Competency and Capacity for Military Justice

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Maybe this will be shocking coming from a civilian practitioner who earns her living from military members opting to hire civilian counsel, but… not all cases require a civilian defense counsel. Yes. “I said what I said.”

I was speaking recently with a senior officer who is facing elimination. He has served for 18 years and 2 + months. His only offense was a DUI from more than two years ago. He self-reported the event to his command who he updated at each juncture. They knew about the event, and they (rightly) allowed him to rebound from.

Then there was a change of command. You see where this is going? The issue resurfaced, but not because this senior officer committed any additional misconduct. In fact, the opposite was true: his service was impeccable and rife with accomplishments that literally had saved lives and prolonged others.

New command does not know this man, so he was made to respond to a notice of misconduct. His was humble and forthright. This lower level chain of command supported him in trying to avoid the firing action called a board of inquiry.

Next level of command? Not so much.

He called, presumably to engage me for this next phase. It is entirely likely that he was a bit taken aback when I suggested that perhaps he should wait and see how it went with detailed counsel. I believe he appreciated my candor.

In this life, I am confident that honesty and integrity comes back to us. Maybe even two-fold.

During our conversation, my only caution was that he be vigilant as to competency (duh) AND capacity.

Competency should be fairly clear; in case it is not, I only mean that the uniformed counsel detailed to his case is competent in the rules, procedures, and can advocate to a certain level of competence. Competency is a component of experience.

Capacity means the ability to take on the matter with appropriate level of dedication. That begins with not being assigned to so many cases that the uniformed counsel lacks the time and resources to give individual dedication. In other words, what other cases may be taking priority, if any?

During our talk about capacity, I also cautioned him ensuring that uniformed counsel does not waste a chance at advocacy. Often uniformed counsels do not take the extra step to respond by separate memo to the notification of administrative show cause / separation / elimination. Simply checking the blocks on the Election of Right is not enough, in my estimation.

Opportunity lost in advocating is a waste.

A day later, this client called back to report the powers that be would not detail him an assigned counsel until after the board date had been set, and that they “don’t do” response matters. They would only, for now, assist him with his election of rights.

And there we are. Competency AND capacity.

Make sure the attorney undertaking your representation has both.

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