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.
Please remember that you may and should choose to remain silent and speak with a lawyer even if your leadership is asking questions that seem focused on trying to determine what is going on. It is important to know when you can even be asked about potential misconduct.
In the military, a rights warning is required if you are suspected of wrongdoing, with limited exceptions. This is different than the civilian world where the police only have to read you your rights after you are in custody and being interrogated. . Congress provided this additional protection for Servicemembers in Article 31(b), UCMJ. Here is what the law says:
(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.
(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
Put simply, military law enforcement or leadership must read you your Article 31(b) rights if they want to talk to you about any suspected wrongdoing. Many leaders may unintentionally violate this rule. For example, your commander may say, “Hey, heard your name mentioned by legal, what’s going on?” You must know your rights and respectfully say, “Sir/Ma’am, I have been told by a lawyer not to talk about any of this.” This will help you and keep the military for misusing or misconstruing your statement.
No. The “120-day” rule applies to the processing of a case after it has already been formally charged. The formal charging under the U.C.M.J. is known as preferral and occurs when an Officer formally swears either a commander or another person in the JAG office to the allegations and those charges appear on DD Form 458 with or without a continuation sheet. On the day of preferral, the 120-day clock starts and signifies that arraignment must occur (the first formal appearance with a military judge) within 120 days of the day of preferral; keep in mind that any requests for delay from the defense do not count against that 120 days. This requirement is the mechanism to ensure the service member’s right to a speedy trial. The “120-day” rule does not start from the date of the alleged incident. There is no recognized right to speedy preferral, though in rare circumstances, a due process violation is lodged if failing to bring charges in a timely manner and evidence is lost as a result of that delay. Also, lengthy delay in bringing some charges can mean that the offenses can no longer be brought to trial at all because of the statute of limitations. A statute of limitations is the deadline within which an offense must be charged or else it can never be brought. For most offenses, the statute of limitations is 5 years; there is no statute of limitations for murder. In changes to the U.C.M.J., the statue of limitations for sexual assault allegations, even if they arise off a military installation, has been extended and for some sexual offenses, there is no time limit when they can be brought.
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:
When faced with the decision of hiring a UCMJ specialist, Ms. Stewart’s former clients explain all that is necessary about her commitment to their case and her expertise in handling the toughest legal battles. Learn more about her unique abilities in the words of her clients, peers, and military judges.