Blogs from 2019

Article 117a, UCMJ, colloquially referred to as the UCMJ’s “revenge porn” article, criminalizes the wrongful broadcast or distribution of intimate visual images. Article 117a was codified in response to the 2017 “Marines United” scandal in which nude images of female servicemembers and civilians were posted on Facebook by military members.

Elements

To be punishable under Article 117a, UCMJ, the Government must prove that:

1. The accused knowingly and wrongfully broadcast or distributed an intimate visual image of another person or a visual image of sexually explicit conduct involving another;
2. The accused knew or reasonably should have known that the intimate visual image was made under circumstances in which the person depicted in the intimate visual image retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image;
3. The accused knew or reasonably should have known that the broadcast or distribution of the intimate visual image was likely—(A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image; or (B) to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and
4. The accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.

The Government must also show that the intimate visual image or visual image of sexually explicit conduct involved a person who—(A) was at least 18 years of age at the time the intimate visual image was created; (B) is identifiable from the image itself or from information displayed in connection with the image; and (C) did not explicitly consent to the broadcast or distribution of the intimate visual image.

Definitions

Article 117a defines an “intimate visual image” as a “visual image that depicts the private area of person.” The term “private area” means the “naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.” Article 117a broadly defines “sexually explicit conduct” to include “actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.”

Defenses

There are many potential defenses to an Article 117a allegation. Article 117a is a specific intent crime which requires proof that the accused “knowingly and wrongfully broadcast or distributed” the image. Evidence of any degree of voluntary intoxication, whether by drugs or alcohol, may be admissible for the purpose of raising a reasonable doubt as to the existence of actual knowledge and specific intent.  Additionally, the Government cannot prevail on a charge under Article 117a if the person depicted in the image is not identifiable, explicitly consented to the broadcast or distribution of the image, or if the accused did not know or reasonably should have known that the person depicted in the image had a reasonable expectation of privacy regarding any broadcast or distribution of the image. The statute defines a “reasonable expectation of privacy” as “circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.”  An Article 117a charge also be defeated if there is no proof that the conduct had a reasonably direct and palpable connection to the military mission or military environment. In other words, there must be a military nexus to the offense.

Maximum Punishment

The maximum punishment for a violation of Article 117a is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

The post UCMJ Article 117a Criminalizes “Revenge Porn” appeared first on Military Justice Attorneys.

Assault & Battery

Assault and battery are closely related, but they are not quite the same. The distinction is usually whether contact occurs. One can commit an assault without committing a battery; however, one cannot commit a battery without also committing an assault.

Article 128 of the UCMJ deals with assault and battery. For purposes of this post, only Assault and Aggravated Assault will be covered. The UCMJ provides the following elements for the offenses of Assault and Aggravated Assault:

Assault

• An attempt to do bodily harm to another person;
• An offer to do bodily harm to another person; or
• Actually doing bodily harm to another person.

Aggravated Assault

• An offer to do bodily harm with a dangerous weapon with the intent to do bodily harm; or
• Inflicting substantial bodily harm or grievous bodily harm on another person while committing an assault.

The UCMJ expands these elements to fit multiple types of offenses. These include simple assault; assault consummated by battery; assault upon a commissioned, warrant, noncommissioned, or petty officer; assault upon a sentinel or lookout in the execution of duty or upon a person executing law enforcement duties.

Assault Explained

Assault does not require a person to be physically harmed, even though there are many instances where an assault is committed which does cause physical harm. The military (and most civilian criminal courts) has a strong interest in preventing unlawful harmful conduct between people. In fact, American citizens have a constitutional right to personal liberty, which includes freedom from unlawful harmful conduct by others. Because the interest is so high, the UCMJ punishes conduct along the entire spectrum of assault. Since the root of an assault is in a threat of violence, Art. 128 prohibits even threats of bodily harm.

Typically, the punishment for assault increases with the level of danger of the conduct. This is why aggravated assault is set out in Art. 128 separately. Aggravated assault is just that; it specially includes conduct involving dangerous weapons or substantial bodily harm. Art. 128 defines a dangerous weapon as one which is used in a manner of inflicting death or grievous bodily harm.

Defenses

Defenses to an assault case depend on the individual circumstances. As with all cases, the elements of the crime must have been committed by the individual. However, since there are various types of the offense of assault, defenses to the elements will change depending on the type of assault alleged.

For instance, consider the intent elements of aggravated assault. Aggravated assault can come in two types: assault with a dangerous weapon or assault which inflicts substantial or grievous bodily injury. To be guilty of the former, the accused must have specifically intended to do bodily harm while using a dangerous weapon. But to be guilty of the latter, the accused only must have generally intended to assault another person; it does not require a specific intent to cause substantial bodily harm.

Maximum Punishment

Since Article 128 encompasses such a wide variety of conduct, the maximum punishment a person can receive depends on the specification of assault. Maximum punishment of some of the more frequently charged crimes are as follows:

• Simple assault: Confinement for 3 months and 2/3 pay forfeiture for three months
• Assault consummated by battery: Bad conduct discharge; forfeiture of all pay and allowances; confinement for 3 years.
• Assault upon a commissioned officer: Dishonorable discharge (DD); forfeiture of all pay and allowances; confinement for 3 years.
• Assault consummated by battery upon a child under 16, a spouse, an intimate partner, or an immediate family member: DD; forfeiture of all pay and allowances; confinement for 2 years.
• Agg. assault with a dangerous weapon: DD; forfeiture of all pay/allowances – total forfeitures; confinement of 3-8 years.
• Agg assault inflicting substantial bodily harm: DD; forfeiture of all pay/allowances; confinement of 3-8 years.
• Agg. assault inflicting grievous bodily harm: DD; forfeiture of all pay/allowances; confinement of 5-10 years.
• Agg. assault with intent to commit murder, rape, or rape of a child: DD; forfeiture of all pay/allowances; confinement of 20 years.
• Agg. assault with intent to commit voluntary manslaughter, robbery, arson, burglary, and kidnapping: DD; forfeiture of all pay/allowances; confinement of 10 years.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ, including assault, and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 128, UCMJ – Assault appeared first on Military Justice Attorneys.

People are often surprised to learn that extramarital sexual conduct, which includes “adultery”, is a crime in the military. While this military-specific offense might seem harmless enough to civilians, the military takes such conduct very seriously. Service members convicted of extramarital sexual conduct can receive a federal criminal conviction, confinement, and a punitive discharge from the military.

MJA has defended countless service members facing investigation, court-martial, and discipline for extramarital sexual conduct, including adultery. Contact one of our military defense lawyers today to learn more.

Background

Historically, extramarital sexual conduct like adultery was criminalized to maintain good order and discipline within the military. It’s not difficult to imagine the negative impact adultery could have on morale or mission accomplishment if a commanding officer was found to be sleeping with the spouse of one of his Soldiers, or if a deployed service member was constantly distracted by the fear that their spouse would be hit on by service members back home.

In 2019, the specific crime of “Adultery” was replaced with the more general offense of “Extramarital sexual conduct” under Article 134, UCMJ. The new offense, which incorporates the elements of “adultery”, is designed to prevent and criminalize sexual conduct which negatively impacts the military environment.

Elements

However, not all acts of extramarital sexual conduct are criminal. Extramarital sexual conduct is only illegal for members of the armed forces under certain circumstances. To be punishable under Article 134, UCMJ, the Government must prove three elements:

• That the accused wrongfully engaged in extramarital conduct with a certain person;
• That, at the time, the accused knew that they or the other person was married to someone else; and
• That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

“Extramarital sexual conduct” includes the following sexual acts between persons of the same or opposite sex: genital to genital sexual intercourse; oral to genital sexual intercourse; anal to genital sexual intercourse; and oral to anal sexual intercourse.

Terminal Element

For consensual sexual conduct to be punishable under Article 134, UCMJ, the government must prove what’s called the “terminal element.” The terminal element is necessary for all Article 134 offenses. It requires the government prove that the conduct at issue was either: (i) to the prejudice of good order and discipline in the armed forces; or (ii) was of a nature to bring discredit upon the armed forces.

To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline. While every improper act by a service member could be viewed as prejudicial in some indirect or remote sense, that is not enough to make the conduct criminal under Article 134. Rather, the prejudice to good order and discipline must be “reasonably direct and palpable.”

Alternatively, extramarital sexual conduct may be punishable if it’s of a nature to bring discredit upon the armed forces. “Discredit” means to injure the reputation of. This includes any “conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem.”

Defenses

Article 134 allows the defense of mistake of fact if the accused had an honest and reasonable belief that either he or his paramour were unmarried or legally separated. If the accused can put forward evidence supporting this belief, the burden is on the government to prove otherwise.

The 2019 revisions to the Manual for Courts-Martial (MCM) also added a new affirmative defense: legal separation. For this defense to apply, both parties must be either unmarried or legally separated at the time of the conduct. Importantly, legal separation can only occur by court order.

Maximum Punishment

A service member convicted under Article 134 for extramarital sexual misconduct faces a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

Protect Your Freedom and Military Career

When your life, career, and future are on the line, you need an experienced military law firm in your corner. Our experienced and skilled military attorneys will aggressively defend you at every step. With decades of combined military justice experience as both former active duty judge advocates and private defense attorneys, we zealously defend each of our clients.

For a free consultation, call us today at (843) 773-5501.

The post Understanding Article 134, UCMJ – Extramarital Sexual Conduct appeared first on Military Justice Attorneys.

From 2002 to 2016, the U.S. Department of Defense contracted with 3M, a Minnesota company, to manufacture and supply ear plugs for servicemembers. The ear plugs 3M provided were called the Dual Ended Combat Arms Earplugs (CAEv2) and were provided as standard issue to members of every branch. The ear plugs were supposed to provide two features depending on which side the member inserted.

One side of the ear plugs was designed to block most sound much like traditional ear plugs. The other side was designed to block harmful loud noises while allowing less harmful sound, such as conversations, to be heard. Unfortunately, the ear plugs were flawed in their design and did not perform as 3M represented that they would.

This design flaw led to serious hearing problems for many members of the Armed Forces and led to a claim by the DoD against 3M. The DoD alleged that 3M discovered the design flaw in 2000 but continued to provide the service branches with the ear plugs without warning of any issues with the ear plugs. The claim by the DoD was settled by 3M for over 9 million dollars in 2018. However, the DoD settlement is not structured to compensate servicemembers whose hearing was damaged as a result of the 3M ear plugs.

Servicemembers who served between 2002 and 2016 and suffered hearing loss or tinnitus may be entitled to financial compensation. Currently, MJA is participating in multi-district litigation in order to get our clients the compensation they deserve. If you or a loved one served in the Armed Forces between 2002 and 2016 and has suffered hearing loss or tinnitus, please contact us for a free consultation and case evaluation.

The post 3M Combat Arms Earplugs Lawsuit appeared first on Military Justice Attorneys.

Manslaughter is among the most serious UCMJ offenses. It’s a crime that everyone has heard of but only a few understand the legal definition. So what’s the difference between voluntary and involuntary manslaughter? What are the possible punishments? And, most importantly, how do you defend against a charge of manslaughter? Find out these answers, and more, below.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including manslaughter. Contact one of our military defense lawyers today to learn more.

Article 119, UCMJ (Manslaughter)

There are two types of manslaughter under the UCMJ: voluntary and involuntary.  Voluntary manslaughter occurs when a person is unlawfully killed “in the heat of sudden passion caused by adequate provocation.”  Involuntary manslaughter is when a death results from “culpable negligence” or occurs during the commission of certain offenses.  The elements for these offenses are as follows:

Voluntary Manslaughter

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon the person killed.

Involuntary Manslaughter

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Manslaughter Explained

Voluntary manslaughter, like murder under Article 118, requires the intent to kill or inflict great bodily harm. The difference between the two acts is that voluntary manslaughter occurs if the unlawful killing is “committed in the heat of sudden passion caused by adequate provocation.”  Common examples of circumstances which may constitute adequate provocation are unlawful infliction of great bodily harm, unlawful imprisonment, and when one spouse catches another spouse in an act of adultery. Adequate provocation does not excuse the homicide but does preclude a conviction of murder.

Involuntary manslaughter, on the other hand, does not require a specific intent to kill or inflict great bodily injury.  Rather, involuntary manslaughter occurs when a death is the result of “culpable negligence.”  Culpable negligence is greater than simple negligence—as is required for a charge of Negligent Homicide under Article 134—and is defined as a “negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to other of that act or omission.” 

In other words, culpable negligence occurs if an act might foreseeably result in someone’s death.  Common examples of acts that could be considered culpable negligence include conducting target practice in the direction of an inhabited house or pointing a pistol in jest at someone and pulling the trigger, believing, but without taking reasonable precautions to determine, whether it was loaded.

Defenses

Rule for Court-Martial (R.C.M.) 916 provides defenses to manslaughter. These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.

An experienced military attorney will be able to evaluate your case to determine what defense may apply and what evidence is needed to support that defense. An accused’s abillity to raise a defense may be limited by the facts or law, or may become difficult to raise if the service member provides a statement to law enforcement during the investigation.

Maximum Punishment

The maximum punishment for voluntary manslaughter is a dishonorable discharge and confinement for 15 years.  Involuntary manslaughter carries the risk of a dishonorable discharge and confinement for 10 years.  The maximum punishment for both charges increases by 5 years of confinement for the death of a child under 16 years of age.

Pretrial Confinement

Service members suspected of manslaughter are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including manslaughter. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

Know Your Rights

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are some key rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended service members facing investigations, trials, and discipline for the most serious offenses under the UCMJ, including manslaughter, and will ensure that every avenue of defense is aggressively pursued on your behalf. Contact MJA on our website or call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 119, UCMJ – Manslaughter appeared first on Military Justice Attorneys.

Absence Without Leave (AWOL)

There are multiple punitive articles that deal with military members who leave their place of duty without authorization. Several articles deal with specific instances of unauthorized absence. For example, Article 85 deals with Desertion, which includes such conduct as leaving a place of duty without authority and with the intent to remain away permanently; or Article 95, which punishes sentinels or lookouts on duty who leave their post without being relieved. But given that the military is committed to good order and discipline, the UCMJ also provides a general prohibition against being absent from a place of duty without authorization in any circumstance.

Article 86 prohibits absence without leave – colloquially known as AWOL. Per the UCMJ, Article 86 “is designed to cover every case not elsewhere provided for in which any member of the armed forces is . . . not at the place where the member is required to be at a prescribed time.” This article ranges from a general failure to appear at an appointed place of duty to more serious conduct such as abandoning a watch, guard, or duty post. Article 86 charges may be adjudicated at non-judicial punishment (NJP) or court-martial.

Elements

For an unauthorized absence to be punishable under the UCMJ, the Government must prove the following elements depending on specific absence alleged:

1. Failure to go to appointed place of duty.
   • That a certain authority appointed a certain time and place of duty for the accused;
   • That the accused knew of that time and place; and
   • That the accused, without authority, failed to go to the appointed place of duty at the time prescribed.
2. Going from appointed place of duty.
   • That a certain authority appointed a certain time and place of duty for the accused;
   • That the accused knew of that time and place; and
   • That the accused, without authority, went from the appointed place of duty after having reported at such place.
3. Absence from unit, organization, or place of duty.
   • That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
   • That the absence was without authority from anyone competent to give him or her leave; and
   • That the absence was for a certain period of time.
   • That the absence was terminated by apprehension [If applicable].
4. Abandoning watch or guard.
   • That the accused was a member of a guard, watch, or duty;
   • That the accused absented himself or herself from his or her guard, watch, or duty section;
   • That absence of the accused was without authority; and
   • That the accused intended to abandon his or her guard, watch, or duty section [If applicable].
5. Absence from unit, organization, or place of duty with intent to avoid maneuvers or field exercises.
   • That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
   • That the absence of the accused was without authority;
   • That the absence was for a certain period of time;
   • That the accused knew that the absence would occur during a part of a period of maneuvers or field exercises; and
   • That the accused intended to avoid all or part of a period of maneuvers or field exercises.

Defenses

There are two main defenses to Article 86 that can be asserted. The first deals with actual knowledge. In order to be convicted of being AWOL, the accused must have actual knowledge of his appointed time and place of duty. For example, where a member’s unit is ordered to report at 1400 on 1 December 2019, but his documentation says 1400 on 5 December 2019 (and no one tells him any different), he cannot be said to be absent without leave on 2 December 2019. Actual knowledge is vital to an Article 86 prosecution.

Another good defense to Article 86 deals with inability to return. Where a member who is AWOL is dealing with a difficulty that prevents him from returning, such as sickness or lack of transportation, evidence of the difficulty can be used to mitigate the penalties the accused is subject to. Typically, an inability to return defense is an extenuating circumstance rather than a complete defense to prosecution. However, when a member on authorized leave, without fault, is unable to return when leave expires, that person has not committed the offense of being AWOL.

Undiagnosed mental health conditions may also play a role in a servicemember’s decision to go AWOL. Upon return to military custody, it is critical that the servicemember receive immediate and appropriate medical treatment. A mental health diagnosis can be important evidence in extenuation and may later form the basis for a discharge upgrade if the servicemember is separated from the military under general or other than honorable conditions.

Maximum Punishments

The maximum punishment for AWOL increases based on the length of absence and how the absence is terminated, whether through a voluntary surrender or by apprehension. Maximum punishments range from confinement for 1 month and forfeiture of 2/3 pay for 1 month to confinement for 18 months, dishonorable discharge, and forfeiture of all pay and allowances. The severity of punishment will depend on the specification charged and the circumstances surrounding the conduct.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 86, UCMJ – AWOL appeared first on Military Justice Attorneys.

Murder is one of the most serious charges a person–military or civilian–can face. While people often think that murder is limited to only premeditated killings, that’s not always the case in the military. So what are the different types of murder under the Uniform Code of Military Justice (UCMJ)? What are the possible punishments for each? And, most importantly, how do you defend against such a charge? Find out these answers, and more, below.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including murder. Contact one of our military defense lawyers today to learn more.

Article 118, UCMJ (Murder)

Any person subject to the UCMJ who, without justification or excuse, unlawfully kills a human being is guilty of murder.  There are four ways murder can occur under the UCMJ:

Premeditated Murder

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and
• That, at the time of the killing, the accused had a premeditated design to kill.

Intent to Kill or Inflict Great Bodily Harm

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and,
• That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

Act Inherently Dangerous to Another

• That a certain named or described person is dead;
• That the death resulted from the intentional act of the accused;
• That this act was inherently dangerous to another and showed a wanton disregard for human life; and,
• That the accused knew that death or great bodily harm was a probable consequence of the act; and,
• That the killing was unlawful.

During Certain Offenses

• That a certain named or described person is dead;
• That the death resulted from the act or omission of the accused;
• That the killing was unlawful; and,
• That, at the time of killing, the accused was engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Murder Explained

The difference between premeditated murder and unpremeditated murder comes down to intent.  Premeditation means that the thought of taking a life was “consciously conceived and the act or omission by which it was taken was intended.”  This requires that the person form a “specific intent to kill someone” and “consideration of the act intended.”  Premeditation does not necessarily mean that the murder was planned out long in advance—once a “fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution.”

Defenses

Rule for Court-Martial (R.C.M.) 916 provides defenses to murder.  These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.

Voluntary intoxication (either by drugs or alcohol) is not a defense but may be admitted to raise reasonable doubt about the existence of actual knowledge, specific intent, willfulness, or premeditation. Voluntary intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offenses.

An experienced military attorney will be able to evaluate your case to determine what defense may apply and what evidence is needed to support that defense. An accused’s abillity to raise a defense may be limited by the facts or law, or may become difficult to raise if the service member provides a statement to law enforcement during the investigation.

Maximum Punishment

The maximum sentence for premeditated murder or murder committed during certain other offenses is death.  Both charges carry a mandatory minimum sentence of imprisonment for life with the eligibility for parole.  The maximum sentence for unpremeditated murder under Article 118(2) or (3) is such punishment other than death as a court-martial may direct.

Pretrial Confinement

Service members suspected of murder are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including murder. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

Know Your Rights

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are some key rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Protect Your Freedom and Your Military Future

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, and will ensure that every avenue of defense is aggressively pursued on your behalf.  Contact MJA today on our website or call us at (843) 773-5501 for a free consultation.

The post Understanding Article 118, UCMJ – Murder appeared first on Military Justice Attorneys.

Many circumstances can trigger a service member’s discharge from the Armed Forces. While most of the time this will simply be the end of an enlistment contract, there are other situations where a service member’s military career is cut short due to allegations of misconduct or substandard performance of duty.

When this occurs, the military will often refer the case to an administrative separation board (or “chapter” board, as referred to in the Army) to determine whether separation from active duty is warranted and, if so, what characterization of service the military member will receive.

MJA has successfully defended service members facing investigation, administrative separation, and discipline for the most serious offenses under the UCMJ. Our experienced and aggressive attorneys know how to win and will aggressively fight for you. Call us today at (843) 773-5501 for a free consultation.

TYPE OF MILITARY SEPARATION BOARDS

There are a few types of military separation boards depending on the facts and circumstances of the service member in question. If you have been notified by your command that you are the subject of a separation or discharge board, the following should help you understand what to be prepared for:

• Board of Inquiry – A board of inquiry is often used as an alternative to a court-martial for officers who are faced with misconduct or other service related issues. A Board of Inquiry has other names, depending on the Service Branch, such as “Show Cause Hearing”, or Elimination Board. This type of Board may recommend an Other Than Honorable (OTH) Characterization of Service.   
• Administrative Separation Board / Chapter Board – Enlisted members recommended for involuntary discharge with an OTH are also entitled to an administrative separation board. At this hearing, the service member has the opportunity to argue their case against being discharged based on performance, misconduct, mental or physical ability, or other issues. The board may recommend an Other Than Honorable Characterization of Service.
• Withdrawal of Federal Recognition Board (WOFR) – Commissioned and warrant officers serving the Army National Guard may be subject to involuntarily administrative proceedings, similar to a Board of Inquiry, if the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition.
• Discharge Review Boards – Service members who have already been discharged or separated (not including a General Court-Martial punitive discharge) can appeal their separation decision to the Discharge Review Board, or a Military Correction Board.

An administrative separation board is extremely important as it is the service member’s last chance to stay in the military. Thankfully, service members don’t have to face this alone and can be represented by either a military or civilian attorney.

CONDUCT WARRANTING SEPARATION ACTIONS

Almost any type of misconduct or substandard performance of duty can trigger administrative separation processing. Administrative separation boards, however, are typically reserved for conduct which the commander believes warrants an OTH discharge or for service members with more than 6 years of creditable service.

Some of the most common grounds for involuntary separation of a service member include drug or alcohol abuse, sexual harassment, sexual assault, fraternization, failure to obey orders, substandard performance of duty, adultery, or a pattern of minor disciplinary infractions.

Both “serious” and “minor” offenses may be resolved at administrative separation hearings. A “serious offense” is any violation of the UCMJ (or a comparable civilian offense) for which a punitive discharge would be authorized under the UCMJ. “Serious offenses” not taken to court-martial are almost always resolved at administrative separation boards.

For administrative separation to occur for a “minor offense”, the government must often prove a pattern of misconduct consisting of two or more minor disciplinary actions. Your commander will determine what constitutes a minor disciplinary infraction. There needs to be a pattern of misconduct consisting of discreditable involvement with military authorities. Discreditable contact includes violations of the UCMJ, regulation or orders, State penal codes, and/or other military customs and traditions.

ADMINISTRATIVE SEPARATION BOARD PROCESS

If you have been told by your command you are being administratively separated, or are already in receipt of paperwork officially notifying you that administrative separation has been initiated, you need to understand what command action is likely to occur.  

The first and most critical issue is whether or not you are entitled to a board hearing. Service members are entitled to an administrative separation board hearing in two circumstances: (1) if the command is recommending an Other Than Honorable characterization of service; (2) if the service member has 6 or more years of creditable service.

In either of those instances, an administrative separation board must be convened to review the evidence from both the government and the defense. The hearing is an adversarial one, with opening and closing arguments, and cross examination of witnesses.

The board consists of three service members who are senior to the “respondent” (service member facing administrative separation). The board members must decide, by majority vote, whether the government has proven by a preponderance of the evidence that the respondent committed the misconduct.

If the board does substantiate the misconduct, they also need to decide, by the majority, to either separate or retain the service member. If the board votes to separate, then the board must decide the characterization of service (described below).

CHARACTERIZATION OF SERVICE

When you’re put under administrative separation, you’ll be notified in writing. In the written notice, you’ll learn the basis for your separation and the recommended characterization of service. The recommended characterization of service is important because it could potentially impact your ability to avail veterans’ benefits later on.

There are three different characterizations of service that a board can recommend:

• Honorable – An Honorable discharge is awarded when a military member meets the standards of acceptable conduct and performance of duty for military personnel. If the service member reaches the end of their enlistment period or contract there is a strong presumption that the service member served honorably.
• General (Under Honorable Conditions) – a general discharge is appropriate when significant negative aspects of the member’s conduct outweighs positive aspects of their military service. Service members awarded a general discharge are often not allowed to reenlist or enter a different branch of the military service, but may be entitled to certain VA medical benefits given that their service was under “honorable conditions.”
• Other Than Honorable (OTH) – an OTH discharge results from a pattern of behavior or acts that are a significant departure from conduct expected of military members. Service members who received an OTH should expect to lose some or all of their military benefits.

A veteran’s characterization of service is extremely important and has life-long consequences. A service member who receives anything less than a fully-honorable discharge should expect to experience substantial prejudice in the civilian world.

HOW AN EXPERIENCED ATTORNEY CAN HELP

Whenever appearing before any type of military separation board, you have a right to legal representation. Your attorney will dig deep into the command’s case against you to find weakness and unfounded arguments. An experienced military will conduct his/her own investigation to unearth evidence to support the defense theory of the case.  All potential evidence will be evaluated and witnesses called on your behalf at your board. Be sure to have any documents, photographs, or testimony that the command hasn’t included in their separation package, as it could help your case.

Our military separation defense lawyers will also ask hard questions during cross-examination of witnesses to expose facts and raise doubts about the allegations against you, as well as present your military record in a positive light. You should be prepared to make your own statement to the board to help avoid separation from service. You can use this time to set the record straight. Your lawyer will help you prepare before the hearing to present your facts in the most effective manner.

MJA KNOWS HOW TO WIN

Results matter. MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Our attorneys have successfully defended officers and enlisted members facing administrative separation. Here are just a few examples:

• • A Sergeant First Class (E-7) in the United States Army retained MJA to defend against multiple false allegations involving a junior Soldier. After refusing to accept Article 15 punishment, the Soldier was taken to a Chapter Board. During the Board, MJA effectively cross-examined the government’s witnesses, including the alleged victim, exposing numerous inconsistencies in their prior statements and a sinister motive to fabricate among the government witnesses. After 30 minutes of deliberation, the Board members unsubstantiated the allegations of sexual harassment and fraternization and recommended the Soldier’s retention in the United States Army. 
  • A Lieutenant Commander (O-4) in the United States Navy accused of sexual harassment and several other serious violations of the UCMJ hired MJA after being detached for cause (DFC) and offered NJP. The LCDR refused NJP and demanded trial by court-martial. After many delays and months of waiting, the Navy sent the officer to a BOI instead. MJA successfully defended the LCDR against all charges and allegations brought forward as the basis for the DFC and NJP. The BOI found “NO BASIS” for any of the alleged misconduct and retained the LCDR in the Navy. 
  • A Gunnery Sergeant (E-7) in the United States Marine Corps was notified of administrative separation after testing positive on a urinalysis. MJA was retained to defend the Marine. At the board hearing, MJA and detailed defense counsel admitted documentary evidence and testimony that the positive urinalysis was the result of an innocent ingestion. The Board found “NO BASIS” for the alleged drug abuse and retained the Marine on active duty. 
  • A Master Sergeant (E-7) in the United States Air Force was investigated for 15 months by the Air Force Office of Special Investigations (OSI), Family Advocacy Program (FAP), and Child Welfare Services (CWS) for false allegations of sexually assaulting a minor. After a week-long administrative discharge board with eight Government witnesses, the board members found “NO BASIS” for the alleged misconduct and retained the Master Sergeant on active duty.
  • A Specialist (E-4) in United States Army unjustly accused of abusive sexual contact and assault with intent to commit rape hired MJA after being targeted as the subject of a CID investigation. MJA advised and represented the SPC through the investigation and resultant command determination to forgo court-martial. After many delays and months of waiting, the Army sent the Soldier to an administrative separation board instead – an “easier” path for the Government to secure accountability given its lower standard of proof and ability to prosecute with hearsay alone. MJA successfully defended the SPC against all charges and allegations, resulting in the Board finding “NO BASIS” and voting to retain the SPC in the Army. 
  • A Lieutenant Commander (O-4) in the United States Navy was required to show cause for retention in the naval service for alleged misconduct and substandard performance of duty following a state-court conviction for Driving While Intoxicated. At the BOI, MJA submitted extensive written matters in defense and called multiple character witnesses who testified the LCDR should be retained on active duty. The BOI unsubstantiated the allegation of substandard performance of duty and retained the officer in the naval service. 

CONTACT MJA TODAY

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you.  We have successfully defended service members facing investigation, administrative separation, and discipline for the most serious offenses under the UCMJ and will aggressively fight for you. Call us today at (843) 773-5501 for a free consultation.

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The United States military has a zero-tolerance policy when it comes to illegal drugs. Under Article 112a of the Uniform Code of Military Justice (UCMJ), anyone who wrongfully possesses, uses, manufactures, imports, or distributes certain controlled substances can be court-martialed and face up to five years in prison, among other penalties.

What Is Article 112a?

Article 112a consists of seven elements related to controlled substances. They are:

• Possession
• Use
• Distribution
• Introduction into a military installation, vessel, vehicle, or aircraft
• Manufacturing
• Possession, manufacture, or introduction with intent to distribute
• Importation into and exportation from the United States

There are some similarities between Article 112a offenses and civilian drug charges. First, the substances involved should be controlled ones. Second, the actions involving the drug (use, possession, etc.) were wrongful under the circumstances. Thirdly, defendants accused of manufacturing, importing, exporting, and distributing controlled substances are punished more severely than users.

Maximum Penalties for Article 112a Violations

The maximum punishment for those convicted depends on the controlled substance involved, the amount at issue, and the activity or status of the servicemember when the illegal action(s) occurred. For example, any personnel convicted of wrongfully using, possessing, manufacturing, or introducing the following substances can be dishonorably discharged, forfeit all pay and allowances, and be imprisoned for up to two years:

• Marijuana (with use or possession, the amount must be under 30 grams)
• Phenobarbital
• Schedules IV and V drugs

When the following substances are involved, the penalties are dishonorable discharge, forfeiture of all pay and allowances, and imprisonment for up to five years:

• Marijuana (except use or possession of under 30 grams)
• Amphetamine
• LSD
• Cocaine
• Heroin
• Opium
• Methamphetamine
• Secobarbital
• Phencyclidine
• Schedules I, II, and III drugs

Five years will be added to the maximum term of confinement if, at the time of the alleged offense, the defendant was:

• On duty as a lookout or sentinel on board a military vessel or aircraft or at a missile launch facility
• Serving in time of war
• On duty in a military confinement facility
• Receiving special pay under 37 U.S.C. § 310

Simple cases of use or possession are handled via administrative action, such as nonjudicial punishment or a summary court-martial. More serious cases typically result in a special or general court-martial.

Protect Your Freedom and Your Military Future

In the U.S, military, having a gram of marijuana in your possession can be enough to destroy a promising future. Not only can you face military penalties that strip you of your healthcare and retirement benefits but, depending on the circumstances, you could also face felony charges in a civilian court.

If you or someone you know is facing Article 112a charges, contact the skilled and assertive team at Military Justice Attorneys. We have defended servicemen and women facing investigations, trials, and discipline for Article 112a offenses and will ensure that every avenue of defense is aggressively pursued on your favor. Call us today at (843) 773-5501 for a free consultation.

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