified acts or kinds of acts on behalf of the principal. 1. Determine whether the client needs a general or special power of attorney. It is recommended that most clients get special power of attorneys. NOTE - A General POA gives very broad power covering a wide variety of topics. A Special POA covers one or more topics but is typically limited in its intent. 2. Open Quickscribe. Go to the Start menu of your computer, programs, Quickscribe, and then click on Launch Quickscribe. This will open the Quickscribe program. NOTE - Quickscribe is also referred to as Hot Docs and is available for download via JAGCNet. If you are experiencing difficulties downloading this program, get with either your local Information Management Officer (IMO) or your Legal Administrator for assistance. 3. If the client is requesting a general power of attorney ensure that they are counseled by an attorney concerning the nature and effect of a general power of attorney. Use one of the following methods: a. In person. b. Via telephone. c. Videotape briefing. d. Written handout on the nature and effect of a general power of attorney. 4. Determine whether the power of attorney is going to be durable and/or springing or not. NOTE - Durable powers of attorney are a written instrument by which a person (the principal) appoints another as his agent and by which the principal grants the agent the authority to perform certain specified acts or kinds of acts on behalf of the principal, and which specifies the authority conferred will either: a. Not be affected by the subsequent disability or incapacity of the principal. b. Springing means the POA will become effective upon the disability or incapacity of the principal. Chapter 3 Legal Assistance Page 234

241 5. Scroll through the open library box until you find the folder called power of attorney. Select this folder and then select the power of attorney file. NOTE - There is no written guidance as to how long a power of attorney can be valid for. Many installations and legal assistance offices set internal policies on expiration dates to protect the grantor against abuse. A power of attorney always loses authority upon death of the grantor. A common practice is to have a POA expire in three years from the date it was prepared. 6. Follow the steps using Quickscribe inputting information as necessary. NOTE - Using Quickscribe is not mandatory for preparing power of attorneys but it is a quick and accurate tool. 7. All military power of attorneys will have a heading in bold letters identifying it as either a general or special power of attorney. The following preamble will be directly below the heading: This is a military power of attorney prepared pursuant to Title 10, United States Code, Section 1044b and executed by a person authorized to receive legal assistance from the military services. Federal law exempts this power of attorney from any requirement of form, substance, formality, or recording that is prescribed for powers of attorney under the laws of a state, the District of Columbia, or a territory, commonwealth, or possession of the United States. Federal law specifies that this power of attorney shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the jurisdiction where it is presented. KNOW ALL PERSONS BY THESE PRESENTS NOTE - Title 10 United States Code, Section 1044b covers military powers of attorney. A military power of attorney is exempt from any requirement of form, substance, formality, or recording that is provided for powers of attorney under the laws of a State, and shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the State concerned. For purposes of this section, a military power of attorney is any general or special power of attorney that is notarized in accordance with section 1044a of Title 10 USC or other applicable State or Federal law. 8. There is no requirement to stamp or seal a military power of attorney. However, stamping or applying a raised seal will enhance the acceptance and professional look of the power of attorney and is desirable. NOTE A POA is only as good as the place where it will be used. Explain to the client that they should get with the establishment where it will be used (if known) to ensure that they do not require any special language to be inserted into the POA. 9. Notarize the power of attorney. Ensure the authority line is entered for a military notary directly below the notary s name. Quote the paragraph in AR that gives the individual the notary power. For example: AR para. 2-2(a)(2). NOTE - Many legal assistance offices provide fill-in-the-blank style power of attorneys, this method is acceptable and in complete compliance with Title 10 USC 1044b. Chapter 3 Legal Assistance Page 235

242 AR AR 27-3 Quickscribe Title 10 USC 1044 References Performance Measures: None. Chapter 3 Legal Assistance Page 236

243 Draft a Will using DL Wills Condition: You are a Paralegal working in a Legal Assistance Office at your installation. Clients will come in to your office and want a will prepared for them. You must assist your attorney with the preparation and execution of the will for the client. You have access to a computer and the DL Wills program. Performance Steps: 1. The Will (sometimes referred to as Last Will and Testament ) a. A will is a legal document you use to dispose of your property at your death. It may also name people to do important jobs, such as administrator of your estate or guardians for your children. The maker of the will is called the testator. To be valid, a will must comply with specific legal requirements. If you die without a will, the intestacy law of the state where you were domiciled at death will determine who should receive your property. Your domicile is the state where you are a legal resident and is not necessarily the state where you resided or lived before your death. b. If you leave no valid will, the estate will be divided according to the "intestacy statutes." This generally means your spouse and child(ren) inherit your property or estate. If you die without a surviving spouse or child(ren), under State law certain other blood relatives receive the estate. This division can become complicated. These same laws also specify who will be in charge of the estate (called your personal representative or executor) and guides a judge in deciding who will be guardians for children. Little flexibility in these laws exists to provide for special needs or family security, a good case for being sure to write a will. 2. DL Wills Program - On 25 September 1999, the U.S. Army JAG Corps purchased a license to install Attorneys' Computer Network, Inc. "Drafting Libraries - Military Version Wills Library" (DL Wills - Military) on 2000 computer terminals. Effective 1 October 2000, this software program is the Legal Assistance minimum standard for preparing wills and estate plans. Legal Assistance personnel providing estate planning assistance under provisions of AR 27-3, Legal Assistance, will use DL Wills - Military (or commercial equivalent software that has the capability to prepare a disclaimer credit shelter trust). Prior legacy programs (e.g., Minuteman, Patriot Expert Systems - Wills) are no longer supported or authorized for use after 1 October DL Wills may be installed on the computer terminal of any authorized Army, Army Reserve, or Army National Guard Legal Assistance provider. Each installation must report how many systems that have the Wills Library on JAGCNet. NOTE For assistance with downloading the DL Wills program from JAGCNet get with your local Information Management Officer (IMO) or Legal Administrator. Chapter 3 Legal Assistance Page 237

244 3. Drafting a will Open the DL Wills program. Click on Prepare a new document, click the Next button as the selection for Wills is already highlighted, select a location for the document to save by clicking Browse. Once you have selected a location click Next. This will bring you to another menu where you will go through a series of questions which will assist with preparing the will. NOTE It is common practice to have a pre-printed Will Worksheet that asks all of the necessary questions for the information required to prepare the will. These can be picked up in advance and filled out before an appointment which will save time when it comes to drafting the will. Check local SOPs for the standards on will preparation and for an example of their Will Worksheet. 4. Executing a Will - Army Regulation 27-3, para 3-6(b)(2), requires an attorney supervise every will execution ceremony. a. Introduce yourself, the notary, and the witnesses. The notary should conduct the ceremony. The supervising attorney makes sure the ceremony is performed properly and reviews each Will before the Testator leaves the office. The attorney should explain the nature of the ceremony. Explain that the questions asked are necessary to ensure a properly executed Will that a Probate Court will accept without one or more of the witnesses coming to court to testify. After these introductory explanations are completed the Notary should conduct steps 2-5 below. b. Preparing to Sign the Will. The Testator should show his/her identification card to the Notary and the Witnesses. The Notary should ask the following questions of the Testator and wait for an affirmative oral response after each query. (1) Are you (name on the Will)? (2) Have you read this document? (pointing to the Will) (3) Is this your Last Will and Testament? (4) Does this document properly dispose of your estate and assets, according to your wishes, in the event of your death? (5) Would you like these two people (name the witnesses) to act as witnesses to your signature on this document? document? (6) Would you like (name the notary) to notarize the signatures on this (7) Are you at least 18 years of age? (8) Do you consider yourself to be of sound and disposing mind? (9) Have you taken any medication or other substance which may affect your judgment? Chapter 3 Legal Assistance Page 238

245 (10) Are you acting of your own free will? c. Signing the Will. Initialing each page of the Will is NOT a legal requirement. It serves only to integrate the Will. If your office chooses to have Testators initial each page then have them do that first (Note: be sure this is in compliance with the Testator s state because state law may stipulate no initials or signatures except on the signature page [e.g., New York]) and then sign the Will at the end of the document. DO NOT let the Testator sign the Attestation Clause or Self Proving Clause yet. (1) If the Testator initials each page then have each of the Witnesses initial each page (keeping in mind the Note above) of the Will and sign the signature page. DO NOT let the witnesses sign the Attestation Clause or Self-Proving Clause yet. (2) If your office chooses not to have Testators initial each page for integration purposes, just have the Testator sign at the end of the Will in the presence of the Witnesses. (3) If the Testator only signs at the end of the Will then have the Witnesses only sign the signature page after they witness the Testator sign. d. Swearing the Testator. When the Will is signed and witnessed, turn to the Testator, ask him to raise his right hand and have the Notary administer the appropriate oath: (Note: If the Testator wants to swear choose swear and so help you God ; if the Testator wants to affirm use only affirm.) EXAMPLE - Do you solemnly (swear) (affirm) that you are the same (Name from the Will) who signed this document as your Last Will and Testament; that you signed this document in the presence and hearing of these two witnesses; that the witnesses each signed in the presence and hearing of one another and of you? Do you further swear that you are at least 18 years of age or older, of sound and disposing mind, acting here today of your own free will, and are under no undue influence or coercion from any source, (so help you God)? Clause. (1) After the oath the Testator may sign the Attestation or Self Proving (2) Every state does not require the Testator to sign the attestation clause, so this would not be applicable in those states. e. Swearing the Witnesses - The Witnesses generally does not know the Testator well enough to swear or affirm that he/she is 18, of sound mind or acting on his or her own. They can, however, swear or affirm that to the best of their knowledge and belief he/she is. They can form this knowledge and belief based on their opportunity to hear the Testator s responses to the questions in b above, and their observations of the Testator before signing the Will. Therefore, it is important that you not ask them to swear that they know that he/she is 18, of sound mind, etc. Chapter 3 Legal Assistance Page 239

246 (1) Next, the Notary administers the appropriate oath to the Witnesses. If a Witness wants to swear choose swear and so help you God ; if a Witness wants to affirm use only affirm. EXAMPLE - Do you solemnly (swear) (affirm) that you are the same (name of person) and (name of person) who served as witnesses to the Last Will and Testament of (Name of Testator); that you each signed this document as witnesses in the presence and hearing of the Testator and of one another; and, that the Testator signed in the presence and hearing of each of you? Do you further swear that to the best of your knowledge and belief, the Testator is at least 18 years of age or older, is of sound and disposing mind and is acting here today of his free will and under no undue influence or coercion from any source, (so help you God)? (2) After the oath the Witnesses may sign the Attestation Clause or Self Proving Clause and the Notary can notarize the Will. f. Mass Will Executions. You should try to do Will executions for one person or one couple at a time. Mass will executions (defined in AR 27-3 as more than 5 wills at a time) are strongly discouraged. (1) However, in time of mass deployments, when simultaneous multiple will executions are necessary; modify the procedure above for more than one client at a time. Have the Notary ask the first four questions listed in para 2 above of each Testator, then ask the remaining questions to the group. Be sure there is an affirmative oral response from each of them. When it comes to the oath in para 4 above, have them raise their right hands and have the Notary administer the appropriate oath: EXAMPLE - Do you solemnly (swear) (affirm) that you are the same (Client 1), (Client 2), (Client 3) who signed these documents as your Last Wills and Testaments; that you each signed in the presence and hearing of these two witnesses, (name) and (name); and that they each signed in the presence and hearing of each of you? Do you each further (swear) (affirm) that you are at least 18 years of age of sound and disposing mind, acting here today of your own free will, and are under no undue influence or coercion from any source, (so help you God)? (2) The same procedures may be used for the multiple Witnesses. The Notary should ask if they swear or affirm that they witnessed the signatures of each Testator; that they each signed each Will in the presence and hearing of the Testator and of one another, etc. then have the Notary administer the appropriate oath: EXAMPLE - Do you solemnly (swear) (affirm) that you are the same (name of person) and (name of person) who served as witnesses to the Last Will and Testament of these Testators; that you each signed each document as witnesses in the presence and hearing of the Testator and of one another; and, that the Testator signed in the presence and hearing of each of you? Do you further (swear) (affirm) that to the best of your knowledge and belief, each Testator is at least 18 years of age or older, is of sound and disposing mind and is acting here today of his free will and under no undue influence or coercion from any source, (so help you God)? Chapter 3 Legal Assistance Page 240

247 g. Post Execution Briefing - The supervising attorney should conclude the execution ceremony with a short briefing about safeguarding the will. Make it clear to the Testator that the JAG office does not maintain the Will or generally even a copy of the Will. Impress upon the Testator that the Executor/Personal Representative should know where the original Will is kept and have access to that place. Tell the Testator to periodically review the Will and consider updating the Will in the event of significant life changes (divorce, marriage, birth or a child, death of spouse, or significant increase in financial worth). AR 27-3 DL Wills Program References Performance Measures: None. Chapter 3 Legal Assistance Page 241

248 Prepare, Process, and Review Voluntary Administrative Separations IAW AR Condition: You are a paralegal working in the Legal Assistance Office at your installation (or at a Brigade level legal office). Soldiers will come into your office to seek assistance with a voluntary administrative separation. You must assist these Soldiers with preparing and processing their request. You have access to AR Performance Steps: NOTE A Voluntary Administrative Separation does not have to be processed through a Legal Office. However, these actions must be in compliance with AR These Chapters may be prepared and processed by the Soldier through their personnel office of S Ensure that the Soldier qualifies for the Voluntary Administrative Separation for which they want to submit IAW AR NOTE For a list of Voluntary Administrative Separations, and a description of each, see Appendix C Voluntary Administrative Separations are requested by the Soldier through DA Form Filling out the DA Form 4187: a. ITEM 1 Enter the THRU (Intermediate Commander) Commanders Unit and Location. b. ITEM 2 Enter the TO (Approval Authority) Commanders Unit and Location. c. ITEM 3 Enter the FROM Commanders Unit and Location. d. ITEM 4 Enter the Soldiers full name. EXAMPLE Doe, John Q. e. ITEM 5 Enter the Soldiers GRADE of RANK and MOS. EXAMPLE: E5/27D20 or SGT/27D20 f. ITEM 6 Enter the Soldiers full Social Security Number. g. ITEM 7 N/A h. ITEM 8 Put an X in the Other Block and Specify Voluntary Separation. i. ITEM 9 Ensure the Soldier signs their signature in this block. j. ITEM 10 Ensure the Soldier puts the date in which they signed in ITEM 9. Chapter 3 Legal Assistance Page 242

249 k. SECTION IV REMARKS Ensure the Soldier puts all information required by the chapter. This is where the Soldier officially requests separation IAW AR and the specific provision of that regulation. All information and/or attached documentation will be mentioned in this section. There will be an enclosure list in this block explaining what documentation is attached to the request IAW AR and the specific provision for which separation is requested. l. ITEM 11 The immediate Commander will check the appropriate box for their recommendation. m. ITEM 12 Type in the name and rank of the immediate Commander. EXAMPLE COMPANY T. COMMANDER/CPT. n. ITEM 13 Ensure the immediate Commander signs in this block. o. ITEM 14 Ensure the immediate Commander puts the date in which they signed ITEM 13. NOTE For an example of a DA Form 4187 for a Voluntary Separation, see Appendix C Processing the Voluntary Administrative Separation. a. All Voluntary Administrative Separations will be requested by the Soldier and processed through the chain of command to the approval authority. b. The intermediate Commanders will sign a memorandum or endorsement of the requested separation. The memorandum will specify whether they recommend approval or disapproval of the requested separation and which characterization of discharge is recommended. They must also mention transfer to the IRR for appropriate chapters IAW AR NOTE For examples of the intermediate Commanders and approval authorities memoranda, see Appendix C-2. AR Reference Performance Measures: None. Chapter 3 Legal Assistance Page 243

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251 Chapter 4 Claims Table of Contents 1. Process and Adjudicate Personnel Claims through Carrier Notification 2. Process Carrier Recovery 3. Prepare and Process a Claim under Article 139, UCMJ 4. Process and Investigate Tort Claims 5. Process and Investigate Affirmative Claims 6. Process Foreign Claims Chapter 4 - Claims Page 245

252 Process and Adjudicate Personnel Claims through Carrier Notification Conditions: You are a Paralegal working in an installation Claims Office. You are given the task of processing and adjudicating a personnel claim through carrier notification. You have access to a computer along with AR and DA Pam Performance Steps: NOTE: The Personnel Claims Act limits payment to losses incurred incident to service. Under this Act, "incident to service" is a broad term that encompasses the circumstances of military living, such as frequent moves pursuant to orders, assignment to quarters, and duty in foreign countries. 1. Determine if the person is a proper claimant IAW DA Pam Determine if the type of claim is payable IAW DA Pam NOTE - Except in the case of Article 139 claims, when a claim is payable under one or more statutes the Personnel Claim Act will be used. 3. Determine whether the claim was submitted within the statute of limitations (two years from the time the claim accrues, and that the carrier was notified within 70 days of delivery of their goods. NOTE - For personnel claims any written demand for compensation may be considered a claim, even if no specific sum is mentioned or supporting documentation provided. At no time will a claimant be denied the opportunity to submit a claim because a lack of substantiation. NOTE - There is a new program called Full Replacement Value or FRV. For more information about FRV, please see Appendix D Determine whether the claim is cognizable IAW AR and DA Pam NOTE - Cognizable capable of being examined. 5. Determine if the small claims procedure can be used. The small claims procedure applies to claims that can be settled for less than $1,000 (although the claimant may claim more than $1,000) and that do not require extensive investigation. NOTE - These findings are necessary to award compensation under the PCA: a. The claimant is a proper claimant. b. The loss was incident to the claimant s service. c. The type of property claimed (the lost or damaged tangible personal property and compensable associated expenses) and the amount or quantity possessed were reasonable or useful under the attendant circumstances. d. The evidence substantiates ownership and value of the property, and the fact of loss or damage as claimed. Chapter 4 Claims Page 246

253 e. There is no bar to payment, such as a violation of the statute of limitations. f. The amount otherwise allowable has been reduced to reflect compensation from other sources, including insurance and lost potential recovery. If private insurance is involved, generally the claimant must settle with the insurance company first. The claim usually will be held in suspense until the insurance company takes action. A CJA or claims attorney may pay a claim before settlement with an insurance company if the claimant shows good cause. 6. Completion of DD Form 1840 (also referred to as the Pink Form ). The carrier must complete "Section A General which depicts the claimant s information and carrier s address. A continuation sheet may be used at delivery if there is insufficient room on the DD Form 1840 to list the damaged/missing items found at the time of delivery. The continuation sheet should be signed by the Soldier and the carrier. The carrier should not use any other form to list damages or losses. If no damage or loss is recorded, the "Description of Loss or Damage" should state "None." Both the claimant (or the claimant s agent) and the delivering carrier s representative will complete Section B (Record of Loss or Damage) and sign the form in blocks 14g and 15e. NOTE DD Form 1850 has also been used in the claims/goods shipment process. To see what this form looks like see Appendix D A claimant must list additional shipment loss and damage noted after delivery on DD Form 1840-R (the reverse side of the DD Form 1840) and present it to the claims office within 70 days of delivery. Claims personnel will ensure that the carrier s address and other information from section A on DD Form 1840 are copied onto the DD Form 1840-R. Claims personnel must sign and dispatch the form and all continuation sheets to the carrier within 75 days of delivery, listing the date the form was sent. A second signed and dated copy is retained in the field claims office, and a third is returned to the claimant as a receipt. If the claimant should bring in the DD Form 1840/R on or after the 70 th day, up to the 75 th day, the 1840/R can be faxed to the carrier to ensure timely notifications, with the hard copy to follow via regular mail. NOTE - DD Form 1840/1840R is provided by the carrier at delivery. DD Form 1840 is used to note damages at the time of delivery. DD Form 1840R is used for damages you discover after the carrier leaves. 8. Verify DD Form 1840 and 1840R have been completed and signed. 9. Provide the claimant with a signed copy of DD Form 1840R. 10. Forward the original DD Form 1840R (signed) to the carrier as soon as possible within 75 days from date of delivery IAW AR and DA Pam File the remaining copy of DD Form 1840/1840R in the office suspense file IAW DA Pam Destroy DD Form 1840/1840R IAW AR and DA Pam if no claim is filed within two years from the date of dispatch of the DD Form 1840/1840R. Chapter 4 Claims Page 247

254 DD FORM ITEMS 1-8. Verify that entries identifying claimant are completed, ensure the information is current as some individuals start the paperwork several months prior to submitting the completed claim. Additionally, ensure the information is legible; incorrectly inputted data will delay payment to the claimant. 18. ITEM 9. Verify that the "AMOUNT CLAIMED" block is completed, (very important!) NOTE - Ensure that the amount claimed agrees with the total amount claimed on DD Form ITEM 10. Verify the "CIRCUMSTANCES OF LOSS OR DAMAGE" contains an adequate description of who, what, when, where, why, and how loss, damage(s), or destruction occurred. 20. ITEMS Verify the claimant marked the appropriate "YES" and "NO" columns corresponding to each of the items. 21. ITEM 17. Ensure the claimant's signature agrees with the "CLAIMANT'S NAME" in ITEM 1. If signed by an agent, ensure a copy of a Power of Attorney (or in the case of a spouse, any contemporaneous writing) authorizing the agent to sign for the claimant is attached. 22. ITEM 18. Ensure the form is dated. 23. Verify that the appropriate blocks of DD Form 1844 have been completed if used. 24. Ensure DD Form 1844 and/or substantiating documents are attached to the claim IAW AR Obtain the claim number. INITIAL PROCESSING OF A SUBMITTED CLAIM (Same for all claims regardless of type) 26. Write the claim number on claim or DD Form 1842 if used. 27. Prepare claim file IAW AR and DA Pam : a. On top left of folder, print the name of claimant. b. On top right of folder, print the claim number as generated by the claims database. Chapter 4 Claims Page 248

255 28. Prepare the heading for the chronology sheet and include the chronology within claim file. Indicate on the chronology any problems identified concerning the claim, such as missing evidence or documents, companion bicycle claims, or any information that may assist in adjudication of claim. 29. Record claim information in the appropriate claims journal (DA Form 1667) IAW AR and DA Pam which is maintained separately. ADJUDICATION OF CLAIM DD Form In ITEM 16, list any preexisting damage (PED) from the inventory sheets, this will be used to determine the appropriate amount due the claimant. 31. In ITEM 19, list how the items were declared on the DD Form 1840 or 1840/R. If the item was noticed on the front of the 1840 put a 0 on the line that correlates to the item being claimed. The items noticed and listed on the 1840/R put an R on the line that correlates with the damaged item. This is important as the carrier has already taken responsibility for the items listed on the 0. Any item claimed on the DD Form 1844 that is not listed on the 1840 or 1840/R is NOT PAYABLE. 32. In ITEM 25, list the amount due the claimant. 33. In ITEM 26, use the adjudicator s codes to adjudicate the claim. These codes are listed in the DA Pam , Table 11-1, at the end of the Depreciation Guide. AR DA Pam AR References Performance Measures: None. NOTE Please see Appendix D-1 for a copy of all forms mentioned in this section. Chapter 4 Claims Page 249

256 Process Carrier Recovery Conditions: You are a Paralegal working in an installation Claims Office. You are given the task of processing carrier recovery. You have access to a computer along with AR and DA Pam Performance Steps: 1. Receive the claim file after adjudication and payment. 2. Review the file to ensure all required documentation is present. Coordinate with the transportation officer for necessary documents and/or inspections as applicable. 3. Ascertain whether action from a liable third party is required. Close the file if no recovery against third party exists or if the amount is less than $ Ensure that proper notice (by use of DD Form 1840/1840-R) has been given to the responsible third party IAW DA Pam Examine shipment documents (Government Bill of Lading (GBL), inventory sheets, etc.) for legibility and completeness to assist in determinations. Contact the carrier for missing GBLs. 6. Determine the amount of liability IAW DA Pam , Chapter 3, and the Joint Military-Industry Table of Weights, and Depreciation Guides, based on type of shipment and form of release valuation for which carrier is liable. NOTE - The type of shipment must be determined before the liability amount can be calculated. 7. Ensure all applicable portions of DD Form 1844 are completed IAW DA Pam Determine whether recovery action is to be processed locally, transferred, or forwarded for centralized recovery IAW AR and DA Pam Ensure that the demand against the carrier (DD Form 1843) is properly prepared and that the demand packet is assembled IAW DA Pam Ensure that the unearned freight packet has been prepared and included within file when loss or destruction of personal property is attributable to the GBL carrier. NOTE - The unearned freight packet is mailed after the demand against the carrier has been paid/ settled when the recovery was locally processed or is included within the demand packet that was forwarded for centralized recovery or when an impasse has resulted. 11. For claims under $1, ensure to dispatch the demand on the carrier within 30 days. For claims over $1, the file must be transferred to USARCS (after a 30 day hold to allow the claimant the opportunity to reconsider). Chapter 4 Claims Page 250

257 12. Ensure settlement offers (from third parties) received in response to demands are accepted or rejected within 30 days. NOTE - Coordinate decisions on whether to accept, reject, or compromise settlement offers with the NCOIC, Claims. 13. Ensure DD Form 1131 (Cash Collection Voucher) is prepared for payment checks received and that checks are secured in locked containers and delivered to the servicing FAO. NOTE For a copy of DD Form 1131 see Appendix D Ensure the offset action is processed IAW AR and DA Pam after 120 days have expired since date of dispatch of demand packet or upon impasse. NOTE - Unearned freight letters are attached to requests for offset forwarded to USARCS or the appropriate local contracting officer. (e.g., unearned freight letters are processed against GBL carriers ONLY, not local contractors) 15. Ensure the chronology sheet is maintained throughout recovery processing, to include records of correspondence with carriers. 16. Ensure appropriate data entries and action codes are made to the automated claim record and that prompted back-up procedures are used IAW the PCMP User's Guide. 17. Ensure the transfer of files upon completion of delegated authority action IAW AR AR DA Pam AR Performance Measures: None. References NOTE Please see Appendix D-2 for a copy of all forms mentioned in this section. Chapter 4 Claims Page 251

258 Prepare and Process a Claim Under Article 139, UCMJ Conditions: You are a Paralegal working in an installation Claims Office (or in a Brigade Legal Office). You are given the task to process a claim submitted under the provisions of Article 139, UCMJ. Performance Steps: NOTE - Article 139, UCMJ, provides an administrative mechanism for assessing and paying restitution to the victims of certain types of criminal offenses committed by military personnel subject to the UCMJ. Victims of these offenses often have no other adequate means of obtaining restitution. Article 139 ensures that a victim is compensated directly from the wrongdoer s military pay rather than from the United States Treasury. 1. Submitting the claim: a. The claim must be submitted within 90 days of the incident that gave rise to it (unless delay is based on good cause as approved by SPCMCA). b. The claim can be submitted orally or writing, however, it must be reduced to writing within 10 days of submission and must seek a specific sum amount. 2. Stamp or otherwise note on the claim the date the claim was received and the designation of the receiving command. 3. Verify that the claim is cognizable under Article 139, UCMJ, and AR 27-20, or DA Pam NOTE - Article 139 may not be used to hold a Soldier liable for negligent acts. Negligence is the failure to use the level of care that a reasonably prudent person would use under the same or similar circumstances. 4. Forward the claim within two days to the SPCMCA having UCMJ authority over the alleged offender. 5. If the claim appears cognizable the SPCMCA will appoint an Investigating Officer (IO) within four days of receipt of the claim (see DA Pam for an example of the appointment letter). NOTE - If claim is made against Soldiers of different SPCM jurisdictions, verify that claim was forwarded to GCMCA for designation of which SPCMCA will assume investigative responsibility. 6. Within 10 working days of appointment, the IO will complete the investigation. The SPCMCA may extend this ten-day period for good cause. The Claims Judge Advocate (CJA) or claims attorney should advise the IO before the investigation begins on the scope of the investigation, procedural steps to follow and restrictions on evidence. Chapter 4 Claims Page 252

259 NOTE - The IO will provide notification to the Soldier against whom the claim is made. If the Soldier makes a voluntary restitution to the claimant's full satisfaction, the claim will be dismissed. 7. The IO should submit findings and a recommendation to the SPCMCA on DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and will address each of the following conditions for payment: a. Whether the claim is brought by a proper claimant, in writing, and seeks a definite sum. b. Whether the claim is brought within 90 days of the incident that gave rise to it, or the claimant has shown good cause for the delay. c. Whether the claim seeks compensation for property belonging to the claimant that was wrongfully taken or willfully damaged by a member or members of the U.S. Army. d. Whether the claim is meritorious in a specific amount. 8. Within five working days (which the SPCMCA may extend for good cause), the CJA or claims attorney will review the IO s findings and recommendation and will advise the SPCMCA whether they are legally sufficient and supported by the evidence (see DA Pam , for a sample of the legal review memorandum). 9. The SPCMCA may disapprove the claim regardless of the amount or, if the findings and recommendation are legally sufficient, approve it in an amount equal to or less than the amount recommended by the IO for claims of $5,000 or less. The SPCMCA will notify both the Soldier and claimant in writing of the decision and of their rights to request reconsideration. The SPCMCA will then delay final action on the claim for ten working days pending receipt of a request for reconsideration unless this delay will result in an injustice such as the discharge of the liable Soldier from active duty and thus the Army s inability to disburse funds by pay. 10. Upon receipt of a request for reconsideration by either the claimant or a Soldier who has been assessed liability, the approval authority will direct the legal advisor to provide a recommendation. If the request raises an issue of fact, the approval authority may appoint an IO to make further findings. If the approval authority contemplates modifying the decision, he or she shall provide all parties to the claim with notice and an opportunity to respond. The approval authority will record the basis upon which the decision is modified and notify all parties. 11. For claims between $5,000 and $10,000 the GCMCA is the approving authority and above $10,000 the authority belongs to the Commander, USARCS (United States Army Claims Service). Forward the claim as necessary. 12. Verify that the SPCMCA notified the claimant and any Soldier against whom an assessment has been made of the action taken on the claim IAW AR Chapter 4 Claims Page 253

260 13. Verify that collection action is taken on any Soldier against whom an assessment is made IAW AR See DA Pam , for an example of the letter used by the approval authority to the servicing finance office. 14. Within ten working days of final action on the claim prepare a cover sheet for the claim and forward it, along with a copy of the claim, to the Commander, USARCS, ATTN: JACS PC. 15. Maintain claim file IAW AR and AR AR AR 15-6 MCM AR AR AR DA Pam Performance Measures: None. References Chapter 4 Claims Page 254

261 Process and Investigate Tort Claims Conditions: You are a Paralegal working at the Installation Claims Office and have been tasked to assist in the investigation and processing of a federal tort claim against the United States. Performance Steps: NOTE - TORT A private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. A violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction. There must always be a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of the parties. Three elements of every tort action are existence of legal duty from defendant to plaintiff, breach of duty, and damage as proximate result. (as defined by Black s Law dictionary). 1. Identify potential claims which may indicate any liability on the part of the United States by reviewing various source documents shown below and indicated in DA Pam , Chapter 2. a. MP Blotter entries, MP and CID Reports. b. Serious Incident Reports. c. Emergency Room Logs. d. Requests for records or claim forms. e. Local Newspapers. f. I.G. inquiries and investigations. NOTE - The claim begins when claims personnel learn of an incident, not when the claim is actually filed. 2. Ensure all incidents which may result in liability are recorded or (when possible) investigated immediately (to include visiting the scene of the incident, taking pictures, making sketches, or talking with anyone present who may have seen or heard the incident occur). Record any results on a Memorandum for Record (MFR), attach photographs, if applicable, and file for the period of the statute of limitations, plus six months. This record will come in handy when applying for the Claims Award for Excellence. 3. Verify that the following information was stamped or otherwise written on the front of the claim when received: a. The date the claim was received. Chapter 4 Claims Page 255

262 b. The designation of the receiving command or office. c. The initials of the person who received the claim. NOTE - The claim may be any writing that contains a sum certain, signed by the claimant, and which contains enough information to allow the Army to begin investigating the incident which gave rise to the claim. Normally, a claim will be presented on a Standard Form (SF) 95 (Claim for Damage, Injury, or Death). When the claim is not presented on an SF 95, the claimant will be requested to complete an SF 95 to ease investigation and processing. NOTE For a copy of SF 95 see Appendix D Verify the claim was submitted within time prescribed for filing IAW AR para (Statute of Limitations). NOTE - To be payable, a claim under any chapter must be filed no later than two years from the date of accrual as determined by Federal law. The accrual date is the date on which the claimant is aware of the injury and its cause. The claimant is not required to know of the negligent or wrongful nature of the act or omission giving rise to the claim. The date of filing is the date of receipt by the appropriate Federal agency, not the date of mailing. 6. Verify the claim is cognizable under AR and the Federal Tort Claims Act (FTCA). Consult with a CJA or claims attorney if the claim is not apparently cognizable or for decision if claim appears cognizable under more than one claims statute. 7. Verify claimant is a "proper party" claimant (AR para. 2-10). 8. Verify all items of SF 95 are completed IAW the instructions on the form. See DA Pam , for an example of how to properly fill out SF Verify the claim file is prepared, maintained and assembled IAW DA Pam Prepare the mirror file if necessary IAW DA Pam Determine, after consultation with the CJA, whether the small claims procedure may be used to investigate and adjudicate the claim; i.e., for claims which may be settled for less than $2, Verify if receipt or rejection of the claim has been acknowledged; notify the CJA or claims attorney of deficiencies. a. Attempt telephonic acknowledgment when possible, and prepare a memorandum of call for the file. Chapter 4 Claims Page 256

263 b. Prepare formal written acknowledgment by letter (except when not required, as in cases processed under the small claims procedure). When acknowledged by letter, include a copy of the claim showing receipt. Examples of these letters are contained in DA Pam c. When received, file acknowledgment of letter. 13. Determine if the claim can be settled using small claims procedures IAW DA Pam NOTE - Although their use is optional, small claims procedures should be used when a tort claim can be settled for $2,500 or less. Small claims procedures should be used as much as possible. Many claims offices fail to use them because they believe tort claims are different and require more formal proof than do personnel claims. This practice contravenes the intent of AR Assist the CJA or claims attorney in a complete investigation of the claim, as directed, using DA Pam Make investigative conclusions and sign DA Form 1668, as appropriate. Forward to CJA or claims attorney for review, signature, and subsequent attachment to SF 1145 (Voucher for Payment Under Federal Tort Claims Act) or file (in cases where denial is recommended). a. Verify claim is processed for payment IAW AR and DA Pam to include obtaining settlement agreements. b. Draft letters of denial or final offer for review and signature by CJA or claims attorney as appropriate. c. Verify that no companion claim exists. If another claim that has not been settled arose from the same incident, consult with CJA or claims attorney prior to further processing of payment. d. Dispatch payment or denial letters IAW AR and DA Pam Ensure all "mirror file" documents are forwarded to USARCS AAO IAW DA Pam on at least a weekly basis. 17. Ensure all actions on claims paid, settled, denied, or otherwise closed are recorded. 18. Enter, or verify the appropriate data entries are posted to the automated claim record and are made accurately on a daily basis. Verify that back-up procedures are used as prompted by the program. 19. Verify tort claim files are maintained and disposed of IAW DA Pam Chapter 4 Claims Page 257

264 20. Ensure monthly reporting procedures are followed IAW AR and DA Pam AR DA Pam References Performance Measures: None. NOTE Please see Appendix D-3 for a copy of all forms mentioned in this section. Chapter 4 Claims Page 258

265 Process and Investigate Affirmative Claims Conditions: You are a Paralegal working at the installation Claims Office and have been tasked to identify, process, and investigate a claim in favor of the U.S. Government. Performance Steps: NOTE - This task contains performance measures that are automated. To maintain integrity of claims program and databases, claims offices may have a single person designated to serve as principal system administrator for automated data entry and generation of automated reports. These databases are in constant change, as is everything in the Army. Check with local SOPs to ensure proper procedures are followed. 1. Identify potential claims in favor of the U.S. by reviewing various source documents shown below; forward any potential claims to the reviewing judge advocate (RJA) for a decision. a. MP Blotter entries and MP Reports. b. Financial Liability Investigations of Property Loss (FLIPL). c. Requests for records or other information which may indicate a claim in favor of the U.S. d. Emergency Room records. e. Patient Admission records. 2. Receive documents reviewed by attorney. Based on the RJA review and decision, note whether the identified affirmative or potential claim has been waived by the RJA. 3. If the RJA determines no claim exists or has been waived, file reviewed or completed documents. 4. If the RJA's decision is to assert the affirmative claim, coordinate or obtain proper category and action codes from RJA for automated database field entries. 5. Determine whether the claim has been transferred from different Army field office or other agency. 6. If the claim is being transferred in, copy the claim record to append the current record. NOTE - Do not attempt to change the claim number from that originally assigned to the transferred claim record. Chapter 4 Claims Page 259

266 7. Enter data to create a new claim record in the database file. NOTE - An automated claim number is generated by the initial data entry. a. Enter "P" for property damage claims. b. Enter "M" for medical care recovery claims. c. Determine and enter the date on which the Government's assertion right terminates (e.g., 3-year Statute of Limitations when based on a tort). d. Complete entries for the "Tortfeasor," "Action Data," and "Insurance Company" data groups as available. e. Complete entries in "Supplemental Medical" and "Supplemental Property" screens as available. 8. Prepare the claim file IAW AR and DA Pam a. On top left of folder, print name of injured party if medical care claim; brief description of property (e.g., "fence" or "street light"), if property damage claim. b. On top right of folder, print claim number as generated by the claims database (e.g., A001 where "99," is fiscal year, "141" is office code and "A001" is next claim sequence number). c. On top center of folder, place the proper ARIMS information. NOTE - A "dummy" folder may be used IAW AR Prepare heading for chronology sheet and include the chronology within the claim file. 10. Record the asserted claim information on a separate claims journal. 11. Annotate the chronology sheet with transferred claim information if applicable. 12. Respond to the RJA request that a form letter be prepared from the available templates in the ACMP. Use the new claim record and program templates to prepare a mail merge letter for the RJA's signature as appropriate. (e.g., If property claim, prepare letter to Tortfeasor making initial demand for payment of damages to U.S. property) 13. Include mail merge letter in the claim file. 14. Forward the claim file to the RJA for investigation. NOTE - Affirmative claims are investigated in the same manner as tort claims. Chapter 4 Claims Page 260

267 15. Determine whether responsibility for the claim should be transferred; coordinate with the RJA for approval. a. If the claim is to be transferred intra-army, enter office code for the appropriate Army field claims office in the automated claim record. b. If the claim is to be transferred to a non-army agency (e.g., Department of the Navy), enter the non-army Agency code in the automated claim record (e.g., "DOJ"; Department of Justice). NOTE - Army Claims Offices are not required to enter Air Force and Navy claims (received and forwarded to those other services) into the claims database. Separate journal entries are made to establish the audit trail of such claims. c. Transfer the open claim by using the Data Transfer Procedures from the Main Menu of ACMP to transfer the claim record data to an exportable diskette, and add the diskette to paper claim file ONLY when transferring the claim to other Army field claims offices. d. Prepare a printout of the automated claim record as displayed on CPU monitor for attachment to claim file. e. Record the claim transfer information in the claims journal. f. Dispatch the claim file to the receiving office or agency. 16. Assist in investigation of claims and management of the affirmative claims program under supervision of RJA, which includes: a. Preparation of attorney correspondence (e.g., Representation, Settlement or Installment Agreements, Releases, etc.). b. Obtaining medical records, police reports, estimates of repair, or other documentation in support of Government's claim. c. Corrective actions regarding deficiencies in processing or investigation. d. Creating, interpreting, and forwarding reports generated by the automated claims program (e.g., Snapshots, SJA Report, etc.). 17. If the RJA has decided to waive or terminate the claim, enter the transaction code "W" as the action code in "Compromised/Waived" data field of automated claim file and update claims journal. 18. Receive check or money order for deposit in the settlement of the full amount asserted or as compromised by the RJA. Chapter 4 Claims Page 261

268 19. Determine whether the deposit is an installment payment. a. Prepare receipt for the installment payment, file the copy of the receipt in the claim file, and forward the original to payee. b. Determine whether the claim file contains an installment agreement or confess judgment note and financial statement from the debtor or settlement agreement and releases as appropriate. 20. Prepare DD Form 1131 (Cash Collection Voucher). a. If the deposit is for medical care recovery, enter the Accounting Classification as "21R3210, Miscellaneous Receipts Account" on the voucher. b. If the deposit is for property damaged or destroyed, enter the Accounting Classification as "21R3019, Recoveries for Government Property Lost or Damaged" on voucher. NOTE - Verify with the RJA/CJA whether the deposit is to be made to the General Treasury (21R3210) or to the maintenance and operations account of the medical treatment facility (MTF), depending on the theory of recovery used in processing the claim and date of treatment. 21. Forward the completed Cash Collection Voucher and any monetary instruments to the RJA for signature or endorsement as appropriate. 22. Ensure all negotiable instruments are secured in a locked container and deposited as soon as possible (within 24 hours, excluding weekends and holidays). 23. Enter deposit information to the claim record in automated database through the "Edit" function of the "Process Claims" submenu. Enter action code "N" for settlements in the full amount asserted and "C" for settlements/payments for compromised assertions. NOTE - Each time a deposit is recorded, the information is stored in both the claim record and a separate record. 24. Annotate the chronology, place a copy of the deposit documentation in the claim file, and post the payment to the claims journal. 25. Use back-up procedures for all transactions and data entered in the automated program as prompted by the system's "Process Claims" submenu after any selection of "Q" for quit. 26. File the claim IAW DA Pam and AR Chapter 4 Claims Page 262

269 27. Prepare an Affirmative Claims Report IAW AR and DA Pam AR DA Pam References Performance Measures: None. Chapter 4 Claims Page 263

270 Process Foreign Claims Conditions: You are a deployed Paralegal. You have been given the task to intake foreign claims from the locals against the U.S. Government. You must review, prepare, and process these claims for approval/disapproval and then for payment. You have access to AR and DA Pam Performance Steps: 1. A Foreign Claim is a claim for payment against the U.S. Government for property loss or damage, personal injury or death, incident to non-combat activities of the U.S. Armed Forces in foreign countries. a. These payments are made to inhabitants of foreign countries. b. These payments will not be made to the following individuals: orders. (1) Soldiers and their family members living overseas pursuant to military (2) Civilian employees of the U.S. Armed Forces or other agencies and their family members. (3) A U.S. domiciliary (someone who lives in the U.S.) in a foreign country as a tourist, visitor, or on a business trip. (4) The enemy. NOTE - It is usually obvious whether the claimant qualifies as an inhabitant. In those uncommon situations in which the claimant is a U.S. citizen or national, you will have to determine if the claimant dwells in and has assumed a definite place in the economic and social life of a foreign country. Establish a set of questions to ask potential claimants. Below is an example from DA Pam Figure Date and place of birth? 2. List all countries of residence other that the United States since birth and include the years of residence. 3. List all years of residence in the United States and reasons for such residences, such as military assignment. 4. List any years or employment in other countries. 5. Name and status of spouse. If deceased, give date of death. 6. List date of marriage to sponsor. 7. If sponsor is deceased, furnish date and place of marriage and occupational status of spouse. Chapter 4 Claims Page 264

271 8. Names of countries in which you maintain citizenship and state basis of citizenship, such as birth, naturalization. 9. What country do you call home? 2. A cognizable claim is one that the FCA (foreign claims act) authorizes compensation for personal injury, death, and for damage to or loss of real and personal property. 3. A payable claim is a claim arising out of non-combat activities is payable. 4. Liability under the FCA may be based on acts or omissions of U.S. Soldiers or civilian employees of a U.S. military department only if they are considered negligent or wrongful. These persons need not be acting within the scope of their employment for their negligent conduct to cause actionable loss, damage or injury. Additionally, there is no bar to claims arising from off-duty or criminal conduct of U.S. Soldiers or civilian employees. NOTE - AR 27 20, Glossary, defines non-combat activities as authorized activities essentially military in nature, having little parallel in civilian pursuits, which historically have been considered as furnishing a proper basis for payment of claims. Examples are practice firing of missiles and weapons, training and field exercises, maneuvers that include the operation of aircraft and vehicles, use and occupancy of real estate, and movement of combat or other vehicles designed especially for military use. Activities excluded arethose incident to combat, whether in time of war or not, and use of military personnel and civilian employees in connection with civil disturbances. 5. A non-payable claim is a claim arising directly or indirectly from combat activities of the U.S. Armed Forces. Whether damages sustained in areas of armed conflict are attributable to combat activities or non-combat activities depends upon the facts of each case. Damages caused by enemy action, or by the U.S. Armed Services resisting or attacking an enemy or preparing for immediate combat with an enemy, are certain to be considered as arising from combat activities. 6. Breach of contract claims are not payable. For example, damages sustained from the act of a U.S. Soldier passing a bad check would not be payable, nor would property damage to a privately owned vehicle loaned to a U.S. Soldier for personal purposes. 7. The Foreign Claims Commission is responsible for investigating and evaluating foreign claims. It is comprised of either one or three officers. 8. FCC Composition - Normally, a member of an FCC will be either a commissioned officer or a claims attorney. At least two members of a three-member FCC must be Judge Advocates or claims attorneys. 9. Payment authority. a. A one-member FCC who is a JA or a claims attorney may consider and pay claims presented, provided a mutually agreed settlement may be reached in an amount up to $15,000, or disapprove any claim presented in an amount not exceeding $15,000. Chapter 4 Claims Page 265

272 b. A one-member FCC comprised by a commissioned officer may consider and pay, in full or in part, claims presented in an amount not exceeding $5,000, but may not disapprove any request. If denial is recommended the claim should be investigated and a report should be forwarded to a three member FCC for determination. c. A three-member FCC, may take the following actions on a claim that is properly before it: (1) Disapprove a claim presented in any amount. After it takes final action and disapproves a claim presented in any amount over $50,000, the FCC will forward to the appointing authority the written notice to the claimant, any response from the claimant, and its notice of final action on the claim. (2) Approve and pay meritorious claims. A claim that the FCC has adjudicated as meritorious, in an amount not exceeding $50,000, may be paid in full or in part. The FCC will forward claims valued in excess of $50,000 or incidents from which multiple claims may arise valued at more than $100,000, to the Commander, USARCS, through the appointing authority, for further action along with a claim memorandum of opinion. 10. Solatia Payments are made in accordance with local custom when a potentially compensable event has occurred. Payments are made to the victim or victim s family and are designed to convey personal feelings of sympathy or condolence. Such payments usually are made immediately and the amount varies. Solatia payments are made using money from the unit s operational and maintenance funds. Check local rules or SOPs regarding Solatia payments. 11. Processing Foreign Claims. The civilian population will submit a claim to your office against the U.S. Government. You will need to investigate the incident in order to come to the conclusion if the incident is payable IAW the FCA. Most often you will be able to look at your units SIGACTS to assist with the investigation of the incident. If the claim is payable IAW with the guidance set forth in the FCA then the claim shall be paid. NOTE - For more detailed information and an example of a Deployment Claims SOP refer to Chapter 9 of the Operational Law Handbook, AR 27-20, or DA Pam AR DA PAM Operational Law Handbook References Performance Measures: None. Chapter 4 Claims Page 266

273 Chapter 5 Administrative Law Table of Contents 1. Process an Informal AR 15-6 Investigation 2. Process a Formal AR 15-6 Investigation 3. Process a Line of Duty Investigation Chapter 5 Administrative Law Page 267

274 Process an Informal AR 15-6 Investigation Conditions: You are a Paralegal working at a Brigade level legal office. The Commander has just told you to prepare an appointment memorandum assigning an officer in your unit to be an AR 15-6 investigating officer for an informal investigation. Although the role of the Paralegal may be limited during the AR 15-6 process it is important to realize you may be approached to explain the procedural aspects of the regulation, preparation of reports and memoranda, and guidance to ensure that all necessary steps in the process have been completed. You have access to AR Performance Steps: 1. Determine if your Commander has the authority to direct an informal investigation be conducted. NOTE - Informal investigation - The investigating officer (IO) may use whatever method it finds most efficient and effective for acquiring information. No respondents can be designated for an informal investigation however the IO may make specific findings and recommendations toward one or more individuals. Furthermore, the information obtained, including findings and recommendations, may be used in any administrative action against an individual, whether or not that individual was designated a respondent, and whether formal or informal procedures were used, subject to the limitations. In determining whether to use informal or formal procedures, the appointing authority should consider these among other factors: a. Purpose of the inquiry. b. Seriousness of the subject matter. c. Complexity of issues involved. d. Need for documentation. e. Desirability of providing a comprehensive hearing for persons whose conduct or performance of duty is being investigated. Regardless of the purpose of the investigation, even if it is to inquire into the conduct or performance of a particular individual, formal procedures are not mandatory unless required by other applicable regulations or directed by higher authority. Unless formal procedures are expressly required, either by the directive authorizing the board or by the memorandum of appointment, all cases will use informal procedures. In determining which procedures to use, the appointing authority should seek the advice of the servicing judge advocate (JA). 2. Obtain the name of the investigating officer or board of officers from the appointing authority. When more than one officer is used it is called a board of officers. NOTE - The following people have the authority to appoint investigating officers IAW AR 15-6: a. Any General Court Martial (GCM) or Special Court Martial (SPCM) Convening Authority, including those who exercise that authority for administrative purposes only. b. Any General Officer. Chapter 5 Administrative Law Page 268

275 c. Any Commander or principal staff officer in the grade of colonel or above at the installation, activity, or unit level. d. Any State Adjutant General. e. A Department of the Army civilian supervisor permanently assigned to a position graded as a General Schedule/General Management, Level 14 (GS/GM 14) or above and who is assigned as the head of an Army agency or activity or as a division or department chief. The following individuals may appoint an informal investigation or board: a. Any officer authorized to appoint a formal board. b. A Commander at any level. c. A principal staff officer or supervisor in the rank of major or above. 3. Ensure the officer meet the following requirements: a. Are best qualified for the duty by reason of their education, training, experience, length of service and temperament. b. Only commissioned officers, warrant officers, or Department of the Army civilian employees permanently assigned to a position graded as a General Schedule, Level 13 (GS 13) or above, will be appointed as investigating officers or voting members of boards. The only exception is when an enlisted member with specific technical knowledge is assigned to the board. 4. Prepare the appointment memorandum IAW AR 15-6 and AR The appointment memorandum will address the purpose, scope, and nature of the findings and recommendations required at outcome. Reporting requirements should be identified. Appointment of an investigating officer or board under informal procedures can also be done orally. 5. Provide the investigating officer/board with a copy of AR 15-6 and DA Form Although a legal advisor is not required for informal investigations, the investigating officer or board may consult with an attorney if requested. Set up consultation with the Staff Judge Advocate s office if necessary. 7. After the IO/board has finished the investigation, review the report of proceedings. The report typically should consist of DA Form 1574 Proceedings by Investigating Officer/Board of Officers, all exhibits, statements, or other documents collected and used during the investigation (ensure all attachments are marked consecutively with Roman numerals). Attach the appointment memorandum, any privacy act statements, and a written explanation of any delays, irregularities, or other problems encountered to the report. 8. Ensure the findings and recommendations on the report are clear and concise. Chapter 5 Administrative Law Page 269

276 NOTE - A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record. It is directly established by evidence in the record or is a conclusion of fact by the investigating officer or board. Negative findings (e.g., that the evidence does not establish a fact) are often appropriate. The nature and extent of recommendations required also depend on the purpose of the investigation or board and on the instructions of the appointing authority. Each recommendation, even a negative one (e.g., that no further action be taken) must be consistent with the findings. Avoid having the IO analyze elements of an offense under the UCMJ unless he is qualified. It is better for an IO to state that UCMJ action would be appropriate in this case based on the underlying conduct. 9. Ensure the report is signed by the investigating officer or by all members of the board. 10. Two complete copies of the completed report should be delivered to the appointing authority per AR The appointing authority will seek a legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action, or will be relied upon in actions by higher headquarters. The JA s review will determine: a. Whether the proceedings comply with legal requirements. b. What effects any errors would have. c. Whether sufficient evidence supports the findings of the investigation or board or those substituted or added by the appointing authority. d. Whether recommendations are consistent with the findings. AR 15-6 AR References Chapter 5 Administrative Law Page 270

277 Performance Measures: 1. The Brigade Commander is COL Frank R. Myers, AR, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana COL Myers has directed you to prepare an appointment memorandum assigning MAJ Peter J. Almos, Headquarters and Headquarters Company, 354 th Brigade Support Battalion, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana , as an investigating officer. 3. MAJ Almos will use informal procedures to investigate the circumstances surrounding an allegation that senior noncommissioned officers in Company A, 354 th Brigade Support Battalion, 3 rd Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana , have been pressuring junior Soldiers to purchase prepaid legal services. 4. There is a letter signed by SPC Joseph B. Barnhart, detailing an encounter he had with a senior noncommissioned officer in the Company. 5. The Brigade office symbol is AJJ-BC. 6. Today s date is 5 January MAJ Almos should provide two copies of DA Form 1574, including all statements or other written matters NLT seven working days from today. 8. MAJ Almos should also prepare precise findings concerning any individuals involved and make recommendations on potential courses of action as to what type of punishment if any that may be appropriate. Also identify any need for training on Relationships between Soldiers of different ranks, among various members or groups of the Company. If the allegations prove to be true, the conduct of the senior noncommissioned officers is a violation of AR , Paragraph 4-14, Army Command Policy. 9. COL Myers will sign the memorandum today. Requirement Prepare an appointment memorandum for MAJ Almos IAW AR See Appendix E-1 for the answer to this exercise. Chapter 5 Administrative Law Page 271

278 Process a Formal AR 15-6 Investigation Conditions: You are a Paralegal working at a Brigade level legal office. The Commander has just told you to prepare an appointment memorandum assigning a board of officers in your unit to an AR 15-6 formal investigation. Although the role of the Paralegal may be limited during the AR 15-6 process it is important to realize you may be approached to explain the procedural aspects of the regulation, preparation of reports and memoranda, and guidance to ensure that all necessary steps in the process have been completed. Performance Steps: 1. Determine if your Commander has the authority to direct a formal investigation. NOTE - In a formal investigation, regardless if there is one or more officers appointed to the investigation it is referred to as a Board of Officers. Formal investigation - Normally involves due process, hearings, a legal advisor, and a designated respondent. Contain many of the same provisions as the informal investigation. In determining whether to use informal or formal procedures, the appointing authority should consider these among other factors: 1. Purpose of the inquiry. 2. Seriousness of the subject matter. 3. Complexity of issues involved. 4. Need for documentation. 5. Desirability of providing a comprehensive hearing for persons whose conduct or performance of duty is being investigated. In determining which procedures to use, the appointing authority should seek the advice of the servicing judge advocate (JA). 2. Obtain the name(s) of the board of officers from the appointing authority. NOTE - The following people have the authority to appoint: a. Any General Court Martial (GCM) or Special Court Martial (SPCM) Convening Authority, including those who exercise that authority for administrative purposes only. b. Any General Officer. c. Any Commander or principal staff officer in the grade of colonel or above at the installation, activity, or unit level. d. Any State Adjutant General. Chapter 5 Administrative Law Page 272

279 e. A Department of the Army civilian supervisor permanently assigned to a position graded as a General Schedule/General Management, Level 14 (GS/GM 14) or above and who is assigned as the head of an Army agency or activity or as a division or department chief. Only a general court martial convening authority may appoint a formal investigation or board (chap 5) or an informal investigation or board (chap 4) for incidents resulting in property damage of $1,000,000 or more, the loss or destruction of an Army aircraft or missile, an injury and/or illness resulting in, or likely to result in, permanent total disability, the death of one or more persons or the death of one or more persons by fratricide/friendly fire. A copy of any investigation involving a fratricide/friendly fire incident (see AR ) will be forwarded, after action by the appointing authority, to the next higher Army headquarters for review. 3. Obtain the name(s) of the IO or board of officers from the appointing authority and prepare the appointment memorandum IAW AR 15-6 pages For formal investigations the appointment must be in writing. 4. Ensure the officer(s) meet the following requirements: a. Are best qualified for the duty by reason of their education, training, experience, length of service and temperament. b. Only commissioned officers, warrant officers, or Department of the Army civilian employees permanently assigned to a position graded as a General Schedule, Level 13 (GS 13) or above, will be appointed as investigating officers or voting members of boards. The only exception is when an enlisted member with specific technical knowledge is assigned to the board. 5. Coordinate a meeting between the IO or board of officers and the legal advisor, (the administrative law office usually assigns a legal advisor), coordinate as necessary. 6. If there is a respondent (person or persons being investigated) notify them at least five working days prior to the day of the inquiry in writing. There is an example of this notification in AR The respondent should also be provided a copy of the case file and is authorized counsel. Assist the respondent with contacting an attorney if necessary. 7. Ensure the IO or board of officers is provided a copy of AR Ensure the report is completed in the following manner: a. The report will consist of DA Form 1574 (Proceedings by Investigating Officer/Board of Officers) and statements and exhibits collected during the course of the investigation marked consecutively with Roman numerals. The GCMCA may authorize a verbatim transcript be prepared, consult AR 15-6 for guidance. Attach the appointment memorandum, any privacy act statements, and a written explanation of any delays, irregularities, or other problems encountered. b. All reports will include clear and concise findings and recommendations. Chapter 5 Administrative Law Page 273

280 NOTE - A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record. It is directly established by evidence in the record or is a conclusion of fact by the investigating officer or board. Negative findings (e.g., that the evidence does not establish a fact) are often appropriate. The nature and extent of recommendations required also depend on the purpose of the investigation or board and on the instructions of the appointing authority. Each recommendation, even a negative one (e.g., that no further action be taken) must be consistent with the findings. 9. Ensure the report is signed by the IO or board of officers. 10. Ensure two copies of the report are provided to the appointing authority and if there is a respondent(s) a copy of the report to them. 11. The appointing authority will seek a legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action, or will be relied upon in actions by higher headquarters. The JA s review will determine: a. Whether the proceedings comply with legal requirements. b. What effects any errors would have. c. Whether sufficient evidence supports the findings of the investigation or board or those substituted or added by the appointing authority. d. Whether recommendations are consistent with the findings. AR 15-6 AR References Chapter 5 Administrative Law Page 274

281 Performance Measures: 1. On 10 January 2011, the Commander, 54 th Infantry Division (Mechanized), Fort Atterbury, IN , Major General James R. Franklin, appointed MAJ Mason H. Jersey. 2. Additionally the following personnel will have these assigned roles: CPT Sergei I. Johansen (Legal Advisor) 1LT Melissa M. Carlson (Recorder) SGT Jimmy J. Thompson (Reporter) SFC Marcus L. Teddy (Respondent) CPT Carl H. Simpson (Counsel for Respondent, CPT Simpson is a USATDS attorney, his address is Trial Defense Service, Building 6287, Fort Atterbury, Indiana ) 3. SFC Teddy was notified on 10 January 2011 that the investigation would take place on 14 January 2011, in Building 5217, Room 8, Fort Atterbury, Indiana , at The IO and all parties were present for the entire proceeding. The IO finished gathering evidence at 1615 on 14 January 2011 and completed the findings and recommendations at 1640 on 15 January The IO is investigating a sexual harassment claim. During the findings portion of the investigation the IO found: That SFC Marcus L. Teddy sexually harassed PV1 Mindy Jettison on 16 and 17 December 2011, by telling her that if she had sex with him, he would see that she was promoted ahead of her peers. 6. Additionally, The IO recommends that charges be brought up against SFC Teddy and that he be removed immediately from any and all supervisory positions. 7. The IO signed the report. The appointing authority approved the findings and recommendations on 19 January Fill out the DA Form 1574 as you see fit. Take note of question 11(a), for which information has been provided. Requirement Fill out DA Form 1574 from the information provided above. See Appendix E-2 for the answer to this exercise. Chapter 5 Administrative Law Page 275

282 Process a Line of Duty Investigation Conditions: You are a Paralegal working at a Brigade level legal office. The Brigade S1 has requested the Brigade Paralegal NCOIC to establish a system for processing line of duty investigations. The NCOIC has tasked you to establish a systematic approach for ensuring that line of duty investigations are completed accurately and IAW with AR (Line of Duty Policy, Procedures, and Investigations). Performance Steps: The Army s Line of Duty system starts from the premise that every Soldier who incurs an injury or disease while conducting him or herself properly as a member of the Army is entitled to certain benefits. These benefits include pay and allowances, accrual of service and leave, and, in some cases, disability retirement. The Army uses the Line of Duty system to determine who is eligible to receive these benefits. Before looking at a Soldier s eligibility for benefits, however, we first need to know when a line of duty determination is required. Basically, the rule is this; a line of duty determination is necessary whenever a Soldier incurs an injury or disease, which incapacitates the Soldier from the performance of duty. 1. Determine if your Commander has the authority to appoint either a formal or informal line of duty investigation. NOTE - Special Court-Martial Convening Authorities (SPCMCA) normally appoint both informal and formal line of duty investigations. See AR , Chapter Determine if the appointing authority has the ability to approve the findings of a line of duty investigation. NOTE - SPCMCAs have the authority to approve informal investigations; GCMCAs have the authority to approve formal investigations. 3. Determine the requirement for conducting a line of duty investigation. NOTE - Line of duty investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death of a Soldier, and, if so, to what degree. The line of duty determination is presumed to be "LD YES" without an investigation when: a. In the case of disease (see AR for exceptions). b. In the case of injuries clearly incurred as a result of enemy action or attack by terrorists. c. In the case of death due to natural causes or while a passenger in a common commercial carrier or military aircraft. d. In all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance (for example, superficial lacerations or abrasions or mild heat injuries), an LD investigation must be conducted. Chapter 5 Administrative Law Page 276

283 Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. 4. If an investigation is required, determine if it should be formal or informal. NOTE - A Commander has three courses of action depending upon the Soldier s status and the circumstances surrounding the injury, disease or death. In certain cases, a determination of LD is made without an investigation. For example, most diseases are presumed to be in the line of duty. There is a presumption of LD if a Soldier dies in combat, as a result of terrorist attacks, due to natural causes or while a passenger in a common carrier or military aircraft. An informal line of duty investigation is conducted when no willful negligence or misconduct is suspected. The final determination of an informal LD investigation can result in a determination of "in LD" only, except in specially noted exceptions. One would probably result, for example, when a Soldier is injured in a car accident. A formal LD investigation is required if the injury, disease, or death occurred under unusual or doubtful circumstances; or if the person affected by the investigation (to include next of kin) requests one; or the complexity of the case warrants one; or for any other circumstance outlined below: a. Injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence. b. Injury or death involving the abuse of alcohol or other drugs. c. Self-inflicted injuries or possible suicide. d. Injury of death incurred while AWOL. Army. e. Injury or death that occurs while an individual was en route to final acceptance in the f. Death of a USAR or ARNG Soldier while participating in authorized training or duty. duty. g. Injury or death of a USAR or ARNG Soldier while traveling to or from authorized training or h. When a USAR or ARNG Soldier serving on an AD tour of 30 days or less is disabled due to disease. drugs. i. In connection with an appeal of an unfavorable determination of abuse of alcohol or other j. When requested or directed for other cases. Chapter 5 Administrative Law Page 277

284 Processing Informal Investigations Step 1 (AR ,Table 3-1) Person: Military treatment facility (MTF) Commander (Commander having physical or administrative responsibility for MTF in which the individual is treated or pronounced dead) Action: Complete five copies of section 1, DA Form Send the original and three copies to the Soldier s unit Commander and one copy to the supporting MILPO. When USAR and ARNG personnel are injured during authorized training and are treated by a civilian doctor, the doctor and the unit Commander should complete DA Form When the incident occurs while the Soldier is away from his unit (that is, on leave, in transit, AWOL, and so forth), complete section 1, DA Form 2173 and send to the nearest Army unit that has an appointing authority (State MILPO for ARNG) in the area of the MTF. However, when the incident occurs during a period when the Soldier and his or her unit are training or on another exercise away from the parent installation, complete section 1, DA Form 2173 and send to the parent installation casualty area Commander (CAC) (State MILPO for ARNG). The MTF Commander will provide supporting documentation requested by the parent installation, MILPO, or responsible unit Commander. The MTF will send the original and four copies to the State MILPO for the Soldier s unit if the Soldier is not Federalized and/or attending an Active Army Service School. (See note 2.) Completion time: Five calendar days after incident or initial treatment (see note 1). Step 2 Person: Individual s unit Commander Action: Request DA Form 2173 from MTF, if not previously received. Completion time: No later than 10 days after incident (see note 1). Step 3 Person: Individual s unit Commander Action: Complete section 2, DA Form 2173; attach support documents; and send original and two copies to the appointing authority for units in the area in which the incident occurred. U.S. Army Reserve units conducting line of duty investigations will submit the line of duty investigation to the CAC having jurisdiction over the area where the injury occurred for final processing. Chapter 5 Administrative Law Page 278

285 Completion time: 30 calendar days after incident (see note 1). Step 4 Person: Appointing Authority Action: Review the line of duty investigation for completeness and required documents. a. If approved, annotate forms as follows (preceded by official designation of headquarters and date, and followed by signature and signature block): (1) For disease, injury, or death (when appointing authority is the approving authority) "Reviewed for completeness. In line of duty, followed by command line of "BY AUTHORITY OF THE SECRETARY OF THE ARMY." Retain one copy, send original to official military personnel file (OMPF). Send one copy each to the Soldier s unit Commander and the final approving authority. (See notes 2 and 3.) (2) For disease, injury, or death (when appointing authority is not the approving authority), "Reviewed for completeness, In line of duty," followed by appropriate command line. Send original and two copies to the final approving authority. b. If disapproved, direct a formal line of duty investigation. Completion time: 35 calendar days after incident (see note 1). Step 5 Person: Final Approving Authority Action: Review the line of duty investigation for completeness and required documents. a. If approved, annotate as outlined under appointing authority. (1) For disease or injury Retain one copy, send original to OMPF, and one copy to the Soldier s unit Commander. An approved copy of line of duty investigation should be returned to the initiating MTF on all injuries on ARNG and USAR Soldiers on AD for 30 days or less, or initial active duty training (IADT), when they are patients. For the ARNG, the final approving authority will retain the original (NGB or State AG). The State AG will indicate final action on all copies retained and forward copies to the U.S. Property and Fiscal Officer (USPFO) of the State, the unit Commander for filing in the Soldier s military personnel records jacket (MPRJ), and the Soldier in accordance with Paragraph (See notes 2 & 3.) (2) For deaths retain one copy and send original and one copy through casualty reporting channels to HQDA (AHRC PED S). Chapter 5 Administrative Law Page 279

286 b. If disapproved, return to the appointing authority and direct a formal line of duty investigation. Completion time: 40 Calendar days after incident (see note 1). Notes: 1. If investigation extends beyond time limits, see AR , Paragraph An extra copy of DA Form 2173 will be prepared for ARNG personnel attending service school under the jurisdiction of the Army or on ADT under the Reserve Enlistment Program of 1963 (REP 63). This copy will be filed in the individual s field MPRJ, which is returned to the State AG at the end of service school or ADT. 3. Accomplish notification actions required by AR , Paragraph Step 1 (AR , Table 3-2) Processing Formal Investigations Person: MTF Commander (Commander having physical or administrative responsibility for the MTF in which Soldier is treated or pronounced dead). Action: Complete five copies of section 1, DA Form Send the original and three copies to the Soldier s unit Commander and one copy to the supporting MILPO. An extra copy of DA Form 2173 will be prepared for ARNG personnel attending Service school under the jurisdiction of the Army or on ADT under the Reserve Enlistment Program of 1963 (REP 63). This copy will be filed in the Soldier s local file, which is returned to the State AG at the end of service school or ADT. For USAR and ARNG personnel who are injured during IDT and are treated by a civilian doctor, the doctor and the unit Commander should complete DA Form When the incident occurs while the Soldier is away from his unit (that is, on leave, in transit, AWOL, and so forth), complete section 1, DA Form 2173, and send to the nearest Army unit with an appointing authority (State MILPO for ARNG) in the area of the MTF. However, when the incident occurs during a period when the Soldier and his unit are training or on another exercise away from the parent installation, complete section I, DA Form 2173, and send to the parent installation CAC (State MILPO for ARNG). The MTF Commander will provide the supporting documentation requested by the parent installation, MILPO, or responsible unit Commander. The MTF will send the original and four copies to the State MILPO for the Soldier s unit if the Soldier is not Federalized and/or attending an Active Army Service School. Completion time: Five calendar days after incident or initial treatment (see note 1). Chapter 5 Administrative Law Page 280

287 Step 2 Person: Individual s unit Commander. Action: Request DA Form 2173 from MTF if not previously received. Completion time: No later than 10 days after incident (see note 1). Step 3 Person: Individual s unit Commander. Action: Complete section 2, DA Form 2173; attach supporting documents; and send original and three copies to the line of duty appointing authority. Completion time: 30 calendar days after incident (see note 1). Step 4 Person: Appointing Authority Action: Appoint a disinterested officer in writing to conduct the investigation. (When a formal line of duty investigation is to be conducted, an IO must be appointed in writing. The IO may be a commissioned officer or warrant officer). The IO will be senior in grade to the Soldier being investigated. The same officer should be appointed to investigate all injuries or deaths that occurred as a result of a single incident. Officers who can offer evidence in the case and Soldier s unit Commander will not be appointed as the investigating officer. (The investigating officer may also be appointed to investigate a claim or possible future claim in accordance with AR if a separate claim s investigation is required. The line of duty investigation will be in lieu of the investigation by a claims officer required by AR if the injury or death of the person whose line of duty status is being investigated is the only basis for claim against the Government of other party or agency.) Completion time: 35 calendar days after incident (see note 1). Step 5 Person: Investigating Officer Action: Conduct a formal line of duty investigation as outlined in AR , make a report on DD Form 261, and send original and three copies to the appointing authority. Completion time: 50 calendar days after incident (see note 1). Chapter 5 Administrative Law Page 281

288 Step 6 Person: Appointing Authority Action: Review the investigation and complete the block titled "Action by the Appointing Authority" on DD Form 261. Retain one copy of the report and send the original and two copies to the final approving authority (or reviewing authority for ARNG). When the Soldier is in the ARNG on duty under 32 USC 503, 504, or 505, the appointing authority will send the original and two copies of the report of investigation to the State MILPO from which the individual was ordered to duty. The State AG is the reviewing authority. USAR units conducting line of duty investigations will submit the line of duty investigation to the CAC having jurisdiction over the area where the injury occurred for final processing. (See note 2.) Completion time: 70 calendar days after incident (see note 1). Legal Review The appointing authority will refer the report of investigation to the servicing JA for legal review and opinion. The ARNG will refer ARNG reports of investigation to a JA or licensed attorney (non-ja) Soldier of the ARNG, designated by the State AG. The legal opinion rendered will be attached to the investigation. The JA s review will: a. Determine whether legal requirements are in compliance. b. Ascertain if any error exists and if so, whether such error has a material or adverse effect on any individual s rights. c. Determine whether the investigation is supported by substantial evidence or lack of evidence. d. Examine the investigation to see if potential claims may be involved. This is of special concern where medical care has been furnished and the Government may be entitled to recover third party medical claims. Completion time: 65 calendar days after incident (see note 1). Step 7 Person: Reviewing Authority (ARNG only) Action: Review the investigation, complete the block titled "Action by the Reviewing Authority" (see notes 2 & 3) on DD Form 261, and send the original and two copies to final approving authority. Completion time: 70 calendar days after incident (see note 1). Chapter 5 Administrative Law Page 282

289 Step 8 Person: Final Approving Authority Action: a. Review the line of duty investigation and enter the official designation of the headquarters, the date, approval or disapproval of the determination (see below), signature, and signature block. (See note 3.) For disease, injury, or death, use one of the following: (1) If approved, BY AUTHORITY OF THE SECRETARY OF THE ARMY; (2) If disapproved, substitute the following: Reasons for disapproval are: (give reasons) BY AUTHORITY OF THE SECRETARY OF THE ARMY b. Distribute as follows: (1) Death retain one copy and send the original and one copy to HQDA (AHRC PED S). (See note 4.) (2) Disease or injury retain one copy and send original to the custodian of the Soldier s OMPF. (See note 4.) c. Criminal Investigation Division reports and classified material will not be included in the copy sent to the Soldier. d. If determination is "not in line of duty," final approving authority must also take appeal action in AR , Paragraph e. A copy of a line of duty investigation should be returned to the initiating MTF on all injuries concerning USAR and ARNG Soldiers on AD for 30 days or less, or IADT, when they are patients. f. The CNGB will retain the original. The CNGB will return one copy to the State AG. The State AG will annotate all copies to show final action taken by the CNGB and distribute one copy to each of the following: (1) CNGB for file. (2) State USPFO. (3) Unit Commander for file in the Soldier s MPRJ. (4) The Soldier in accordance with Paragraph Chapter 5 Administrative Law Page 283

290 Completion time: 75 calendar days after incident (see note 1). Notes: 1. If investigation extends beyond time limits, see AR , Paragraph The appointing, reviewing, and final approving authorities may change a previous determination. When a determination is changed, the reasons for that change will be shown on the back of DD Form 261, if there is not enough room on the front. 3. Except for ARNG cases, enter "SAME AS FINAL APPROVING AUTHORITY" in the block title, "Action by Reviewing Authority." 4. Accomplish notification actions required by AR , Paragraph AR AR 15-6 References Performance Measures: SPC Jason J. Woodworth, , Company A, 1 st Battalion, 12 th Infantry, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana , contracted the Ebola virus while on leave in a foreign country. COL Oscar B. Johnson, IN, Commander, 1 st Brigade, 54 th Infantry Division (Mechanized), office symbol AJJ-BA, has appointed CW4 Herbert R. Winslow, Headquarters and Headquarters Company, 1 st Brigade, 54 th Infantry Division (Mechanized), Fort Atterbury, Indiana , to investigate using formal procedures. COL Johnson has directed you to prepare the written appointment memorandum for his signature today (18 January 2011). Requirement Prepare an appointment memorandum. See Appendix E-3 for the answer to this exercise. Chapter 5 Administrative Law Page 284

291 Chapter 6 Operational Law Table of Contents 1. Preparing for a Deployment and Deployment Operations 2. Comply with the Law of War 3. Apply Standing Rules of Engagement (SROE) Principles Chapter 6 Operational Law Page 285

292 Preparing for Deployment and Deployment Operations Conditions: You are a Paralegal NCO in charge of Brigade Operational Law Team (BOLT). One of your many responsibilities is to make sure that the Soldiers assigned to your section are prepared for deployment, whether it is a real world deployment or a training exercise. In both cases, Soldiers will be removed from their day-to-day working and living environments and will have to succeed in the deployed theater of operations. Performance Steps: 1. Maintain an updated leader s book. NOTE: Leader s books commonly contain but are not limited to the following information: a. Personal information about your Soldiers, such as rank, name, SSN, DOB, DOR, BASD, PEBD, emergency POC, local address, HOR, spouse s name, children s names, parent s names and contact information, education level, personal goals, hobbies, and interests. b. Professional information such as APFT information, weapons qualification status, CTT testing, military driver s license, promotion information, record of counseling, copies of awards, promotion and assignment orders, previous duty stations, military schools and courses taken, functional areas of the MOS worked in, secondary MOS information, professional goals, family support plan if needed. It is also important to keep track of core MOS areas such as Claims, Legal Assistance, Military Justice, that the Soldier is trained in and those areas that need training. One of the most important facts often overlooked is the need for your Soldiers to have a security clearance. Getting a clearance is a time-consuming process and the earlier you start the process the better. Often times Soldiers are not allowed access to tactical operations centers without a clearance. This will undoubtedly hinder your mission once deployed. Confirm/coordinate with your unit S2 or G2. 2. Soldiers prepare for deployment by ensuring that individual readiness is accomplished prior to deploying. Listed below are common things to take into consideration: a. Finances - Ensure your Soldiers have coordinated paying bills while deployed. This can be accomplished by allotments, direct draft from a checking account, or having a trusted family member or friend to be responsible for paying the bill while the Soldier is deployed. b. POV storage Ensure your Soldiers have properly stored their POV. The unit usually controls this process but often Soldiers leave their POV with a friend or family member. This is a choice the Soldier can freely make however it is not uncommon for this situation to cause the Soldier unwanted problems while deployed. The best bet is to advise the Soldier on a course of action and point out pros and cons. c. Family Keep family members informed about the location of ACS, AER, the rear detachment command group, and FRG meetings. Make sure FRG phone rosters are available and that the family members have enough information available to take care of any need while the Soldier is deployed. Chapter 6 Operational Law Page 286

293 d. Wills and power of attorneys If your Soldier needs a will or POA make sure it is taken care of well in advance of the deployment. Just prior to deploying, your 27D Soldier will probably be busy preparing them for other Soldiers. 3. Provide your Soldiers training on common Soldier tasks. a. Soldiers will receive training on common tasks, such as NBC operations, weapons qualification, first aid, tactical vehicle operation and licensing, and radio operation training. Depending on the particular deployment, Soldiers may also receive training on convoy operations, reaction to ambushes, call for/adjust for fire, mine awareness, and other basic Soldier skills. b. The unit also provides Soldiers with an individual packing list. The Paralegal NCOIC should review the unit packing list and ensure that it is detailed and complete for the conduct of legal operations. This list should be completed and distributed as soon as possible to assist with the acquisition of needed items and the proper packing of those items. Conduct a pre-combat check on the packing list. 4. Paralegals should be prepared to perform or assist on a wide variety of legal missions in the deployed environment. This fact emphasizes the need for a well-rounded training program before leaving for a deployment. Listed below are of a few of the areas your Soldiers should be versed in: a. Financial Liability Investigation of Property Loss b. Line of Duty Investigations. c. AR 15-6 Investigations. d. Claims (foreign especially). e. Military Justice Article 15, courts-martial, letters of reprimand, etc. f. Legal Assistance various Service Members Civil Relief Act issues, POAs, Wills. g. ROE & LOW. h. Detention Operations. i. FBCB2, CPOF, MCS, and other battlefield computer systems. 5. Prior to deployment, the legal section must also devise a plan to track, store, and file legal actions. Such a system is imperative to maintain accountability of legal actions when deployed. Chapter 6 Operational Law Page 287

294 6. All legal personnel should receive a briefing on the operations order that will guide their mission. They should also receive a briefing on the country and region that they are about to deploy to. 7. Paralegals will assume duties in the Tactical Operations Center (TOC) and therefore must become familiar with staff planning and the military decision-making process. Paralegals also must be trained on basic operational and international law issues, such as legal issues on the Rules of Engagement, Geneva Convention provisions on the treatment of detainees, and rules regarding targeting and collateral damage. An excellent resource for international and operational law issues is the Operational Law Handbook, published annually by The Judge Advocate General s Legal Center & School and available for download on JAGCNet. 8. The NCOIC must ensure that training includes combat lifesaving skills, map reading, land navigation, convoy operations, Single Channel Ground and Air Radio System (SINCGARS) communication, weapon s proficiency, and driving and performing preventive maintenance on assigned vehicles. 9. Gather necessary supplies, equipment, and regulations to complete the mission. Suggestions on what to bring are listed below: a. Legal teams have discovered that an all-in-one printer/copier/scanner is extremely durable and provides the essential capabilities of copying and scanning. b. All legal teams should deploy with at least one notary seal. c. The Electronic Judge Advocate War-Fighting System (e-jaws) CD/DVD is a resource digital library, which contains publications, field manuals, regulations, pamphlets, and electronic forms. d. The Deployed Judge Advocate Resource Library CD, available from the Center for Law and Military Operations, contains numerous source documents, information papers, training materials, legal annex examples, etc. to assist legal teams in preparing to deploy and conduct research while deployed. e. Plan for instances where electronic equipment, such as computers, printers, and scanners, may not be available for use during deployments, in particular early in the deployment when access to electricity and the internet may not be possible. Develop a battle box containing hardcopies of reference materials. At a minimum, these materials should include the Manual for Courts-Martial, commonly used regulations and handbooks, in particular the latest Operational Law Handbook, and blank forms, such as General and Special Power of Attorney forms, Article 15 forms, Sworn Statement forms, and Rights Waiver forms. Ideally, if the SJA Office is replacing another, the counterpart is a great resource on what to bring and what they can provide before they leave. Chapter 6 Operational Law Page 288

295 10. Train on convoy operations. a. The convoy Commander is responsible for all convoy preparations. The convoy Commander determines timeline based on METT-TC: 1. Evaluate the Mission. 2. Evaluate potential Enemy threat. 3. Analyze Terrain and weather. 4. Identify personnel and Troops available. 5. Identify available Time for planning and execution. 6. Evaluate Civilian impacts to the operation. b. The convoy is normally protected by gun trucks, which provide the convoy with much needed firepower to deter and/or destroy an enemy threat. Many times the enemy will choose not to attack a well-armed convoy. Judge Advocates and Paralegals, therefore, must be trained on crew-served weapons to travel in a deployed environment. c. Rehearsals are conducted so that convoy personnel know what is expected of everyone and who does what. Strip maps are prepared of the intended route and map reconnaissance is conducted so that everyone is familiar with the area of operation. Aid and liter teams are designated in case of casualties. Call signs and frequencies for medical evacuations (MEDEVACs) and close air support are confirmed. Security forces are identified for protection of the convoy. d. While traveling in convoys to conduct legal operations, Judge Advocates and Paralegals must also know how to react to an ambush. The part of the convoy that is in the kill zone and receiving fire must exit the kill zone as quickly as possible. If unable to exit the kill zone, personnel will dismount, take cover, and return fire on enemy positions. Normally, the security force will take action to neutralize the ambush while the convoy escapes from the kill zone. Reaction forces should be called in as soon as the ambush attack is launched. In an ambush situation, immediate and aggressive leadership are essential to limit casualties and damage to vehicles, and cargo. 11. Train as part of the staff of the unit you deploy with. There will be many opportunities for the legal section to take part in preparatory training exercises. Ensure that the legal section is included and takes an active role. 12. The Tactical Operations Center (TOC): Chapter 6 Operational Law Page 289

296 a. The Paralegal NCOIC must also prepare other Paralegals who are deploying to conduct operational law missions and assist Judge Advocates in manning the TOC. To enter the TOC personnel, usually need a security clearance. Ensure your Soldiers have the necessary clearance prior to deploying. Coordinate with your S2 or G2. b. The TOC is a command post manned with general and special staff, both officers and enlisted Soldiers, who are concerned with the current tactical operations and the tactical support of those operations. c. The Tactical Operations Center: OSJA Functions. One of the Judge Advocate s duties in the TOC is to provide international and operational law advice on the law of armed conflict, including the Hague and Geneva Conventions and customary international law. International law issues normally arise in decisions on lawful targets and the rules of engagement, treatment of enemy prisoners of war and civilian detainees, issues regarding displaced persons, use of landmines, and so on. The Paralegal charged with assisting the Judge Advocate in manning the TOC must be trained to recognize international law issues in order to alert the Judge Advocate. d. To perform duties in the TOC, the Paralegal also must understand the Battlefield Operating Systems (BOS). The BOS are the physical means (Soldiers, organizations, and equipment) used to accomplish the mission. The BOS consist of intelligence, maneuver, fire support, air defense, mobility, counter-mobility, survivability, and command and control (C2). (1) Intelligence the intelligence system plans, directs, collects, processes, produces and disseminates intelligence on the threat and environment. (2) Maneuver maneuver systems move to gain positions of advantage against enemy forces. Infantry, armor, cavalry and aviation forces are organized, trained, and equipped primarily for maneuver (3) Fire Support the fire support system consists of fires that directly support land, amphibious, and special operation forces in engaging enemy forces and facilities in pursuit of tactical and operational objectives. (4) Air Defense the air defense system protects the force from air and missile attack and aerial surveillance. (5) Mobility operations that preserve the friendly forces freedom of maneuver. Mobility missions include breaching obstacles, increasing battlefield circulation, improving or building roads, providing bridge and raft support, and identifying routes around contaminated areas. (6) Counter-Mobility operations that deny mobility to enemy forces. Counter-Mobility missions include obstacle building and smoke generation. Chapter 6 Operational Law Page 290

297 (7) Survivability operations that protect friendly forces from the effects of enemy weapons systems. 13. The Center for Law and Military Operations (CLAMO) is the Judge Advocate General s Corps central repository for all after-action materials pertaining to legal support to operations, both foreign and domestic. CLAMO maintains a website at which contains after action reports (AARs). These AARs should be reviewed by Paralegal NCOICs prior to their deployments for lessons learned and other information that will assist them in preparing their own pre-deployment program. CLAMO has also published several lessons learned handbooks that should also be consulted for pre-deployment information. FM FM FM FM 3-0 FM OPLAW Handbook References Performance Measures: None. Chapter 6 Operational Law Page 291

298 Comply with the Law of War Conditions: You are a Paralegal working in a Brigade Operational Law Team. You must be able to identify, understand and comply with the Law of War, to include prohibitions on targets and weapons; humane treatment of prisoners of war, wounded and sick, and civilians; rights and obligations of prisoners of war; and responsibility to disobey criminal orders. You have access to provisions of Customary Law of War, Geneva and Hague Conventions, the Operational Law Handbook and FM Performance Steps: 1. Origins of the Law of War. a. Customary Law of War As a result of centuries of warfare, unwritten laws and rules developed governing the conduct of war. These unwritten laws are known as the customary law of war. The customary law of war is firmly based on the lessons of history, which have shown that the purpose and result of these rules is to allow the military to accomplish its mission without causing unnecessary suffering and destruction. The intent of these rules is to limit the suffering or destruction to military targets and to provide humane treatment for all persons who are taken out of the fight. They are not meant to, nor do they in practice, interfere with the accomplishment of legitimate military missions. It has been clearly recognized that any Commander can accomplish the assigned mission without violating the law of war. These rules have become binding customs and formal laws of war for virtually every nation, including the United States. b. Geneva & Hague Conventions In the last one hundred years, nations have also adopted specific rules concerning the treatment of all persons who fall into the hands of a military force. The United States was a leader in adopting for its military forces rules which recognized that enemies are human beings, that unnecessary destruction or suffering must not occur, and that captured persons are entitled to certain fundamental human rights regardless of their prior conduct or beliefs. The Hague Conventions of 1907 and the Geneva Conventions of 1949 represent the major efforts by the countries of the world to reduce to written form certain basic concepts of the law of war. These conventions do not replace the customary, or unwritten, law of war, but merely reinforce and supplement that body of law. The United States is a party to the Hague and the Geneva Conventions. The United States, including its Army Soldiers, have solemnly pledged to observe all the provisions of these treaties. 2. A Soldier s Responsibilities toward the Law of War. a. The 10 Soldier s Rules (1) Soldiers fight only enemy combatants (2) Soldiers do not harm enemies who surrender. They disarm them and turn them over to their superior. Chapter 6 Operational Law Page 292

299 (3) Soldiers do not kill or torture enemy prisoners of war (EPW). (4) Soldiers collect and care for the wounded, whether friend or foe. (5) Soldiers do not attack medical personnel, facilities, or equipment. (6) Soldiers destroy no more than the mission requires. (7) Soldiers treat civilians humanely. (8) Soldiers do not steal. Soldiers respect private property and possessions. (9) Soldiers should do their best to prevent violations of the Law of War. (10) Soldiers report all violations of the Law of War to their superior. b. The Hague and the Geneva Conventions and the customary law of war require that American Soldiers: (1) Not inflict unnecessary destruction or suffering in accomplishing the military mission. (2) Treat prisoners of war, other captured and detained personnel, and civilians humanely. (3) Receive humane treatment if captured or detained by the enemy. c. All Soldiers must know about the Hague and Geneva Conventions and customary laws and understand how they work. U.S. Army Soldiers are required to obey these rules and the Uniform Code of Military Justice (UCMJ). Soldiers who fail to comply with these laws may be subject to disciplinary action, to include court-martial. 3. Prohibitions on Targets. a. The customary law of war and the Hague Convention establish definite requirements which limit the kinds of targets military forces can attack and the weapons that can be used. b. In accordance with these provisions, appropriate military Commanders issue Rules of Engagement (ROE) which tell Soldiers where, when, and what they can shoot. These rules may differ from one combat zone to another. These rules of engagement must always embody as a minimum, the requirements of the Hague Convention. Chapter 6 Operational Law Page 293

300 c. International law prohibits the launching of attacks against either the civilian population or against individual civilians. It is unavoidable that civilians will be caught up in wars and that they will unfortunately become unwanted casualties due to military forces attacking legitimate military targets. But, civilians are never intentionally targeted, and every effort must be made in so far as is feasible to avoid or to limit civilian casualties. The only exception is that Soldiers may act in self-defense when a civilian commits a hostile act or demonstrates hostile intent. d. The Hague Conventions prohibit the destruction or the seizure of enemy property unless imperatively demanded by the necessities of war. e. Under the provisions of the Hague Conventions, a military target or a place occupied by a combatant force can be attacked. f. The attack or shelling by any means whatsoever of undefended towns, villages, dwellings, or buildings is prohibited. g. Attack, including bombardment, is permissible against military objectives. Military objectives include combatants, and those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances present at the time, offers a definite military advantage. Examples of military objectives include factories producing munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports and railroads being used for the transportation of military supplies, and other places that are for the accommodation of troops or the support of military operations. h. Prior to attacking a military target, a Commander or Soldier must conduct a proportionality analysis. This analysis requires that the amount of damage to civilian objects must not be excessive in relation to the expected concrete military advantage gained by the attack. In other words, the expected military advantage must be greater than the expected collateral damage. If a Soldier s analysis is reasonable, the resulting collateral damage to civilian objects is not a violation of the law of war, even if the resulting collateral damage is greater than what was expected. Commanders and Soldiers should attempt to minimize collateral damage during operations in order to comply with this law of war requirement of proportionality. i. In attacks and shellings, all necessary measures must be taken to spare, as far as possible, nonmilitary facilities to include buildings dedicated to religion, art, science, or charitable purposes. The same principle applies to historic monuments, hospitals, and other places where the sick and wounded are collected, even if enemy Soldiers are the sick and wounded inside of those areas, provided these buildings and places are not being used for military purposes. j. In summary, the rules governing targets are: (1) Never deliberately target civilians. Chapter 6 Operational Law Page 294

301 (2) Never destroy or seize enemy property unless military necessity requires seizure or destruction. (3) Regardless of military necessity, never destroy undefended towns, villages, or dwellings. (4) While defended places or military targets can be attacked, spare if possible schools, churches, hospitals, and similar institutions from destruction and avoid causing suffering out of proportion to the performance of the military mission. 4. Prohibited/Illegal Acts and Methods. a. The law of war prohibits certain treacherous acts. (1) For example, during World War II the Nazis improperly identified some buildings as hospitals and certain areas as protected areas. The Nazis really used these buildings or areas for direct military purposes such as observation posts, troop billets, defensive positions, or ammunition storage. (2) Another example of a treacherous act would be pretending to surrender in order to facilitate an attack upon an unsuspecting enemy. (3) Such tactics are prohibited because they take advantage of an enemy's obligation to follow the law of war. b. Buildings being used for military purposes, but improperly marked, may be attacked. c. Buildings, such as hospitals, may often be located close to legitimate military targets. An attack on the legitimate target which unavoidably causes collateral damage to the other buildings is not a violation of a convention or customary law. Nevertheless, one should strive to cause no greater destruction of enemy property than necessary to accomplish the military mission. 5. Prohibitions on Weapons. a. The customary law of war and the Hague Conventions limit the weapons the armed forces can use. Under the Hague Conventions, the employment of arms, material, or projectiles designed to cause unnecessary suffering is prohibited. (1) These principles have established the illegality of the use of irregularshaped bullets, dum-dum bullets, projectiles (filled with glass), and any substances or projectiles that would tend to inflame a wound. The use of these weapons is always illegal. Chapter 6 Operational Law Page 295

302 (2) The U.S. Department of Defense (DoD) requires that a legal review be performed on all new U.S. weapons to ensure that they comply with the provisions of the law of war. No weapon which is illegal is issued to any American Soldier. b. However, it is possible for a Soldier to violate the law of war by misusing an issued weapon in an illegal manner. The law of war prohibits the use of weapons calculated to cause unnecessary suffering. An example of a Soldier misusing a legitimate weapon would be cutting off the tip of a bullet. When this bullet hits someone, it expands and leaves a gaping wound. Such bullets cause unnecessary suffering and are forbidden. Their use violates the law of war. Additionally, this misuse of a legitimate weapon is a crime for which the Soldier can be prosecuted. 6. Humane Treatment of Noncombatants. a. The customary law of war and the Geneva Conventions establish rules governing treatment of noncombatants. The term "noncombatants" includes prisoners of war, sick and wounded, and civilians. b. These rules are embodied in the general principle that all prisoners of war, civilians or other detained personnel should be treated humanely. c. A Soldier can fulfill the military mission and still treat these people in a humane manner. d. Many of these individuals will be victims of war; some may be enemy Soldiers, but once captured, they are all entitled to the same humane treatment. e. What does it mean to "treat humanely"? (1) If Soldiers treat others as they would like their Soldiers to be treated if they were captured or detained, they would be treating persons humanely. (2) A noncombatant in your custody should not be harmed. (3) Common Article 3 of the Geneva Conventions provides as a minimum that persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those who can no longer fight because of sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction based on race, color, religion, or faith, sex, birth, wealth, or other similar criteria. (4) The wounded and sick must be collected and cared for. (5) Furthermore, certain acts are prohibited at any time and in any place whatsoever. These include: Chapter 6 Operational Law Page 296

303 (a) Violation of life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment; and (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 7. Humane Treatment of Enemy Prisoners of War (EPW). a. Prisoners of war must receive the same humane treatment as other noncombatants. b. For example, your military unit is operating in an area believed to be heavily infested with enemy Soldiers. You discover an unarmed young man dressed as a farmer hiding. Though the person is dressed as a civilian and unarmed, you believe the person is an enemy Soldier and fear his presence may jeopardize your unit's security. May the person be killed? The answer is "no", but, may be detained to determine status. This concept is also contained in United States doctrine as stated in DoDDs E. The DoD Detainee Program, and E, The DoD Law of War Program. DoDD E requires that all detainees must be treated humanely in accordance with all applicable law. At a minimum, the standards of Common Article 3 of the Geneva Conventions are applicable to all detainees. DoDD E requires that violations of the law of war, including the improper treatment of persons and detainees, be reported, and remedied by corrective actions. c. A Commander may not put his prisoners to death because their presence retards his movements or diminishes his power of resistance by necessitating a large guard or by reason of their consuming supplies, or because it appears certain that they will regain their liberty through the impending success of their forces. d. It is likewise unlawful for a Commander to kill his prisoners on the ground of selfpreservation, even in the case of airborne or commando operations, although the circumstances of the operation may make necessary rigorous supervision of and restraint upon the movement of prisoners of war. e. No one may be harmed or killed who has fallen into our hands. Though persons are suspected of being enemy Soldiers, it cannot be definitely known that they are until an Article 5 tribunal is conducted. The individual Soldier does not make the determination of whether or not the captive is an enemy Soldier. Furthermore, even if the individuals are enemy Soldiers, they may not be killed or harmed. Chapter 6 Operational Law Page 297

304 (1) Even if they are spies, the same rule applies. (2) All captured persons are entitled to be treated as prisoners of war until their actual status is determined. Combat Soldiers do not determine the status of any captured person. All persons captured or detained should be evacuated to the detainee collecting point where proper authorities can then classify them. (3) Once persons are under control, they must be treated humanely. (a) Murder or physical abuse of captured persons never is, has been, or will be, humane treatment. These acts are strictly prohibited. (b) A Soldier who murders a captured person commits a capital offense under the UCMJ. f. Your military unit captures wounded and hungry enemy Soldiers who you believe know the location of enemy units in the area. May you deny the captives food and medical treatment until they tell you what you want to know? The answer is "no". information. (1) The Geneva Conventions prohibit using force against prisoners to obtain (2) No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. (3) There are humane and practical reasons for this prohibition. Information cannot be obtained from a dead person. Additionally, combat experience proves that intelligence secured by torture is unreliable. Furthermore, torture makes it difficult for the trained interrogator to secure accurate intelligence later. A trained interrogator can obtain more complete and accurate information through legitimate, skillful questioning. That is the practical reason why it is important to send a captive back to the detainee collecting point so that a professional interrogator can begin questioning the captive as quickly as possible. The Conventions specifically demand that captured persons be promptly evacuated to the rear. 8. Humane Treatment of Civilians. a. Assume that while conducting a sweep operation through an enemy village, a unit rounds up men, women, and children who are suspected of being either the parents, spouses, and children of enemy Soldiers or enemy sympathizers. May they execute them and burn their homes: (1) as a warning to other enemy sympathizers, or (2) in retaliation for their suspected participation in the enemy war effort? (1) The answer is "no". Chapter 6 Operational Law Page 298

305 (2) Under the Geneva Convention, the civilian population of the country in conflict is entitled to respect for their persons, honor, family rights, religious convictions and practices, and manners and customs. (3) They must be protected especially against all acts or threats of violence against insults and public curiosity. (4) Women should be especially protected against attack, in particular against enforced prostitution, rape, or any other form of sexual assault. b. All persons are to be treated humanely and without any adverse distinction based on race, religion, or political opinion. While the occupying force may enforce control and security measures, Commanders at all levels must ensure that all persons are treated humanely. These persons may not be subjected to murder, torture, corporal punishment, mutilation, or any form of physical or mental coercion. No person can be subjected to medical or scientific experiments, nor made the object of collective penalties or reprisals, or held hostage. Their property must be protected from pillage or looting. c. Members of the civilian population cannot be brutalized or executed without trial. d. This does not mean that an occupation power cannot demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for the security of its forces, the maintenance of law and order, and the proper administration of the country. (1) Occupation laws may be established, and civilians tried and punished for violations of these ordinances in military courts. (2) These courts may adjudge appropriate penalties, including the death penalty for certain offenses. 9. Responsibilities of U.S. Soldiers to Obey the Law of War. a. The American Soldier is bound to obey all the rules of the customary law of war and the Hague and Geneva Conventions. b. According to the U.S. Constitution, treaties such as the Hague and Geneva Conventions are the supreme law of the land. The military is bound by them just as they are by the Constitution or any law enacted by the U.S. Congress. c. The Hague and Geneva Conventions and the customary law of war explain that the American Soldier: law of war. (1) Must not obey an order which, if executed, is a crime in violation of the Chapter 6 Operational Law Page 299

306 (2) Is obligated to report any violation of the law. commits. (3) Is criminally responsible for any unlawful act which he personally d. If Soldiers violate these basic humanitarian rules, they can be court-martialed under the appropriate provision of the UCMJ. The UCMJ forbids acts such as assault, pillage, rape, and murder and other offenses. These acts are no less criminal when committed against a prisoner of war or some other detained or captured person. 10. Responsibilities of the Commander. a. The legal responsibility for the commission of war crimes frequently can be placed on the military Commander as well as on subordinates who may have actually committed the crime. b. Since Commanders are responsible for the actions of those in their commands, Commanders may be prosecuted for war crimes if they (1) Ordered their troops to commit the war crime; or prevent it; or (2) If they knew that a war crime was going to be committed and failed to (3) If they should have known, through reports or by other means, that those in the command were about to commit or have committed a war crime, and they failed to take reasonable steps to prevent such a crime or punish those guilty of a violation. c. As a minimum, such a Commander is guilty of dereliction of duty. 11. Criminal Orders and a Soldier's Responsibility Toward Them. a. In all cases, the person who actually commits a crime is subject to punishment, even if he acted pursuant to the orders of a superior. The Soldier who pulls the trigger, killing a prisoner of war who has just surrendered cannot excuse the act by claiming that the Commander said to "take care of the prisoner, which the Soldier understood to be an order to execute the prisoner. b. Acting under superior orders is no defense to criminal charges when the order is clearly one to commit a criminal act. Likewise, the person who actually commits a war crime is not excused just because another person (e.g., the Commander who issued the order) is charged with the war crime. While an American Soldier must promptly obey all legal orders, he must also disobey an illegal order which would require him to commit a criminal act in violation of the law of war. Chapter 6 Operational Law Page 300

307 c. An order to execute a prisoner or detainee, to torture or abuse prisoners to get them to talk, or to torture anyone is obviously criminal. These are orders whose criminal content is very clear. 12. Soldier's Obligations to Disobey a Criminal Order. a. When a Soldier is given a criminal order, the Soldier should try to get the order rescinded by informing the person who gave the order that it violates the law of war. b. If the criminal order stands, the Soldier must disobey it. c. If the Soldier fails to disobey the criminal order, the Soldier can be tried and punished for committing a criminal act. No one can force the Soldier to commit a crime, and the Soldier cannot be court-martialed or punished in any way if the Soldier refuses to obey. 13. Soldier's Obligation to Report Violations of the Law of War. a. As an American Soldier, you are obligated to report any known or suspected violations of the law of war through your chain of command. Reporting through the chain of command ensures that the information reaches the appropriate authorities so that proper action can be taken. b. The U.S. Department of Defense (DoD) requires that all war crimes, whether committed by U.S. personnel or enemy personnel be reported and investigated. c. A Soldier may hesitate to report through his/her chain of command if someone in the chain above him/her was involved in the alleged crime, or the Soldier feels that such channels would not be effective. At such times, the Soldier can report to, or discuss any possible violations with, other officers, such as the inspector general, provost marshal, Judge Advocate, or chaplain. d. The staff officer who receives a report alleging a violation of the law of war must take appropriate steps to report or to investigate the allegation. The staff officer must advise the Commander of the allegation. The staff officer must also advise the next higher Commander of the report and the actions taken. e. To whomever the Soldier decides to go, he/she should report any suspected violation immediately. Evidence is lost and witnesses disappear unless an investigation is begun promptly. Moreover, an early investigation will quickly dispel any mistaken charges. Chapter 6 Operational Law Page 301

308 FM Hague Conventions Geneva Conventions OPLAW Handbook References Performance Measures: None. Chapter 6 Operational Law Page 302

309 Apply Standing Rules of Engagement (SROE) Principles Conditions: You are a Paralegal working in a Brigade Operational Law Team. You must be able to understand the Standing Rules of Engagement and be able to assist your Judge Advocate and Commanders when establishing the Rules of Engagement for your unit s specific mission. You will have access to all necessary regulations and the Legal Annex of your next higher command. Performance Steps: 1. Rules of Engagement. a. Rules of Engagement (ROE) defined - The definition is contained in Joint Publication 1-02; DoD Dictionary of Military and Associated Terms, and states as follows: Directives issued by competent military authority to delineate the circumstances and limitations under which its own naval, ground, and air forces will initiate and/or continue combat engagement with other forces encountered. b. T he role of Judge Advocate General Officers and Paralegals in the ROE process - Judge Advocates and Paralegals assist Commanders in ROE preparation, dissemination, and training. In order to ensure that ROE are legally and tactically sound, versatile, understandable, and easily executed, both the Judge Advocates and Paralegals must understand the full breadth of the policy, legal, and mission concerns they embrace, and collaborate closely with Commanders in their development, training, and implementation. Judge Advocates and Paralegals must become familiar with mission and operational concepts, force and weapons systems capabilities and constraints, battlefield operating systems, and the Joint Operations Planning and Execution System (JOPES) as well as maintaining knowledge of international and domestic legal limitations on the use of force and the laws of armed conflict. c. ROE Purposes. (1) Generally. ROE are the primary tools used to regulate the use of force and thereby serve as one of the cornerstones of the Operational Law discipline. The legal factors which serve as a foundation for ROE, that is, customary and conventional law principles regarding the right of self-defense and the laws of war, are varied and complex. They do not, however, stand alone; non-legal issues, such as political objectives and military mission limitations, also play an essential role in the construction and application of ROE. Chapter 6 Operational Law Page 303

310 (2) Political Purposes. ROE ensure that national policy and objectives are reflected in the action of Commanders in the field, particularly under circumstances in which communication with the next higher authority in the chain of command is not possible. For example, in reflecting national political and diplomatic purposes, the ROE may restrict the engagement of certain targets, or the use of particular weapons systems, out of a desire not to antagonize the enemy, tilt world opinion in a particular direction, or as a positive limit on the escalation of hostilities. Falling within the array of political concerns are such issues as the influence of international public opinion - and particularly how it is affected by media coverage of a specific operation - the effect of host country law, and the status of agreements with the U.S. (i.e., SOFAs). (3) Military Purposes. ROE provide parameters within which the Commander must operate in order to accomplish the assigned mission: (a) ROE provide a ceiling on operations and ensure that U.S. actions do not trigger undesired escalation - i.e., pushing a potential opponent into a self-defense response. (b) ROE may regulate the Commander s capability to influence an action through his authority to either grant or withhold the use of particular weapons systems by vesting or restricting authority to use certain types of weapons or tactics. For example authority to use riot-control agents (RCAs) may be delegated to specified Brigade Commanders for use in a limited set of circumstances. (c) ROE may also reemphasize the scope of a mission by their implementation; units deployed overseas for training exercises may be limited to use of force only in self-defense, reinforcing the training rather than combat nature of the mission. (4) Legal Purposes. ROE provide restraints on a Commander s action consistent with both domestic and international law and may, under certain circumstances, impose greater restrictions on action than those required by the law. Commanders must be intimately familiar with the legal bases for their mission. The Commander may issue ROE to reinforce principles of the law of war, such as prohibitions on the destruction of religious or cultural property, and minimization of injury to civilians and civilian property. d. Pocket Cards/ROE Cards: A summary or extract of mission specific ROE; they are unclassified and serve as a training and memory tool. ROE Cards are not a substitute for actual knowledge of ROE or training ROE by use of situational training. ROE Cards normally include: (1) Forces that are declared hostile. (2) Persons/Property that should/may be protected with up to deadly force. (3) Detention Issues, including situations authorizing detention and procedures to follow. Chapter 6 Operational Law Page 304

311 2. Standing Rules of Engagement (SROE). a. Standing Rules of Engagement (SROE) defined - The term SROE refers to the Standing Rules of Engagement. The SROE implements the inherent right of self-defense and provides guidance for the application of force for mission accomplishment. b. SROE applicability - The SROE applies to all military operations and contingencies outside US territory, and to air and maritime homeland defense missions within US territory. 3. Key SROE Issues. a. SROE & Self-Defense (1) SROE Policy. these rules [SROE] do not limit a Commander s inherent authority and obligation to use all necessary means available, and to take all appropriate action, in self-defense of the Commander s unit and other U.S. forces in the vicinity. (2) Types of Self-Defense. The inherent right of Self-Defense applies: (a) National Self-Defense. Defense of the United States, U.S. forces, U.S. nationals and their property and/or U.S. commercial assets. (b) Collective Self-Defense. Defense of designated non-u.s. forces and/or designated foreign nationals and their property from a hostile act or demonstrated hostile intent. May not be exercised below the President or Secretary of Defense level. (c) Unit Self-Defense. Defense of a particular U.S. force element, including individual personnel thereof, and other U.S. forces in the vicinity against a hostile act or demonstrated hostile intent. (d) Individual Self-Defense. Defense of oneself and U.S. forces in one s vicinity from a hostile act or demonstrated hostile intent. Commanders may limit individual self-defense by members of their units. b. Necessity and Proportionality. A Commander has the inherent authority and obligation to use all necessary means available, and to take all appropriate action, to defend that Commander's unit and other U.S. forces in the vicinity from a hostile act or demonstrated hostile intent. Neither the SROE, nor the supplemental measures activated to augment the SROE, limit this inherent right and obligation. At all times, however, the requirements of necessity and proportionality will be the basis for the judgment of the Commander as to what constitutes an appropriate response to a particular hostile act or demonstration of hostile intent. (1) Necessity exists when a hostile act occurs or when a force or individual exhibit hostile intent. Chapter 6 Operational Law Page 305

312 (2) Proportionality means that the force used should be sufficient to respond decisively to hostile acts or demonstrations of hostile intent and may exceed the means and intensity of the hostile act or hostile intent, but the nature and duration and scope of force used should not exceed what is required. A common aid used to train the concept of proportionality is the mnemonic of the four S s. The four S s stand for: Shout, shove, show, shoot. (Shout verbal warning; Shove use non-lethal physical force; Show show your weapon and intent to use it; Shoot fire to eliminate the threat) (3) Use of Force for mission. The SROE distinguish between the right and obligation of self-defense - which is non-derogable (cannot be taken away) - and use of force for the accomplishment of an assigned mission. Authority to use force in mission accomplishment may be limited in light of political, military or legal concerns - but such limitations have NO impact on the Commander s right and obligation of self-defense. The use of force to accomplish a specific mission represents an escalation of the level of violence associated with the mission. The Judge Advocate must ensure that the ROE are clear and based on legally sound authority when guiding Commanders and Soldiers on the parameters for the use of force in defense of the mission. c. Prerequisites to Self-Defense (1) Hostile Act. An attack or other use of force against the U.S., U.S. forces, or other designated persons and property; or, a use of force intended to preclude or impede the mission of U.S. forces. A hostile act triggers the right to use proportional force in self-defense to deter, neutralize, or destroy the threat. (2) Hostile Intent. The threat of imminent use of force against the U.S., U.S. forces, or other designated persons and property; or, threat of force to preclude or impede the mission and/or duties of U.S. Forces. When hostile intent is present, the right exists to use proportional force in self-defense to deter, neutralize, or destroy the threat. (3) Declared Hostile Force. Any civilian, paramilitary or military force, or terrorist that has been declared hostile by appropriate US authority.. (4) Declaring Forces Hostile. Once a force is declared hostile, U.S. units may engage without observing a hostile act or demonstration of hostile intent, i.e., the basis for engagement shifts from conduct to status. The authority to declare a force hostile is limited and may be found at Appendix A to Enclosure A of the SROE. (a) All necessary means available and all appropriate actions may be taken in self-defense. (b) Attempt to De-escalate the situation: When time and circumstances permit, attempt to de-escalate the situation by giving a warning and an opportunity to withdraw or cease threatening actions. (Guideline) Chapter 6 Operational Law Page 306

313 (c) Use Proportional Force: When the use of force in self-defense is necessary, the nature, duration, and scope of the engagement should not exceed that which is required to decisively counter the hostile act or demonstrated hostile intent. FM OPLAW Handbook Joint Publication 1-02 References Performance Measures: None. Chapter 6 Operational Law Page 307

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