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Vulnerability for Military Justice

Traumatic brain injury from a savage attack. He will never be the same. In mid September 2019, my client was on a temporary duty and visited a nearby local watering hole with colleagues from work. They knew they had too much to drink so they decided to go for a walk; the plan was to stretch their legs before eventually calling for an Uber. They never got the chance. My client was walking ahead of the group, purposefully. He needed to find a place to relieve himself. He found one in a parking lot just off the trail. Two locals came at him from behind, struck him, attacked him, and he ended up in the bottom of an adjacent ravine. His colleagues caught up in time to see my client defending himself. In the dark and chaotic frenzy they did not see where he went. The locals began screaming about killing all of them, announced they were going to go get their firearms and return. They sped away. Calling his name, without any response. They finally find him lying unconscious. The locals give statements to the authorities; none of what they say makes sense. They are not even consistent in their accounts. Initially my client is charged by the state with assault. After digging in more, local prosecutors dismissed all charges. 

While decisions are being made by the state, my client has returned home. He is diagnosed with a traumatic brain injury. Like many in uniform, he is proud and does not want to divulge the extent of his suffering. Nightmares, crying for no apparent reason, and debilitating migraines. Everyday tasks he can no longer perform on his own. No real sense of when, if ever, these symptoms are now his reality.

Does the military accept the state’s prosecution? No. Of course not. At the end of March 2020, the commanding general issues him a reprimand for being drunk and disorderly and for assaulting the two locals, despite accounts of their threats to kill him, despite his being found unconscious and in a ravine, and despite the state court’s dismissal. 

We respond to the reprimand on April 3rd, and consistent with a business as usual attitude, merely 5 days after receiving our written submission the commanding general files the reprimand in his permanent file: a permanent mark on an otherwise pristine service record. Thank you, COVID-19 for increasing the government’s efficiency with regard to administrative reprimands…

Does it end there? No. Of course not. The commanding general causes him to be served with notice of elimination, a board of inquiry, the same day he is notified of his filing decision. 

None of this is a surprise; this is the same playbook we see over and over in defense of military servicemembers. I have prepared the client for this exact scenario. We are poised to elect the administrative separation board, but as is my custom, I submit a written response AND the election of the board (provided the written request to cancel the board is not successful). Do I typically expect the board to be cancelled? No. But I am helping to shape the narrative of my client’s truth. I am creating an exhibit the board members will read and receive as evidence.

I send my draft to the client, and through him I ask that his wife provide a letter describing his symptoms, speaking truth about the help she gives him, and how they have largely masked his deficits. They both question my tactics, he does not want to play a sympathy card, and his wife confesses she does not want to focus on wherein he remains not whole, and instead wants to highlight his adversity. I respectfully disagree. They trust my insight and vision.

On Wednesday, my client messages me to let me know that he is being summoned to his command. I assure him he will be receiving notification of the date, time, and place for his board. I have never been more pleased to be wrong. A few hours later, I hear back that the commanding general has cancelled his board of inquiry. He will be permitted to leave the service at the ordinary expiration of his obligation. Honorable discharge in tact. 

When I was at the three-week Trial Lawyers College, an inspiring woman I am grateful to have as my friend said to us “there is strength in vulnerability.” So amazingly true. I applaud this man for leaning into the curve and for embracing vulnerability. 

He may never be the same. And I wish for him that we could go back to mid-September to ensure he would never end up in the bottom of that ravine. But I am enormously grateful that he entrusted me with his defense, for allowing me to speak his courageous truth, and that his ability to rehabilitate remains in tact after he leaves the service.

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