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Blogs from February, 2021

  • MJA is proud to announce a recent victory on behalf of our client, a Corpsman in the United States Navy. The Corpsman was notified of nonjudicial punishment for allegedly violating Article 112a after failing a urinalysis. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription and had not wrongfully used amphetamines. MJA submitted extensive written matters on behalf of the Sailor demonstrating his innocence. Ignoring the evidence, the Command requested court-martial charges. MJA immediately worked with the Government prosecutor to not bring criminal charges and to refer the case to an administrative separation hearing. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career. Congratulations to this well-deserving client!

    MJA Can Help

    MJA has successfully represented service members charged with some of the most serious offenses under the UCMJ. If you are facing court-martial or other adverse action, it is absolutely critical that you have an experienced military justice attorney fighting on your behalf. Please contact us today for your free consultation.

    The post Adsep Board Finds “No Basis” After Positive Urinalysis appeared first on Military Justice Attorneys.

    Adsep Board Finds “No Basis” After Positive Urinalysis
  • There are few things more demoralizing to a service member than an involuntary administrative demotion. Administrative demotions are intended to be a force management tool to help commanders ensure a quality enlisted force and place service members at a rank commensurate with their skills and abilities. Unfortunately, administrative demotions are often misused to punish service members for alleged misconduct.

    Military Justice Attorneys understand the Air Force’s administrative demotion policy and can help you fight against unjust administrative demotion actions. Contact us today for your free consultation.


    Administrative demotions can result in the loss of one or more ranks and cause service members 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, Air Force commanders frequently use administrative demotions as a way to punish service members suspected of misconduct. This improper demotion not only deprives service members of important due process rights, but often results in multiple rank reductions—a severe punishment that is otherwise reserved only for courts-martial.


    Department of the Air Force Instruction (DAFI) 36-2502, Enlisted Airman Promotion/Demotion Programs, provides guidance and procedures on demoting enlisted Airmen. Within DAFI 36-2502, Chapter 6 governs administrative demotions of Regular Air Force (REGAF) Airmen; Chapter 9 governs administrative demotions for Air Force Reserve (AFR) Airmen; and Chapter 11 governs administrative demotions of Air National Guard (ANG) enlisted personnel.

    For administrative demotions of REGAF Airmen, a group commander, or equivalent level commander (e.g. senior Air Force officer in the grade of colonel), is empowered under DAFI 36-2502 to demote MSgts and below. While higher levels of command may also demote an airman, the group commander is the lowest level with demotion authority.

    The Major Command (MAJCOM) commander, Field Operating Agency (FOA) commander, and Direct Reporting Unit (DRU) commander may demote those in the grades of SMSgt and CMSgt, or delegate the authority to equivalent level commanders.

    Authorized commanders have broad discretion and can demote Airmen multiple grades—the equivalent of a special court-martial conviction. Airmen can be demoted as follows:

    • Demote a Senior Airman or higher (E-4 and above) no lower than Airman First Class (E-3) (with exceptions);
    • Demote an Airman First Class (E-3) no lower than Airman (E-2); and
    • Demote an Airman (E-2) to Airman Basic (E-1).

    Commanders can even demote an Airman by “three or more grades when no reasonable hope exists that the Airman will ever show the proficiency, leadership, or fitness that earned the initial promotion.” While any administrative demotion is a substantial punishment, it is staggering that the Air Force even allows the possibility of demotion by three or more grades.


    Administrative demotions of active-duty Airmen are intended to be a force management tool to help commanders ensure a quality enlisted force and place service members at a rank commensurate with their skills and abilities. Common examples of proper reasons to involuntarily demote an Airman include:

    • Student Status Termination (6.3.1.);
    • Demotion Based on Skill Levels (6.3.3.);
    • Failure to Fulfill Responsibilities (6.3.4.);
    • Failure to Keep Fit (6.3.5.);
    • Failure to Perform (6.3.6.);
    • Voluntary Reassignment or Reclassification (6.3.7.); and
    • If a member is promoted to SSgt, TSgt, or SMSgt with an approved EPME waiver and later is dismissed for cause or declines in residence PME (6.3.2.).

    DAFI 36-2502 states that reason for demotion must be supported by a preponderance of evidence to be used as a basis for demotion.

    Importantly, administrative demotions are not supposed to be used “when it is more appropriate to take actions specified by the Uniform Code Military Justice (UCMJ).” In fact, DAFI 36-2502 expressly forbids the practice: “Do not use administrative demotions when it is more appropriate to take actions specified by the Uniform Code of Military Justice.”

    Unfortunately, this is often the exact reason why demotion is used by Air Force commanders. MJA often hears of Airmen who are administratively demoted for allegedly driving while intoxicated (DWI)–a violation of the UCMJ. In most of these instances, the Airmen are never offered nonjudicial punishment under Article 15, UCMJ–which provides substantially more due process protections to the service member–and are never taken to trial by court-martial. Instead, they are simply stripped of rank through the demotion process.


    A service member has limited rights during the administrative demotion process. This begins with the Unit Commander notifying the Airman in writing of their intent to demote. The notification must cite to AFI36-2502, the demotion authority, the recommended grade for demotion, the specific reasons for demotion, and include a summary of the facts.

    Upon receiving the notification, the Airman can “concur” or “not concur” with the proposed demotion and submit written matters on their behalf. The Airman can also request a personal before the initiating commander. If eligible, the Airman can apply for retirement in lieu of a demotion, effective no later than the first day of the fourth month following the initial notification of demotion. The Airman must apply for retirement within 3 working days of receipt of demotion notification memorandum.

    Airmen are advised to seek legal counsel in making these determinations. Practically speaking, this is the Airman’s best opportunity to rebut and terminate the demotion action. If a persuasive rebuttal is received, a commander can immediately terminate the demotion process. The commander is only required to inform the Airman of what occurred.


    After being processed by the initiating commander, the demotion is presented to the “demotion authority” for action. The demotion authority can not only approve the recommendation but has the power to take additional grade reductions other than the initiation commander’s recommendation.

    However, an approved demotion decision can be appealed. Once informed of the grade to which he or she is demoted, an Airman can appeal the demotion to the appellate authority within 3 working days. The demotion authority can reverse the previous decision and restore the airman’s original grade, or forward the case to the appellate authority without comment. If the appellate authority approves the appeal, the appellate authority can direct that the Airman’s previous grade be restored and the demotion orders revoked.


    Unfortunately, administrative demotions are often used as a tool to pressure retirement eligible Airmen to submit for retirement. Under DAFI36-2502, an Airman eligible to retire may elect to apply for “retirement in-lieu-of demotion.” When an Airman applies for retirement in-lieu-of demotion, all demotion action stops until the authorities act on the retirement application. If retirement is approved, then the demotion process terminates. If the retirement application is disapproved, then the demotion process continues. The effective date of retirement will be no later than the 1st day of the 4th month after initial notification of the demotion action. Retirement applications are processed in compliance with AFI 36-3203.


    The Air Force’s use of administrative demotions is a devastating tool which can result in the loss of multiple grades—the equivalent of a special court-martial punishment. Unfortunately, this process is often misused to punish Airmen for alleged misconduct, thereby depriving them of important due process rights at nonjudicial punishment or court-martial. Airmen facing demotion can fight demotion through effective rebuttals and appeals.


    Military Justice Attorneys understand the Air Force’s administrative demotion policy and can help you fight against unjust administrative demotion actions. If you are facing administrative demotion, contact one of our military defense lawyers today to learn more about your rights.

    The post Administrative Demotions: The Air Force’s Dirty Little Secret appeared first on Military Justice Attorneys.

    Administrative Demotions: The Air Force’s Dirty Little Secret
  • With the COVID-19 vaccination now here, the Department of Defense has begun distributing the vaccine to military installations worldwide. But some military service members may still be skeptical about taking the vaccine due to concerns about its safety or effectiveness. These concerns raise the obvious question—can a service member be required to take the COVID-19 vaccine? And, if so, what are the consequences of refusing to obey such an order?

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


    Mandatory vaccinations in the military are almost a rite of passage. It’s like getting your wisdom teeth pulled at boot camp by the brand-new Naval dentist or being ordered to participate in an all-hands urinalysis after a long period of liberty—it’s inevitable.

    While the Pentagon has said that service members are not currently required to take the Coronavirus vaccine, the Department of Defense has indicated that the voluntariness of immunizations could change at a later date.

    But would a mandatory COVID-19 vaccination order be lawful?

    To be lawful under the UCMJ, a military order must: (1) have a valid military purpose; and (2) be clear, specific, and narrowly drawn. Further, military orders cannot conflict with a service member’s statutory or constitutional rights and must be a “specific mandate to do or not to do a specific act.” MCM, Part IV, 14c(2)(a)(iv) and (d)). Military orders are presumed to be lawful and are “disobeyed at the peril of the subordinate.” Id. at ¶ 16.c.(2)(a)(i).

    To sustain the presumption of lawfulness, “the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service.” Id. at ¶ 14c(2)(a)(iii).


    The primary justification for mandatory vaccinations is the need for military readiness. After all, service members must be physically, mentally, and medically ready, at all times, to deploy worldwide to fight and win our nation’s battles.

    Military courts have historically upheld the mandatory vaccination of service members as lawful. In recent memory, service members have been ordered to receive vaccines against smallpox and anthrax to increase the deployment readiness of the force. Service members who refused to take the vaccines were criminally prosecuted.

    In United States v. Schwartz, 61 M.J. 567 (N-M. Ct. Crim. App. 2005), a Lance Corporal in the United States Marine Corps was ordered to receive an anthrax vaccine. He refused and was convicted at court-martial of violating Article 92, UCMJ. On appeal, the Navy-Marine Court of Criminal Appeals found that the mandatory vaccination order was lawful and did not violate the Marine’s Constitutional rights. That Court stated that, even assuming the Marine had a limited right to refuse medical treatment, “it would not ‘trump’ an otherwise lawful order.”


    Department of Defense policy allows for the accommodation of individual expressions of sincerely held religious beliefs, as long as those beliefs do not adversely impact military readiness, unit cohesion, good order and discipline, or health and safety.

    Under Department of Defense Instruction (DoDI) 1300.17, Religious Liberty in the Military Services, religious accommodations can be made for religious apparel, grooming, and even certain medical practices (like DNA specimen sampling or immunizations).

    Such religious accommodations must, however, be requested and approved prior to a service member not complying with a military requirement. Unless a service member has explicitly been granted a religious accommodation, the MCM is clear that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” MCM, Part IV, ¶ 14c(2)(a)(iii)).


    A service member may also be eligible for a medical or administrative exemption. Medical exemptions may be granted for any medical contraindication relevant to a specific vaccine and can be temporary or permanent. For example, a service member may be granted a medical exemption based on an underlying heath condition, if they have preexisting immunity, or if their “clinical case is not readily definable.” Medical exemptions can be revoked when they are no longer clinically warranted.

    Administrative exemptions may also allow a service member to avoid taking a vaccine. For example, service members who are within 180 days before separation or retirement may be exempt from deployment (mobility) immunizations if: (a) they are not currently assigned, deployed, or scheduled to perform duties in an area where an immunization is indicated; or (b) if the commander has not directed immunization because of overriding mission requirements. Service members who desire immunization exemption must identify themselves to their commander and follow the procedures outlined in the applicable service regulation or instruction: available here.


    The lawfulness of a vaccination order may be attacked if it does not have a valid military purpose, is not clear, specific, and narrowly drawn, or violates a service member’s statutory or Constitutional rights. To be punishable under the UCMJ, a lawful order (if not a punitive general order or regulation) must also be communicated to the service member.

    Articles 90 and 91, UCMJ, require that a service member have “actual knowledge” of an order before they can be found guilty of violating it. Actual knowledge is not required to prove a violation of a general order or regulation under Article 92, UCMJ.

    A service member may also raise the defense of “duress” if a vaccination order is unlawful. The defense of “duress” exists when: (1) a service member’s participation in an offense was caused by a reasonable apprehension that they or another innocent person would be immediately killed or suffer serious bodily injury if the accused did not commit the offense; (2) that such apprehension continued throughout the commission of the offense; and (3) that they could not avoid committing the offense without subjecting themselves or another to the harm threatened.

    In United States v. Washington (57 M.J. 394, C.A.A.F. 2002), an Airman was convicted at special court-martial of violating Article 90, UCMJ, after refusing to receive an anthrax vaccination based on concerns about the vaccine’s safety and effectiveness. On appeal, the United States Court of Appeals for the Armed Forces held that the defense of duress was not applicable because the threat did not emanate from the unlawful act of another person.


    Service members who unlawfully refuse to take an approved vaccine can be subject to trial by court-martial, administrative separation, or other adverse administrative actions. A violation of Article 90, UCMJ (willful disobedience of a superior commissioned officer), not in time of war, has a maximum punishment of five years in confinement and a dishonorable discharge. A violation of Article 92, UCMJ (failure to obey a general order or regulation), can result in two years confinement and a dishonorable discharge.


    An order from a superior commissioned officer to take the COVID-19 vaccination is likely to be considered a lawful military order, and service members who disobey such orders do so at their own peril. Further, the defense of “duress” is likely not to apply. Service members should not refuse to take a mandated vaccination without first speaking with an experienced military attorney and understanding their rights.


    If you are concerned about the lawfulness of a mandatory vaccination or any military order, contact one of our military defense lawyers today to learn more about your rights.

    The post Can Service Members be Required to Take a COVID-19 Vaccine? appeared first on Military Justice Attorneys.

    Can Service Members be Required to Take a COVID-19 Vaccine?