If you are on active duty, there are numerous issues that can call for the assistance of an attorney. The most significant situations usually concern charges brought by a command under the Uniform Code of Military Justice (UCMJ). Commanders often choose to “prefer” charges against a soldier, sailor, airman or marine and, in certain circumstances, those or other charges are “referred” by a commander for a court martial. Those charges most likely come from of the punitive articles listed in the UCMJ. An attorney can play a vital role in the defense of a case even before charges are preferred by a command.
Is There Any Protection Under Military Law Against Cruelty and Maltreatment?
Quite often an individual's perception of a simple assault can be quite misleading. In respect to military law, there are three areas addressed by this offence. These are by offer, by attempt, or by battery. By having a basic understanding of these three areas, individuals might think twice before acting out and landing themselves into trouble.
By Offer: If an individual thinks that something that someone is doing, or not doing, is going to mean having some type of force applied against him, then this is an assault by offer. This holds true only if the person is led to believe this by the intention or negligence of the other person. In order for the offense to have been committed it does not mean that the act suspected by the individual is even carried out. In this case, it is definitely the thought that counts.
So really, what constitutes leading one to believe that they are going to be physically harmed? To begin with, the actions leading one to believe they are in harm's way do not have to be factual. For example, if one person points an unloaded gun at another, and the person the gun is being pointed at was under the belief that the gun was loaded, then the person with the gun has committed assault even if he was only joking.
If the victim really knows that no harm is intended then this is not assault by offer. The victim's perspective that he really is being threatened with harm must be a reasonable perception.
Assault by attempt: Threatening words or threats of harm being eminent in the future are not considered assault. There has to be something to lead one to believe that they are going to suffer bodily harm. For example, if someone was to strike out at a victim, but they were not within distance of contact, it would still be assault because the potential to inflict harm was there. One would think that based on this, if an individual were to fire a pistol over another person's head, the shooter would be charged. If there was no intent to cause harm then this would not be the case.
Assault by Battery: The most commonly understood aspect of assault is that where force or violence is carried out by one party on another. It goes further than that, though. Even offensive touching can be presumed as an assault. For example, kissing someone that did not give their permission. There have even been examples of unnecessary exposure to radiation being classed as sufficient physical touching.
Sometimes knowing a little about the law can be more detrimental than knowing nothing at all. Many individuals who thought they knew what assault was had no idea that when charged with an offense, the act they carried out came under such an area of the law as assault.
When Unauthorized Absence Or AWOL May Not Be a Crime According to Military Law
If charges are brought before a court martial panel, the service member faces a daunting task. Having the right attorney representing the service member is critical.
If convicted at court martial, a panel can consider a number of options for punishment. If the panel decides to separate the service member from the armed forces, a service member can receive 1 of 5 possible types of discharge: Honorable, Under Honorable Conditions (often called a “General Discharge”), Under Other than Honorable Conditions, Bad-Conduct Discharge, or Dishonorable Discharge. The last 2 of this list, Bad-Conduct Discharge, or Dishonorable Discharge, can only be given after a conviction at court martial. Whether a service member will retain various benefits, including VA benefits, his/her Montgomery GI bill, or even his/her retirement, hinges greatly on the characterization of discharge.
Another form of discharge is uncharacterized. An uncharacterized “Entry Level Separation” typically is granted in situations when a service member is in his/her first 180 days in the service and is not adjusting well to the military lifestyle.
An alternative to bringing a service member to court martial is bringing the service member before an administrative board. There are many boards in the various service branches. Some are convened to determine whether the service member has committed misconduct sufficient to be separated (essentially fired) from the service branch. Other boards are convened to determine whether an injury is severe enough to prohibit continued service by a service member. Officers who are suspected of misconduct might be brought before a board of officers or a board of inquiry. Experienced representation before administrative boards is critical to a service member’s success or failure.
Reservists often times encounter as many legal issues as their active duty brethren. Many times a reservist receives orders activating the service member to duty. The orders may have been issued erroneously. However, disregarding those orders can create its own set of issues. Alternatively, some reservists find that reporting for active duty may cause a devastating impact on their families and civilian lives. Consulting with the right, experienced attorney is important in determining what a service member’s rights and obligations are.
Some reservists encounter issues with their civilian bosses before leaving for an activation or deployment or when they return from one. Federal laws such as the Uniformed Services Employment and Reemployment Rights Act (USERRA) help protect service members who face these problems. Our lawyers help navigate these difficult issues. A service member has enough to think about when deployment orders are issued – this should not be one of them.
Many veterans and ex-service members attempt to correct their military records. However, the process can be confusing and paralyzing. We can help you prepare your application before the Army Board of Correction of Military Records (ABCMR), Air Force Board of Correction of Military Records (AFBCMR), and the Board of Correction of Naval Records (BCNR).
There are times when unforeseen circumstances can prohibit a military member from returning to duty after a stint of authorized leave. Here are a few situations where a member would probably not be found guilty of unauthorized absence:
Physically disabled: If a circumstance arose where a member was advised to remain in bed for health reasons, which meant he was unable to return to duty, then most probably he would be found to be physically incapacitated. If, on the other hand, the cause of illness was found to be self-induced, so that the member didn't have to return, then it could be a whole different story.
There was case law where a member went AWOL to obtain dental treatment through civilian means. The reason the member did this was because there had been a difference of opinion concerning the required medical treatment, and the member went untreated. This was not accepted as a defense for physical incapacity.
Transportation misfortunes: There may be unfortunate circumstances that prevent a member from returning to duty, but the circumstances are very rigid. It has to be a pretty good excuse to get one off the hook in this circumstance.
For example, a member was returning to duty from a weekend pass when his car broke down. The member decided to stay with the car while it was being repaired. As a result it put him in an unauthorized absence position. He was not able to use the defense of "no fault," and was found to have stayed with his vehicle for his own convenience.
Acts of God: To the surprise of many, this is often not an acceptable defense. For example, if there were some type of warning that a storm, earthquake, or some other natural disaster were pending for the near future and the member had the opportunity to return to duty before disaster struck, they could be found guilty of the offence of unauthorized leave if they were then delayed due to the event.
Unauthorized leave due to civilian confinement: This is a very complex area of the law pertaining to a member who is confined and therefore unable to return to duty. The outcome would be based on the circumstances of the civilian findings.
These are just a few basic examples that make the point that nothing should ever be taken for granted when it comes to military law. Obtain legal advice as quickly as possible in the face of any charges, no matter how small they seem.