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FAQ

A: Perhaps. If a civilian heads military prosecutions for non-military specific offenses, we tend to believe that the number of courts-martial moving forward will decrease. However, we do not believe that allegations will decrease, and we highly suspect that those allegations will continue to be handled by military commanders in non-criminal, administrative actions. Those actions include administrative reprimands and elimination from the service through administrative separation packets and if required, by administrative separation boards / boards of inquiry. What is also troubling is that when sexual assault and domestic violence allegations are handled administratively, although the risks are lessened because there is no potential for jail time or sexual assault offender registration, the rights afforded to service members in administrative processes are substantially lessened. For instance, in cases we have handled that went an administrative route, even though we knew the Army CID file contained favorable evidence, the government is not required to hand over the entire file; they are only required to give what the commander based his decision to move forward with separation. And Army CID’s own regulation states that they may not release their file unless there has been a valid discovery request. Discovery requests are narrowly construed to mean a document that a defense counsel files in a criminal prosecution. Until these kinds of loopholes are resolved, members facing allegations of sexual assault and domestic violence will remain subject to the influence of their commanders, and the system remains deeply flawed.

A: Secretary of Defense, Lloyd Austin, announced on June 22, 2021, that he supports what is being called a seismic shift in the UCMJ that takes away commander’s control from both sexual assault cases and domestic violence cases in the military. He is the first Secretary of Defense to take this stance, despite a growing movement to create a civilian led prosecution office in the last decade. On May 6, 2021, the Army announced that their main military investigations body, Army Criminal Investigative Command (CID) will no longer be headed by a military General Officer. Instead, Army CID will be led by a civilian director. We predict that military prosecutions will soon be headed by a civilian figurehead as well.

Unfortunately, the short answer is that there may not be anything that anyone can do to
“correct” the issue or to remove the record. For more information, please read this
informative blog post.

If the command is aware of the DUI arrest, that is what’s known in most branches of service as a CCIR – commanders critical information requirement. In addition to reporting the event up the chain they would be required to report the arrest to the military law enforcement (NCIS, Army CID, Air Force OSI etc) who then runs a parallel investigation. The command must report back to the LE agency what action they took, if any. If you plead guilty (even a diversion or a deferred adjudication) the military rules recognize it as a conviction. Even the discussion to the military rule of evidence regarding impeachment by prior convictions lists deferred adjudications and diversions as qualifying convictions. The same language is in each of the service regulations and is used for an administrative separation for civilian conviction. If you have served for fewer than 6 years in service you would not be entitled to the basic due process of an administrative separation board and could be processed out of the service with a general under conditions discharge (and lose GI Bill, all veterans assistance with education benefits, and if ever later employed by a federal agency none of your time would translate as civil service retirement points) just on paperwork alone. Your only recourse facing administrative separation for the DUI would be to write a written rebuttal asking not to be separated, and those are rarely successful. With a general under honorable conditions discharge the VA will also deny care for PTSD or other service connected medical conditions. You can appeal it if he has prior honorable conditions discharges (if you served long enough to re-enlist) but those appeals require a great deal of time and money to attempt to overcome the denial.

It had been the case probably 10 or more years ago to avoid a military impact with a civilian DUI conviction, but the changes in policy and procedure since then have made that not the case.

The textbook answer is that a military accused does not have a right to a speedy investigation, meaning there is no official right to require the investigators to complete their investigation or for the command to make a decision about what to do, if anything, based off an investigation.  The other side of this issue is that investigations tend to drag on when there is not someone actively advocating for resolution. All cases are unique.

Whether or not CBD oil is legal for anyone, in or out of the military, is a very complicated issue. Anyone within the military will say no, that CBD oil use is not legal for military members. The biggest issue arises depending on how CBD oil use is being “charged” whether in nonjudicial punishment, court-martial, or administrative separation. Based on the language by the C.A.A.F. in U.S. v. Maj Pugh, there is an argument to be made that nonjudicial punishment, court-martial and / or administrative separation is not warranted, especially given the failure of military bases to warn against its use and the labels on the products themselves purporting to declare that CBD oil is “completely legal.” Because CBD oil does not compromise military drug testing procedures in that CBD does not contain sufficient THC to trigger a “hot” urinalysis, the government has a hard time articulating the impact on the mission. Every day we receive more and more calls across the nation from members and their families facing punishment or separation for CBD oil use.

Anyone already having suffered the fate described above or anyone pending nonjudicial punishment or court-martial for CBD oil usage or any product made with industrial hemp or hemp seed oil should seek learned counsel as soon as possible to make an informed decision about going forward. This is especially true if facing action for wrongful use of a controlled substance under Article 112a.

For more information, please see a recent blog post on the matter: https://ucmj-defender.com/cbd-oil-militarys-latest-target/

All cases are unique.

Yes. If the government determines that any of the specific unusual circumstance exists, they must provide notice of which circumstance or circumstances exist “…in writing, upon a determination that administrative separation should be effected because of the unusual circumstances of the case”.

AR 600-8-24, paragraph 4-4 d explains that when an Officer can be made to suffer through a second board of inquiry when there is or has been:

(1) A lack of proficiency or recurrent misconduct subsequent to the earlier consideration.

(2) Misconduct that occurred prior to that alleged in the earlier proceedings but that was not sooner discovered despite the exercise of due diligence.

(3) Substandard performance of duty within one year after the prior case has been closed.

(4) The findings and recommendations of the Board of Inquiry that considered the case are determined to have been obtained by fraud or collusion.

Yes. AR 600-8-24, paragraph 4-4 c explains that if any of the below exist, an Army Officer can be made to face administrative separation / board of inquiry for the same allegation twice:

(1) Substantial new evidence that has been discovered that was not known at the time of the original proceedings despite the exercise of due diligence and that would probably produce a result significantly less favorable for the officer at a new hearing.

(2) Subsequent conduct that warrants consideration of discharge.

(3) A determination that administrative separation should be effected because of the unusual circumstances of the case.

However, facing administrative separation / board of inquiry for the same allegation twice is not automatic. There are several notice requirements that must be met.

Maybe. Pursuant to AR 600-8-24, paragraph 4-4 b, with some limited exceptions, “no officer will be considered for elimination for reasons … because of conduct that has been the subject of administrative elimination proceedings that resulted in final determination that the officer should be retained in the Service.” In other words, in most cases an Army Officer that has already gone to a board should not have to go to another board for the same alleged underlying misconduct. This is true even if the board had been initiated for the underlying alleged misconduct and HRC later finds a referred officer evaluation review (OER) that references the derogatory information.

Our Practice Areas

Being a former service member herself and working exclusively on military cases, Ms. Stewart has amassed experience to help in the following areas of the UCMJ:

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