Blogs from 2024

Retaliation is a natural human desire when someone has hurt you. In the military, however, retaliation is not just morally wrong but constitutes a violation of the UCMJ when it wrongfully, intentionally, and adversely impacts the career of a protected service member. A service member convicted of retaliation can not only lose his or her military career but can receive substantial punishments to include a punitive discharge and years of confinement.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Background and Intent Behind Article 132, UCMJ

Article 132, UCMJ, criminalizes service members from retaliating against another person for reporting a criminal offense or making a protected communication, or from discouraging any person to report a crime or make a protected communication. Retaliation occurs when a person wrongfully takes or threatens to take adverse personnel action against the other person or wrongfully withholds favorable personnel action, like an award or favorable assignment.

A violation of Article 132, UCMJ, “may be committed by any person subject to the UCMJ with the authority to initiate, forward, recommend, decide, or otherwise act on a favorable or adverse personnel action who takes such action wrongfully and with the requisite specific intent.” Article 132, UCMJ, does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers.”

The offense of retaliation has become even more serious in recent years that it is now considered a “covered offense” under the UCMJ and will be reviewed by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for retaliation need to have the very best legal defense representation.

Retaliation – Threatening or Withholding Personnel Actions

Article 132, UCMJ, prohibits two general categories of misconduct: (1) retaliation; and (2) discouraging a service member from reporting a criminal offense or making a protected communication.

To be guilty of retaliation, the government must prove two elements:

1. That the accused wrongfully took or threatened to take an adverse personnel actionagainst any person, or withheld or threatened to withhold a favorable personnel action with respect to any person; and

2. That, at the time of the action, the accused intended to retaliate against any person for reporting or planning to report a criminal offense, or for making or planning to make a protected communication.

Let’s break down the important definitions from those elements.

First, in order to be a violation of Article 132, the government must prove that an accused took adverse personnel action against or withheld favorable personnel action from another person. Under the offense, “personnel action” simply refers to any action taken on a service member that affects, or has the potential to affect, their “current position or career, including promotion; disciplinary or other corrective action; transfer or reassignment; performance evaluations; decisions concerning pay, benefits, awards, or training; relief and removal; separation; discharge; referral for mental health evaluations;” among other actions.

Next—and this is extremely important—there must be evidence that the accused intentionally retaliated against the other person due to their decision to report a crime or make a protected communication. Under Article 132, a personnel action is taken with the “intent to retaliate” when it is done “for the purpose of reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.” There are often lawful reasons why personnel actions are taken or withheld other than retaliation.

Discouraging a Report of Criminal Offense or Protected Communication

Article 132 also prohibits a service member from discouraging another person to report a criminal offense or making a protected communication. The difference between this offense and retaliation is timing. Before a report or protected communication is made, it’s a crime to discourage that communication. After a report or protected communication is made, it’s a crime to retaliate against the service member who submitted the complaint.

To be guilty of discouraging a report of criminal offense or protected communication, the government must prove:

1. That the accused wrongfully took or threatened to take an adverse personnel action against any person, or withheld or threatened to withhold a favorable personnel action with respect to any person; and

2. That, at the time of the action, the accused intended to discourage any person from reporting a criminal offense or making a protected communication.

Many of the same definitions as above apply to this offense. The key difference is that, under this offense, the accused was trying to discourage a person from reporting a crime and making a protected communication.

But what even is a protected communication?

Under Article 138, UCMJ, a protected communication can mean:

(A) A lawful communication to a Member of Congress or an Inspector General.

(B) A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of:

(i) A violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination;

(ii) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Defenses to Allegations of Reprisal

Defense under Article 132 can be highly fact specific. However, it is always a defense to a charge of retaliation for an accused to show that the personnel action was a lawful and appropriate exercise of command authority to discipline or reward a service member. After all, just because someone didn’t receive an award or is facing adverse action does not mean there is a violation of the UCMJ.

Evidence of a lack of intent to retaliate or discourage can also be a defense as specific intent is a required element of either charge. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for violating Article 132 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

Retaliation is considered a Category 2 offense under the Manual for Courts-Martial’s sentencing guidelines and therefore requires a sentence of 1-36 months of confinement for any conviction.

Protect Your Freedom and Military Career

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, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.

From the jilted ex-lover, to the stranger leering at the attractive new neighbor, to the maniac with road-rage or the violent sociopath that turns an online date into a romantic obsession, Hollywood is well-known for its psychological thrillers and “stalker” movies. While Hollywood movies are certainly over the top and often unrealistic, stalking is a serious offense under the UCMJ that can not only end a service member’s career but result in significant punishments.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Background and Intent Behind Article 130, UCMJ

Article 130 criminalizes service members from engaging in any course of conduct that would cause another person to reasonably fear death or bodily harm. Unlike in the movies, however, stalking doesn’t simply mean following a person around. Prohibited behavior can include any type of conduct that induces reasonable fear in another person and can include the use of surveillance, emails, texts or other electronic communications.

The offense of stalking has become even more serious given that it is now considered a “covered offense” under the UCMJ and will be reviewed by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for stalking need to have the very best legal defense representation.

Elements of Article 130, UCMJ

To be guilty of violating Article 130, UCMJ, the Government must prove three elements:

1. That the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner;

2. That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner; and

3. That the accused’s conduct induced reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner.

Let’s break down the important definitions from those elements.

Definitions and Explanation

First, in order to be a violation of Article 130, the government must prove that an accused engaged in a “course of conduct directed at a specific person.” Stalking is not a one-time incident where another person feels uncomfortable, but rather a series of repeated (two or more) actions, comments, threats (express or implied, written or verbal), or pattern of conduct directed at a specific person. Prohibited behavior can include any type of conduct including the use of surveillance, emails, texts or other electronic communications.

It’s important to note that the person who is the subject of the stalking does NOT have to be another service member. Rather, stalking can also be committed if the conduct is directed against the person’s immediate family (e.g. spouse, parent, brother or sister, child, etc) or against “any other person living in his or her household and related to him or her by blood or marriage.”

The subject of the stalking may also be the person’s “intimate partner” which can include a former spouse, a person who shares a child in common with the specific person, a person who lives with the person, or someone who is in a romantic relationship with the person.

Next, an accused’s course of conduct must cause a reasonable person to fear death or bodily harm. This is one of the most important elements of stalking because it requires the jury to determine if the alleged fear was reasonable. If it was NOT reasonable for the person to fear death or bodily harm, then there is no violation of Article 130, UCMJ. Keep in mind, however, that “bodily harm” is a very broad term and is defined as “offensive touching of another, however slight, including sexual assault.” If the person reasonably feared that would be touched, even slightly, then that element of the offense is met.

Finally, in order for there to be a violation of Article 130, the government must prove that the accused knew, or should have had known, that the specific person would be placed in reasonable fear of death or bodily harm. To prove “should have known,” the government must establish that the circumstances were such as would have caused a reasonable person in the same or similar circumstances to know that the alleged victim would be placed in reasonable fear of death or bodily harm to themselves or another due to the accused’s course of conduct. This determination must be based on all relevant facts and circumstances.

Defenses

Any defense under Article 130 is highly fact specific. A stalking charge may be defeated if the defense can show that the accused did not engage in a “course of conduct,” that the alleged victim did not have a reasonable fear of death or bodily injury, or that the accused did not have (and should not have had) knowledge that his or her actions would place another person in fear of death or injury. This “mens rea” or knowledge requirement is particularly important for the defense. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for violating Article 130 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. Stalking is considered a Category 2 offense under the Manual for Courts-Martial’s new sentencing guidelines and therefore requires a sentence of 1-36 months of confinement for any conviction.

Protect Your Freedom and Military Career

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, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.

Commissioned and warrant officers serving the Army National Guard can be subject to withdrawal of Federal recognition (WOFR) proceedings when there is “sufficient evidence” of misconduct, substandard duty performance, or other concerns or conditions that warrant separation processing. Eligible officers are entitled to a “Board of Officers” who will recommend their retention in or separation from the National Guard.

Military Justice Attorneys (MJA) has successfully represented countless military officers facing court-martial, administrative separation, or other adverse action. If you have been notified of WOFR proceedings and want to fight for your career, contact us today for your free consultation.

LEGAL AUTHORITY

Title 32, United States Code Section 323 provides that the “capacity and general fitness of an officer of the National Guard for continued Federal recognition may be investigated at any time by an efficiency board composed of commissioned officers.”

National Guard Regulation (NGR) 635-100, Termination of Appointment and Withdrawal of Federal Recognition, and NGR 635-101, Efficiency and Physical Fitness Boards, implement 32 USC § 323 and sets forth the criteria and procedures governing WOFR proceedings.

REASONS TO WITHDRAW FEDERAL RECOGNITION

WOFR proceedings may be initiated against any officer who demonstrates substandard performance of duty or conduct, character deficiencies, fails to meet medical standards, or is otherwise unsuited for military service. Possible bases for separation include:

Substandard Performance of Duty. An officer’s duty performance is substandard and requires the withdrawal of Federal recognition when there is: (a) a downward trend in overall performance resulting in unacceptable inefficiency or mediocre service; (b) a failure to exercise necessary leadership or command; (c) lack of technical proficiency; (d) failure to meet standards for student officers; (e) failure to discharge assignments; or (f) apathy, defective attitude, or another character disorder the renders the officer unfit.

Moral or Professional Dereliction. An officer may be separated for moral or professional dereliction as a result of personal failures. Examples include unjustified failure to meet personal financial obligations, mismanagement of personal affairs that discredit the Army National Guard, intentional omissions or misstatement of facts in official records, acts of personal misconduct, conduct unbecoming an officer, and criminal convictions, among other conduct.

National Security Concerns. An officer may also require the withdrawal of Federal recognition when his/her conduct is “not clearly consistent with the interests of national security.”

Medical, physical or mental condition. Officers with medical, physical or mental conditions which prevent them from performing their military duties must have their Federal recognition withdrawn. A determination of an officer’s fitness is case specific analysis. The regulation explains that an official may be unfit for service from the overall effect of two or more impairments even though the impairments individually would not cause unfitness.

INITIATION AND PROCESSING OF WOFR PROCEEDINGS

A WOFR proceeding can be initiated by any commander in the officer’s chain of command, the State Adjutant General, the Chief, National Guard Bureau, or the Chief of Staff, U.S. Army. Recommendations from the chain-of-command and other endorsing authorities are forwarded to the Army area commander for review and action.

The area commander has a few options after receiving the recommendations. The commander can disapprove the recommendation and close the case, return the case and for additional evidence, or direct an AR 15-6 investigation into the allegations. If the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition, the commander will notify the officer that he or she is required to show cause for retention.

An officer who receives such a notification also has a few options. The officer may submit a resignation in lieu of withdrawal of Federal recognition, may elect appearance before a board of officers—this is an in-person board hearing (discussed more below), or may elect transfer to the Retired Reserve if eligible.

Officers must be given at least 10 days after being notified of elimination to submit a resignation in lieu of further processing. Resignation must be submitted through command channels to the appropriate State Adjutant General. Officers have the right to submit a resignation at any time before final action on a board proceeding. An officer can withdraw his or her resignation at any time prior to final acceptance.

The commander must meet certain requirements before initiating a demotion action for inefficiency. Specifically, the commander must have evidence that Soldier was counseled, and that rehabilitation was attempted and there must be a formal record of substandard performance during the period concerned. The evidence must establish a pattern of inefficiency rather than a single-time failure by the Soldier.

BOARDS OF OFFICERS HEARING

A “Boards of Officers” hearing provides respondents with the greatest due process rights, entitling them to an attorney and a fair and impartial hearing to contest the allegations against them. This includes the right to:

• Appear in person before the board;
• Receive copies of the records that will be submitted to the board;
• Submit statements on his/her on behalf;
• Be represented by military or civilian counsel;
• Be allowed a reasonable time to prepare his/her own case.

The most important of these rights is, of course, the right to counsel. An experienced, dedicated, and talented attorney is often the difference between an officer being retained or separated.

The importance of having a great attorney is magnified by the fact that the burden of proof lies with the officer. To be retained in the military, the officer must “produce convincing evidence that his Federal recognition should not be withdrawn. In the absence of such a showing by the officer, the board must recommend withdrawal of Federal recognition.”

A Boards of Officers will be composed of at least four commissioned officers, with an equal number from the Regular Army and the Army National Guard. All voting members are typically senior to the respondent. At least one board member must be female if the officer facing elimination is female. Similarly, a medical officer is required when an officer’s physical fitness is a basis for the WOFR proceeding.

The job of the board members is to hear all the evidence and reach findings and recommendations. Board findings must be supported by substantial evidence. The board’s recommendation will be limited to retention or withdrawal of Federal recognition.

In accordance with NGR 635-101, officers may only be separated upon the approved recommendations of a board of officers unless he or she submit a resignation in lieu of proceeding, has less than 3 years commissioned service and fails to meet standards of service school, or is an officer with 20 or more years of qualifying Federal service and is being considered for separation because of substandard performance of duty.

MJA HAS A PROVEN TRACK RECORD OF SUCCESS

MJA has successfully represented countless military officers facing court-martial, administrative separation, or other adverse action. Here are a few examples:

• A Captain (O-3) in the Army National Guard was directed to show cause for retention at a Withdrawal of Federal Recognition proceeding stemming from serious and publicly broadcast allegations. MJA successfully litigated allegations of assault/battery by conducting its own in-depth investigation and by preparing a sound legal defense that included a presentation of key witness testimony as well as irrefutable video and documentary evidence. The Board unanimously voted to retain the officer to continue his military career.
• A Captain (0-6) in the United States Navy was ordered to show cause at a Board of Inquiry (BOI) following his detachment for cause (DFC). MJA worked closely with detailed military counsel to provide the members of the BOI with a full and more fair accounting of the events leading up to the DFC. The board voted unanimously to find no basis for any of the three allegations of substandard performance of duty. The 0-6 was retained on active duty and is excited for the opportunity to continue to serve.
• An Army Chief Warrant Officer (CWO) sought help from MJA to fight a GOMOR and threats of elimination from the Army. MJA guided the CWO in gathering statements and other evidence to support the formal response submitted on his behalf. MJA then engaged with the command leadership and the CWO to ensure he had the full support of his chain of command and other mentors within his professional community. With MJA’s help, the CWO received formal notification of retention in the Army and was later selected for promotion to the next rank.
• 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 and offered NJP. MJA advised the LCDR to refuse the NJP and demand a court-martial. After many delays and months of waiting, the Navy sent the officer to a BOI instead of court. MJA successfully defended the LCDR against all allegations brought forward as the basis for the DFC and offer of NJP. The BOI found NO BASIS for any of the alleged misconduct and retained the LCDR in the Navy.

CONTACT MJA TODAY

If you are an Army National Guard Officer facing withdrawal of Federal recognition, you are not alone! MJA has a long track record of helping officers just like you fight and win unjust separation actions. If you have been notified of WOFR proceedings and want to fight for your career, contact us today for your free consultation.

Our firm is often contacted by people who are curious about lawsuits against government contracting companies in Iraq, Afghanistan, Somalia, and other conflict regions to which the United States sends its military.

While class action lawsuits are sometimes brought against government contracting companies alleging wrongful conduct, many of the “lawsuits” that contractors hear about are actually workers’ compensation claims against contracting companies that support the U.S. Government overseas.

The Defense Base Act Provides Coverage to U.S. Agencies

The Defense Base Act is a federal law that requires companies supporting United States agencies abroad to maintain worker’s compensation insurance for their employees in the event of a work-related injury. Many U.S. contractors and foreign nationals working in support of U.S. agencies have Defense Base Act Coverage for their past and present employment periods without even knowing it.

One important difference between a workers’ compensation claim and a class action lawsuit is that proof of wrongdoing against the defendant must be provided in a class action lawsuit, as well as a proven connection between the injury and causation. On the other hand, for a workers’ compensation claim, if an employee’s injury arises from the course of their employment, the employer is required to provide workers’ compensation benefits in the form of medical treatment, wage loss pay, and vocational rehabilitation assistance, even if the employer didn’t do anything wrong.

Private Companies That Provide Support to the U.S. Military

When the United States sends its military into high-conflict regions around the world, it relies heavily on the private sector and local population for logistical support, security, construction, building maintenance, food services, etc. Not every activity related to the U.S. military presence in an area requires the action of an active-duty soldier, marine, or sailor, after all. The military delegates many of its responsibilities in an area to the private sector.

Hundreds of companies often work with the U.S. Government through contracted work, such as:

• Valiant Integrated Services
• Amentum
• SOC LLC
• Constellis
• Triple Canopy
• Raytheon
• Global Linguist Solutions
• Aegis Security
• SOSi
• KBR
• Olive Group
• New Future Company

Attacks Target Soldiers & Contractors Alike

United States military bases in high-threat areas often become targets of attacks by terrorists and insurgent groups in the area, especially in countries like Iraq and Afghanistan. In some areas of these countries, insurgents are known to fire mortars and rockets at U.S. military installations on a daily basis. Local militias threaten members of the local population and their families because of the contractors’ affiliation and assistance to the United States, too.

Local nationals who work with the U.S. Government often suffer these persistent symptoms and more:

• Difficulty falling and staying asleep
• Nightmares
• Severe mood swings and anger outbursts
• Stress
• Long-term fear and anxiety
• Self-isolation from family and friends
• Discomfort in crowded or loud places

Many local national workers believe these symptoms will go away as soon as they are removed from the hostile area, but for many, they don’t. Active-duty military service members have the Department of Veterans Affairs (VA) to help with injuries after they complete their service, but military contractors have Defense Base Act (DBA) insurance to help with their injuries.

Employees Can Get Benefits if Their Employer Is No Longer in Business

Many contractors that supported the U.S. Military in Iraq and Afghanistan can still access their DBA benefits even though their employer has gone out of business or merged with another company. Employers are ultimately responsible for providing workers’ compensation benefits to their employees, but they can also meet this burden by purchasing an insurance policy and contracting with a third-party insurance carrier to cover and represent them. In the case of the Defense Base Act insurance, the purchase of a policy is mandated by the United States Government where the work is being paid for by U.S. Government agencies for certain types of contracts.

Furthermore, when a company enters into a merger, the liabilities of the company being dissolved are often absorbed by the purchasing company. Many of the contracting companies from 15 or so years ago have been purchased and sold many times. Identifying the company successor-in-interest for an employer that a contractor worked for so long ago, and then identifying which insurance company they purchased their Defense Base Act policy from, can be daunting and seemingly impossible—without the right resources and support.

At Military Justice Attorneys, we have highly experienced attorneys who have successfully handled such complex cases, time and again. Even if there is no successor in interest, the insurance policy likely still lives on and provides benefits for latent injuries arising from a contracted worker’s employment, so the benefits should still be out there. We know where to look, what questions to ask, which paperwork to file, and so on.

DBA Benefits Are Not a Government Handout

Are you apprehensive about applying for Defense Base Act benefits because you mistakenly believe workers’ compensation is a government handout? While it is true that the U.S. Government does indirectly pay for the policy, the worker’s compensation insurance is provided by a private company that receives substantial pay in exchange for a promise to provide these benefits to contractors in the event they suffer injuries that arise from completing contracted work overseas or abroad. The insurance company has already been paid for its insurance products and services, so applying for the benefits is not a handout—it is just asking for what you are already owed!

Do I Qualify for DBA Benefits?

Thousands of contractors are discovering that their difficulties in maintaining personal relationships, anxiety, depression, and other symptoms are the result of a psychological injury that arose from their work as contractors in support of the United States abroad. With the Defense Base Act, many could qualify for various benefits, such as wage loss compensation, medical treatment, and vocational rehabilitation if their injuries preclude them from continuing their career as an overseas contractor and they need additional education to enter a new field in their country of residence. Many others can obtain settlements so they can have more control over which benefit providers they want to see, and when they want to see them.

Many local nationals were never even told these benefits were available to them, though, and some even passed away without ever seeing a dime from the insurance companies. If that happens, a claim might be brought by a surviving heir or loved one. In some cases, an injury claim can even be filed decades after the injury was first suffered.

Do I Need an Attorney to File a Claim?

Lawsuits and workers’ comp claims are complex. The responsible employer, date of loss, the type of injury, calculation of lost wages, etc. may all seem like simple matters, but the fact is that they are often not. In this area of the law, the court has crafted complicated rules for identifying the responsible employer in occupational injury cases, such as a claim for cumulative psychological injury like PTSD. In an occupational injury case, for example, the employer that last exposed you to the working conditions that could have caused or aggravated the type of injury claimed is the responsible employer to file against; it may still be a later employer that is legally responsible to provide benefits for your injury.

Filing a claim against the wrong employer for an occupational injury claim or workers’ compensation claim for Defense Base Act benefits can cause years of delay and endless frustrations. To save yourself time, energy, and resources, you should already be thinking about hiring experienced legal counsel who knows the rules to stand up for you.

Retain the Services of an Experienced Attorney at No Cost to You

For any linguist, security, or labor contractor who worked in hostile areas in support of U.S. forces, it’s worth seeing what benefits may be available. At Military Justice Attorneys, we can help local national and U.S. resident/citizen contractors who supported U.S. Military forces abroad get evaluated for latent injuries and file claims against the contractors’ workers’ compensation insurance policies. We proudly offer our services to such contractors at no cost to them, so more people can reach out to us for the legal guidance and representation they deserve.

Call Military Justice Attorneys if you have any questions about Defense Base Act claims or workplace injury lawsuits filed for injured contractors, local national workers, and others who have worked in the service of the United States Government while abroad or overseas. Dial (843) 773-5501 or contact us online to ask about our legal counsel that is made available at no cost to you.

Where the United States Military goes, so does a large amount of funding to support military bases and embassies, to repair infrastructure after a conflict, and generally to execute United States’ missions abroad. Much of this funding goes to pay local nationals for their services to the United States agencies in providing contracted security, construction, general labor, and linguist support.

If you or a loved one were injured while working as a contractor in support of the United States, contact MJA today to see if you qualify for benefits and coverage under the Defense Base Act.

The DBA Coverage for Qualifying SIV Holders and Refugees

The Defense Base Act is a federal law that requires companies that support United States agencies abroad maintain worker’s compensation insurance for their employees in the event of a work-related injury. Many U.S. contractors and foreign nationals working in support of U.S. agencies have Defense Base Act Coverage for their past and present employment periods without even knowing it.

Even Non-United States citizens (citizens of Iraq, Afghanistan, Somalia, Jordan, Qatar, Kuwait, or other nations) may be eligible for benefits related to a work-related injury, if the injury resulted from work as a contractor in support of the United States Government.

Many local national contractors come to the United States on a Special Immigration Visa (SIV) because their lives were threatened due to their affiliation with the United States, while working as a contractor. Additionally, many contractors experience rocket and mortar attacks on U.S. Bases, Suicide bombers, Snipers, Risk of Kidnapping, Improvised Explosive Devices (IEDs). This extreme, constant, and long-term stress due to the life-threatening nature of the work performed and work environment can cause a psychological injury, for which financial and medical benefits are available.

Risks & Injuries to Local Nationals in Supporting the United States

The local national employees that support the United States abroad do so at great risk to themselves and their families. Often, they become targets of hostile attacks from insurgent and terrorist activities because of their affiliation with U.S. forces. Insurgents regularly attack U.S. Military installations in locations where the U.S. Military has ongoing operations, and these risks don’t stop at the end of the workday for local nationals. Many local nationals and their families are targeted, injured, killed, or threatened, requiring them to flee to the United States to seek refuge by applying for a Special Immigration Visa (SIV). Many refugees are often forced to quit their jobs because of the risks and injuries associated with their support to the U.S. Government.

You May Not Know That You Have Defense Base Act Coverage

Many local nationals who have contracted with private companies to support military bases and rebuild host nations are unaware that they could qualify for workers’ compensation insurance during that work, much like the typical worker in the United States. The U.S. Government mandates and pays for workers’ compensation insurance that would provide wage loss protection and medical benefits to local nationals in the event they become injured because of their employment in support of the United States’ operations in the host nation. Many local national employees believe the United States has exploited them and then abandoned them in a time of need, but this is not the case.

Although most companies are required to post information regarding workers’ compensation benefits in common workspaces for their employees to see, most contracting companies that provide services to the U.S. Government abroad are unable to do so. In many cases, contracting companies that support U.S. bases aren’t providing services in their own buildings, so there’s no simple place to post that information. They are hiring people and tasking them to work alongside military or civilians who work directly for the United States Government in government-provided buildings that aren’t controlled by the contracting companies. While contractors sent overseas from the United States receive “pre-deployment” training and briefings that inform them of the Defense Base Act benefits available if they get injured, the local nationals do not receive these briefs.

Defense Base Act Insurance for Injured Contracted Local Nationals

Defense Base Act insurance helps injured local national workers who were contracted by the U.S. Government in a way similar to workers’ compensation insurance that is available to many American workers. Most local national contractors that support U.S. agencies abroad are covered by Defense Base Act insurance. In the event a worker suffers an injury that arises from their employment and prohibits continued employment, the Defense Base Act insurance can provide replacement income during the time they are unable to earn the same level of income. It also provides any and all reasonable and necessary medical treatment until they reach maximum medical improvement.

There is no time bar or statute of limitations to medical benefits for injuries suffered while working as a contractor in support of the United States. In many cases, local nationals and SIV holders can also be entitled to financial compensation or vocational rehabilitation (new career training) under their former employer’s Defense Base Act workers’ compensation insurance policy.

Work for Contracting Companies Can Qualify for DBA Benefits

While the United States pays contracting companies to do the work, private companies hire local national employees and/or other host-nation-based companies to do the work for them. The United States works with many such security, construction, general labor, and logistics companies abroad, including:

• Global Linguist Solutions
• Valiant
• Atlas Advisors
• New Future Company
• SOSI
• SOC, LLC
• Worldwide Language Solutions
• Shee Atika Languages
• KBR
• And hundreds more

Even if you worked for local Iraqi or Afghan companies, if those companies were providing ongoing services to the benefit of the United States, U.S. military bases, or U.S. embassies in the construction, security, linguist, or general labor sectors, then there was probably Defense Base Act (DBA) coverage through an American “prime” contracting company. Military contractors who work for private companies in support of U.S. forces in foreign countries are often exposed to countless traumatic events that cause lasting symptoms that could entitle the contractor to medical treatment benefits, financial support, or a settlement at no cost to the contractor.

Benefits Not Limited by Passage of Time, Nationality, or Residency

Certain Defense Base Act benefits are available to certain local national employees, regardless of nationality, country of residence, or passage of time following employment. Such benefits are available to all government contractors that supported United States-funded contracts in hostile areas, even if former employees had to take refuge in another country, or still live in the host nation in which the United States operated.

Occupational Injuries May Take Years to Discover

Many local nationals may not even know they have a psychological injury related to their contracted work because some injuries a “latent” and are not easily recognizable. Many may know they have certain symptoms but believe that their symptoms will go away with time, only to find out years later that they have suffered a psychological injury. Even if an occupational injury takes years to discover, it does not automatically bar an eligible worker from using the Defense Base Act to seek workers’ compensation benefits.

Psychological Injuries from Working in a Hostile Area

Many believe that having a psychological injury means they are weak or broken, but this has never been the case. The human body adapts to its environment to enhance survivability. In a war zone, the unsafe body and mind subconsciously adapt to a dangerous environment in new ways, such as waking up suddenly at a small noise, always being on high alert, or hesitating to trust people. The longer someone remains in a dangerous environment, the more difficult it will be for them to shed their adaptations when they return to a safe environment like home. Such adaptations are oftentimes the symptoms of a psychological injury that can make a return to work, school, and family life challenging.

There are methods and treatments available to address the psychological traumas that can afflict local national workers who worked in dangerous environments. Depression, anxiety, adjustment disorder, and post-traumatic stress disorder (PTSD) can all be identified through psychological evaluations and treated with therapies, medication, and more.

Workers’ compensation insurance through the Defense Base Act considers more than just physical injuries. In many cases, local national workers can qualify after suffering a psychological injury related to their work as contractors in support of the U.S. Government, which provides them with medical treatment and lost wages, sometimes up to thousands of dollars per month in compensation.

You may have a psychological injury and be eligible for Defense Base Act insurance if you are:

• Having difficulty sleeping, nightmares, or waking after only a few hours of sleep;
• Startling from sudden noses that do not bother others around you;
• Having angry outbursts with family and friends over relatively small matters;
• Having difficulty maintaining personal or social relationships;
• Suffering from frequent headaches or migraines;
• Experiencing paranoid thoughts or negative self-views;
• Feeling persistently bothered by a feeling of impending doom;
• Experiencing flashbacks or unwanted memories of events experienced as a contractor; and/or,
• Avoiding certain people, places, or activities to prevent a flashback or similar symptoms of post-traumatic stress disorder (PTSD).

Filing for Defense Base Act Insurance Benefits

Military Justice Attorneys proudly offers our legal services to local nationals who want to see if they can use Defense Base Act insurance to cover medical bills and lost wages after they were hurt while completing contracted work for the U.S. Government. We work at no cost to local national SIV holders or refugees, so our legal counsel remains available to more people who need it. Defense Base Act insurance benefits are available to eligible local national employees/workers, regardless of nationality, country of residence, or passage of time following employment, so it is always worth exploring your options with our help if you need these benefits.

If you worked as a contractor outside of the United States, and you want to know more about these valuable Defense Base Act Benefits, Military Justice Attorneys wants to hear from you. Call (843) 773-5501 and ask to speak with one of our attorneys. During a free consultation, you can find out if you are eligible for benefits, as well as what to do next if you are.

Promotions in the United States Army are earned, not given, and are often the product of years of hard work and dedication. Given the sacrifices it takes to get promoted, there are few things more demoralizing to a service member than being involuntarily demoted.

While administrative demotions are intended to be a force management tool to ensure a quality enlisted force, such demotions are often used to punish Soldiers for alleged misconduct when there is insufficient evidence for court-martial or after the Soldier refuses Article 15 punishment.

Military Justice Attorneys (MJA) proudly defends the rights of Soldiers facing court-martial, separation, or other adverse actions, including administrative demotions. Call us today for a free consultation. 

When Administrative Demotions Are Misused

Administrative demotions can result in the loss of rank and cause Soldiers to lose thousands of dollars in pay and allowances, not to mention severely damaging their military career and retirement. While administrative demotions are supposed to occur only in rare circumstances, the Army has recently begun threatening to administratively demote Soldiers who lawfully refuse nonjudicial punishment under Article 15, UCMJ. This use of the Army’s involuntary demotion program deprives service members of important due process rights and can result in the reduction of multiple ranks—a severe punishment typically reserved for court-martial.

Demotion Authority in the Army

Army Regulation (AR) 600-8-19, Enlisted Promotions and Demotion, sets forth the Army’s policy regarding the voluntary and involuntary demotion of enlisted Soldiers not resulting from a sentence at court-martial or Article 15 punishment. Under this regulation, commanders at multiple levels have the authority to demote Soldiers with various ranks, from Private to Sergeant Major.

The following table, found in AR 600-8-19, shows which commanders have demotion authority based on the Soldier’s rank:

Not even retirement-eligible Soldiers are safe from involuntary demotion. Paragraph 7-3 of AR 600-8-19 states that the SECARMY or his designee “can demote an enlisted Soldier who has completed 20 or more years of Federal service creditable toward retirement, and is pending administrative separation for misconduct, before approval of the Soldier’s retirement.”

Regardless of who the demotion authority is, Commanders have broad discretion and can even demote Soldiers multiple grades—the equivalent of a special court-martial punishment. Soldiers demoted multiple ranks may be entitled to a demotion board.

Reasons to Demote a Soldier

Administrative demotions of active-duty Soldiers are primarily intended to be a force management tool to place Soldiers at a rank commensurate with their skills and abilities.

Common reasons for demotion in rank include:

• Misconduct (para 7-3)
• Civil Convictions (para 7-3)
• Inefficiency (para 7-5)
• Approved for Discharge (para 7-15)
• Failure to Complete Training (para 7-16)
• Unsatisfactory Participation (para 7-17)
• Voluntary Demotion (para 7-18)
• Return from Active Duty (para 7-19)
• Other Reasons for Demotion (para 7-20)

Apart from demotion at discharge, two of the most common reasons for involuntary demotions are misconduct and inefficiency.

What is a Demotion for Inefficiency?

In addition to misconduct, Soldiers may also be demoted for “inefficiency” under paragraph 7-5 of AR 600-8-19 if they are unable to perform the duties and responsibilities commensurate with their rank and MOS. Under the regulation, “inefficiency must be predicated on a pattern of acts, conduct or negligence that clearly shows the Soldier lacks the abilities and qualities normally required and expected of the Soldier’s rank and experience.”

In determining whether a Soldier is inefficient, a Commander can consider allegations of misconduct. Soldiers may also be administratively demoted under this paragraph if they have “longstanding unpaid personal debts that they have not made a reasonable attempt to pay.” Administrative demotion for inefficiency is typically limited to Sergeants and above and to one grade unless a demotion board is convened.

The Commander must meet certain requirements before initiating a demotion action for inefficiency. Specifically, the Commander must have evidence that the Soldier was counseled, and that rehabilitation was attempted and there must be a formal record of substandard performance during the period concerned. The evidence must establish a pattern of inefficiency rather than a single-time failure by the Soldier.

Soldier’s Rights When Facing Demotion

A service member has certain limited rights during the administrative demotion process. This begins with the Commander notifying the Soldier in writing of their intent to demote.

This notification of intent to demote must include:

• The allegations for the proposed demotion;
• The impact demotion would have on continued military service;
• That SECARMY or another designee has determined that the Soldier committed misconduct in a specified grade;
• That the Soldier could be demoted to any grade equal to or higher than the last grade satisfactorily served; and,
• That the Soldier may consult with military or civilian counsel.

Upon receiving the notification, the Soldier has the right to seek military or civilian counsel. Either alone or with legal counsel – the latter is recommended – the Soldier can submit written matters to rebut the allegations of misconduct and explain why a rank reduction should not be approved. With a persuasive rebuttal, a Commander can terminate the demotion process or limit any potential demotion to one rank.

Soldiers are not given much time to respond to the notification of intent to demote, though. Usually, Soldiers serving on active duty under Article 10 must have at least 10 duty days to respond, while all other Soldiers are given no fewer than 30 calendar days to respond. Time can move quickly while serving in the U.S. Military, so any Soldier who is facing a potential demotion should speak with an attorney as soon as possible.

What is a Demotion Board?

When under review for a potential demotion, certain Soldiers, but not all Soldiers, may be entitled to a hearing before a demotion board. Paragraph 7-3.a.(6) of AR 600-8-19, paragraph 7-1, provides that a “demotion board is mandatory for Soldiers in the rank of CPL and/or SPC when they are administratively demoted more than one grade and for all NCOs (SGT through SGM) when administratively demoted for misconduct or inefficiency.”

When required, demotion boards are typically convened within 30 days after written notice to demote is given to the Soldier. The demotion authority may extend the 30-duty day limitation for good cause. The Soldier is entitled to be represented by an attorney at the hearing, military and/or civilian, and must be given adequate time to prepare their case.

A demotion board hearing is similar to a chapter board hearing and is composed of a three-member panel of officers and enlisted personnel who are senior in grade to the Soldier being demoted. At the end of the hearing, the board may recommend demotion, retention, or reassignment of rank.

During the board hearing, the Soldier or their attorney can do the following to argue their position:

• Call witnesses.
• Present written evidence.
• Present a statement on their own behalf.

Appealing a Demotion

Paragraph 7-3.a.(6) of AR 600-8-19 states that any demotion for misconduct “is final and may not be appealed.” Despite this general language prohibiting appeals, other portions of AR 600-8-19 provide Soldiers with the ability to appeal a demotion.

AR 600-8-19, paragraph 7-11, provides that demotion appeals are “authorized but only to correct an erroneous demotion.” For example, the demotion action did not comply with the rule and had an insufficient basis. Additionally, Soldiers can appeal a demotion for inefficiency or misconduct “to correct an erroneous demotion on equitable grounds.” A determination of whether the Soldier is entitled to restoration of rank is based on the totality of the facts and circumstances for that particular case.

If an appeal is authorized, the Soldier must submit it in writing within 30 duty days from the demotion date or the date of the memorandum notifying the Soldier that they will be restored to a former rank. USAR TPU Soldiers have 30 calendar days to appeal; ARNG Traditional Force Soldiers have 60 calendar days. Soldiers should consult with an attorney and confirm with their command the specific date that any appeal is due.

For Soldiers in the rank of Staff Sergeant and below, the next higher authority above the demotion authority takes final action on any appeals. Appeals for Soldiers in the rank of Sergeant First Class through Sergeant Major are reviewed by the first General Officer in the chain of command. Review authority must direct restoration of rank if the demotion was “erroneous.”

Demotion Defense from a Veteran Court-Martial Lawyer

The Army’s use of administrative demotions is a devastating tool that can result in the loss of multiple grades—the equivalent of a special court-martial punishment. When this process is misused to punish Soldiers and deprive them of important due process rights, it’s only right for those Soldiers to stand up and challenge the demotion through rebuttals and appeals.

Military Justice Attorneys (MJA) proudly defends the rights of Soldiers facing court-martial, separation, or other adverse actions. If you are facing administrative demotion, our military defense lawyers can tell you more about your rights and options, which could include appealing the demotion or arguing against it before a demotion board.

Call us today at (843) 773-5501 for your free consultation.

On 28 July 2023, President Biden signed Executive Order (EO) 14103 implementing significant amendments to the Manual for Courts-Martial (MCM).[1] These changes include the creation of a new Office of Special Trial Counsel (OSTC) and reforms to the court-martial sentencing system to promote uniformity and fairness in sentencing across the military.

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Given recent changes to the UCMJ, service members facing criminal prosecution need, more than ever, to be represented by an experienced attorney. If you or a loved one is under investigation or facing court-martial, contact us today for a free consultation.

HISTORIC CHANGES TO THE MANUAL FOR COURTS-MARTIAL

On 28 July 2023, President Biden signed Executive Order (EO) 14103 implementing significant amendments to the Manual for Courts-Martial (MCM). These changes, described by the White House as representing the “most significant transformation of the military justice system since the UCMJ was established in 1950,” are extensive.

The amendments reflect updates to the MCM regarding the Office of Special Trial Counsel (OSTC), randomization of member panels, military judge alone sentencing, sentencing parameters and criteria, and modification of the appellate review process. This article addresses some of the most important changes that service members should be aware of.

ESTABLISHING THE OFFICES OF SPECIAL TRIAL COUNSEL (OSTC)

Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military lawyers responsible for the expert and independent prosecution of serious criminal offenses under the UCMJ. The OSTC is independent from the military chain of command of the accused and has the exclusive authority to determine whether a “covered” offense should be prosecuted. “Covered offenses” include:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

Creation of the OSTC is the most historic and significant change to the MCM in decades because it essentially replaces the role of the commanding officer with that of an independent prosecutor. Historically, a service member’s commanding officer alone had the authority to dispose of allegations of misconduct and “convene” a court-martial. Under the new system, it is the OSTC—not the commanding officer—who has the “exclusive authority” to determine whether a reported offense is a covered offense and whether it will be prosecuted.

In addition prosecuting covered offenses, the OSTC may also exercise authority over: (1) any offense the OSTC determines to be related to a covered offense (related offense); (2) any other offense alleged to have been committed by the same person accused of committing a covered offense (known offense); and (3) any covered offense committed before 28 December 2023 except those noted by an asterisk below. The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date.

Creation of the OSTC is both good and bad for service members facing criminal prosecution. On one hand, creation of the OSTC is good because it should mean that weak and spurious allegations are not referred to court-martial. All too often in the past, service members find themselves at court-martial for allegations that are obviously not supported by convincing evidence and where there is low likelihood of conviction. The OSTC will hopefully exercise its discretion for good to prevent unnecessary criminal prosecutions.

The downside for service members, however, is that courts-martial that do take place will be based on solid evidence and will be prosecuted by the most experienced military attorneys, thereby increasing the likelihood of convictions. Additionally, since the commander is not the person deciding whether or not to refer charges, a service members’ reputation and career will not really be considered by charging authorities. Given these changes, it is absolutely essential for service members facing court-martial to have the very best legal defense representation.

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Given recent changes to the UCMJ, service members facing criminal prosecution need, more than ever, to be represented by an experienced attorney. If you or a loved one is under investigation or facing court-martial, contact us today for a free consultation.

SENTENCING BY MILITARY JUDGE ALONE

The Manual for Courts-Martial was also amended to include significant sentencing reforms that will directly impact service members convicted at court-martial. One of the most important of these changes requires sentencing by military judge alone for all non-capital offenses.

Section 539E of the FY22 NDAA provides that, except for capital offenses, if an accused is convicted of an offense in a trial by general or special court-martial, “the military judge shall sentence the accused.” This is a massive change to military sentencing and will most certainly hurt service members who are convicted at court-martial.

Historically, one of the most important rights at court-martial for an accused was the right to elect sentencing by members. Jurors are selected to be fair and impartial, come from diverse backgrounds, and are allowed to debate and vote on the most appropriate sentence for an accused based on the convictions, the totality of the facts and circumstances surrounding the case, and the evidence in extenuation and mitigations. Consequently, members (juries) are generally best situated to issue an appropriate sentence.

Military judges, on the other hand, offer a less fair option. Many military judges are known for being overly friendly to the prosecution and see it as their responsibility to “max out” service members convicted under the UCMJ. Even the most fair and honest military judge receives an evaluation report from his or her boss and will most certainly feel pressure to award certain types of sentences. Additionally, unlike a jury where there are multiple opinions and perspectives, a military judge will be awarding sentences based on his or her individual notions of fairness.

Sentencing by military judge alone applies to cases in which all findings of guilty are for offenses that occurred after 27 December 2023.

CREATION OF SENTENCING PARAMETERS FOR CONFINEMENT

Section 539E of the FY22 NDAA also created “sentencing parameters” or ranges within which a military judge must sentence a convicted service member. Under the new law, the military judge “shall sentence the accused . . . within the applicable parameters,” unless an exception applies. A military judge may impose a sentence outside of the sentencing parameters only upon finding specific facts that warrant a deviation from the predetermined guidelines.

The MCM created multiple new charts classifying all UCMJ punitive articles into offense categories (1-6) and creating recommended ranges of confinement for each category.