- UCMJ ART. 86 UNAUTHORIZED ABSENCE June 05 2015, 0 Comments

UNAUTHORIZED ABSENCE (UA)

Unauthorized absence is one of the most common violations under the UCMJ.

Article 86 provides:

Any member of the armed forces who, without authority:

(1)  fails to go to his appointed place of duty at the time prescribed;

(2)  goes from that place; or

(3)  absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct.

Circumstance can aggravate a UA offense and make it more serious.

Unauthorized absence under Art. 86 is an instantaneous offense.  However, the accused must have actual knowledge, or must have known of the time and place of duty to be guilty of a violation.

 

If you are facing NJP or Courts-martial for an Article 86 offense, having legal representation on your side that is knowledgeable and willing to fight for you is the key to potentially saving your military career.  Do not hesitate to contact the team of lawyers at Strazza & Roughneen.

 

- APPEALS OF SECURITY CLEARANCE REVOCATION September 29 2014, 0 Comments

WHAT OPTION DO THOSE WHO HAVE A SECURITY CLEARANCE REVOKED OR DENIED HAVE TO REGAIN OR ATTAIN A CLEARANCE?

An individual whose security clearance has been denied or revoked by a central adjudication facility has the opportunity to appeal the decision. The process for doing so differs between military and civilian personnel and contractors. Executive Order 12968, "Access to Classified Information," prescribes the process for military and civilian personnel. Executive Order 10865, "Safeguarding Classified Information Within Industry," outlines the process for contractors.

 

For contractor personnel, the denial, revocation and appeal process is the responsibility of the Defense Office of Hearings and Appeals (DOHA). The individual may request a hearing before a DOHA administrative judge in order to provide additional, relevant information and will have the opportunity to cross-examine witnesses. Upon completion of the hearing, the administrative judge will render a decision. If the decision is to deny or revoke the security clearance, the individual has the opportunity to appeal the decision to the Appeal Board. The Appeal Board will review the case file and render its decision. This decision is final and concludes the appeal process.

 

At the conclusion of the appeal process, an individual whose security clearance has been denied or revoked may not reapply for a security clearance for one year from the date of the final decision. The individual may reapply for a security clearance through his or her employing activity if there is a need for access to classified information. The individual is responsible for providing documentation that the circumstances or conditions which resulted in the denial or revocation have been rectified or sufficiently mitigated to warrant reconsideration. The central adjudication facility may accept or reject the reapplication.

- The MANUAL FOR COURTS MARTIAL - NOTICE AND THE IMPACT ON THE ACCUSED September 05 2014, 0 Comments

The Manual for Courts-Martial’s notice provision is clearly intended to give the accused an adequate opportunity to assess available options, ultimately leading to a decision to demand trial by court-martial or proceed under the nonjudicial punishment authority.  Part V, MCM, para. 4, V-2 to V-3 (2012).  The notice provision’s importance is highlighted by the impact on available rights to an accused who must decide on trial by court-martial or NJP proceedings.  Choosing to be subject to NJP authority,an accused procedural rights are less extensive than they would he if he/she elects to be subject to court-martial in which additional constitutional safeguards attach.  See Middendorf v. Henry, 425 U.S. 25 (1976).  In accordance with having to make this decision, the accused, prior to the NJP hearing, has the right to inspect all physical or documentary evidence the NJP authority “examined in connection with the case and on which the nonjudicial punishment authority intends to rely on in deciding whether and how much nonjudicial punishment to impose.”  Part V, MCM, para. 4(a)(1)(D), V-3 (2012), see also Sobczak v. United States, No. 09-189C, (C.C. 2010). 

In order to be in compliance with the statute and the MCM, the accused's Commanding Officer is required to provide to him/her all evidence in which he relied upon to make his decision to impose NJP.  Part V, MCM, para. 4a(3) and 4c(1)(D), V-3 (2012).    This noncompliance is not only a violation of the accused's rights, but also it creates doubt concerning the observance of the requirement that the accused, at his/her hearing, be afforded the full opportunity to “present matters in defense, extenuation, and mitigation orally, or in writing, or in both.”  Part V, MCM, para. 4(c)(1)(E), V-3 (2012).   

- NCOERs AND OERS WILL MAKE OR BREAK YOUR PROMOTION AND WHETHER YOU RETIRE May 20 2014, 0 Comments

INACCURATE, UNTRUE AND IMPROPER NCOERs and OERs MUST BE CORRECTED

IT IS YOUR CAREER, RETIREMENT AND HEALTHCARE BENEFITS AT STAKE

(IMPORTANT NOTE:   NCOERs Are Treated Somewhat Differently)
What to do if you receive a referred OER in a Relief for Cause from Command (Chapter 3)
Opportunity to submit comments when you acknowledge receipt of the OER, but first you should usually request Redress, as per Chapter 4 belowAR 623-3, Chapter 3
(5) Upon receipt of the rated officer’s acknowledgment (for example, receipt of a signed OER or AER, email, signed certified mail document, signed acknowledgment statement accompanying memorandum, submission of signed comments, and so forth), the senior rater will enclose it, any written comments provided by the rated officer, and the referral memorandum, with the original OER or AER for forwarding to—
(a)The reviewer (if applicable).

(b)The BN or BDE S1, administrative office, or HQDA, as appropriate.

(c)The other rating officials if paragraph c(4) applies.

(6) In cases where the rated Soldier acknowledges receipt of the referred OER or AER, but refuses to sign the OER or AER, the senior rater (or reviewer for AERs) will enter “The rated officer (or NCO) refused to sign.” in part VI, block c for OERs, item 14 for AER-S, or item 13 for AER-C.
c. If comments are provided—
(1) Comments will be factual, concise, and limited to matters directly related to the evaluation on the OER or AER; rating officials may not rebut a rated Soldier’s referral comments. Extraneous or voluminous material, material already contained in the officer’s AMHRR, and enclosures or attachments are prohibited. 
(2) Any enclosures or attachments to rebuttal comments will be withdrawn at the unit or organization-level and returned to the rated Soldier before the OER or AER is forwarded to HQDA.
Note. AERs for ARNG NCOs will be forwarded to the state military personnel office versus HQDA (see apps F and H).

(3) The rated Soldier’s comments do not constitute an appeal. Appeals are processed separately, as outlined in chapter 4. Likewise, the rated Soldier’s comments do not constitute a request for a CDR’s or commandant’s inquiry (see chap 4, sec II). Such a request will be submitted separately by the rated Soldier.
(4) If the senior rater (OER) or reviewing official (AER) decides that the comments provide significant new facts about the rated Soldier’s performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate. The rating officials, in turn, may reconsider their evaluations of the rated Soldier. The senior rater or reviewing official will not pressure or influence another rating official. Any rating official who elects to raise their evaluation as a result of this action may do so. However, the evaluation may not be
lowered because of the rated Soldier’s comments. If the OER or AER is changed but still requires referral, the OER or AER will again be referred to the rated Soldier for acknowledgment and the opportunity to provide new comments, if desired. Only the latest acknowledgment (“YES” or “NO” on OER or AER signed by the rated Soldier) and the rated Soldier’s comments, if submitted, will be forwarded to HQDA.
Note.  AERs for ARNG NCOs will be forwarded to the State EPM versus HQDA (see apps F and H).

d. If the rated Soldier fails to respond within the given suspense period, or if certified mail sent to an officer’s last
known forwarding address is returned indicating that the Soldier cannot be reached at that address, the senior rater will annotate on the referred OER or AER, “Rated officer was not available to sign.” When no signature appears on a referred OER or AER, the senior rater will prepare a memorandum as an enclosure to the OER or AER to document referral actions taken and whether or not there was acknowledgment of the rated officer (a copy of the returned certified mail document and/or email referral/“read receipt” may be included, if used, as enclosures to this memorandum)
for forwarding to—
(1) The designated individual who will perform the supplementaryEvaluation Report Redress Program
Section I
Managing the Redress Program
4–1. Overview

a.  The Evaluation Report Redress Program consists of several elements at various levels of command (for example, field, HRC, DCS, G–1, and HQDA). The program is both preventive and corrective, in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred.
b. The first program element is the communication process fostered by the DA Form 67–10–1A and DA Form
2166–8–1, which affords the rated officer or NCO a forum for establishing duty requirements and a discussion of actual accomplishments (see chap 3, sec II, and DA Pam 623–3). A second element is the various regulatory requirements, such as each evaluation report standing on its own without reference to facts or events occurring prior or subsequent to the rating period (para 3–16) and the prohibition against command influence on rating officials during the preparation of evaluation reports (see para 1–11 and DA Pam 623–3).
c.  If an OER or AER is referred, there is the evaluation referral and acknowledgment process (para 3–28 and DA
Pam 623–3).
d.  Beyond regulatory remedies, elements of the Redress Program, CDR’s or Commandant’s Inquiry (sec II, this
chap), the Appeals System (sec III, this chap), and application to the Army Board for Correction of Military Records (ABCMR) under the provisions of AR 15–185 are available.
e.  This chapter focuses on the policies, procedures, preparation, and submission of a CDR’s or Commandant’s
Inquiry and an evaluation report appeal.
4–2. Information

a.  An OER, NCOER, or AER-S may have administrative errors or may not accurately record the rated Soldier’s
potential or the manner in which he or she performed his or her duties. The Evaluation Report Redress Program protects the Army’s interests and ensures fairness to the evaluated officer or NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A CDR’s or Commandant’s Inquiry and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a CDR’s or Commandant’s Inquiry; however, a CDR’s or Commandant’s Inquiry is not a prerequisite for the
submission of an appeal.
b. DA Pam 623–3 amplifies and clarifies the policies outlined in this chapter by providing detailed guidance on the
preparation of an appeal. Rated Soldiers considering submission of an appeal are strongly encouraged to read the appeals section of this pamphlet in its entirety prior to preparing and submitting one. A thorough understanding of the appeals system can save considerable time and effort and reduce the anxiety associated with having an appeal returned without consideration.
Section II
Commander’s or Commandant’s Inquiry
4–3. Applicability

CDRs (OER and NCOER) or commandants (AER) are required to look into alleged errors, injustices, and illegalities in evaluation reports. This section does not pertain to AERs or other evaluation reports provided by civilian educational, medical, or industrial institution because there is no military command structure available.
4–4. Purpose

Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the CDR’s or commandant’s attention by the rated Soldier or anyone authorized access to the report (para 1–11).
a. The primary purpose of a CDR’s or Commandant’s Inquiry is to provide a greater degree of command
involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.
b. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is
accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record (para 3–36 provides restrictions on modifications to previously submitted reports already accepted by HQDA).
c. The provisions of AR 15–6 do not normally apply to inquiries of this type. However, the CDR or commandant
may determine that the provisions of AR 15–6 apply in specific instances.
4–5. Policy

a. A CDR’s or Commandant’s Inquiry will not be used to document differences of opinion among members of the
rating chain about a rated Soldier’s performance and potential. The evaluation system establishes rating chains and normally relies on the opinions of the rating officials. Rating officials will evaluate a rated Soldier and their opinions constitute the organization’s view of that Soldier. However, the CDR may determine through inquiry that the report has serious irregularities or errors. Examples include:
(1) Improperly designated, unqualified, or disqualified rating officials (that is, a rating official not in the published rating chain; a rating official without the minimum required time to render an evaluation report; or a rating official who, through an official investigation, has had a substantiated adverse finding against him or her that results in his or her relief or calls into question the rating official’s objectivity).
(2) Inaccurate or untrue statements.
(3) Lack of objectivity or fairness by rating officials.
b. The inquiry will be made by a CDR in the chain of command or military school commandant above the
designated rating officials involved in the allegations. In headquarters and other military organizations lacking a CDR or commandant, the inquiry will be conducted by the next higher official in the rating chain above the designated rating officials involved in the allegations.
c. The official conducting the inquiry will not pressure or force rating officials to change their evaluations.

d.  The official conducting the inquiry may not evaluate the rated Soldier, either as a substitute for, or in addition to, the designated rating officials’ evaluations.
e. The rating chain or official conducting the inquiry will not use the CDR’s Inquiry (OER or NCOER) or
Commandant’s Inquiry (AER) provisions to forward information derogatory to the rated Soldier. For OERs and AERs only, if the inquiry reveals matters that might have resulted in a lower evaluation of a rated Soldier, the information will be addressed in the memorandum outlining the results of the inquiry by the CDR or commandant responsible for the inquiry in accordance with paragraph 3–38. No changes will be made to an evaluation report to reflect a lower evaluation of a rated Soldier following the results of a CDR’s or Commandant’s Inquiry.
f. To ensure the availability of pertinent data and timely completion of an inquiry conducted after the evaluation in
question has been accepted at HQDA for inclusion in the rated Soldier’s OMPF, the inquiry will be conducted by either the CDR or commandant at the time the evaluation was rendered who is still in the command position, or by a subsequent CDR or commandant in the position. The results of the inquiry will be forwarded to HQDA not later than 120 days after the signature date of the senior rater (OER) or reviewer (NCOER) or authenticating official (AER).
g. The results of the inquiry forwarded to HQDA will include the findings, conclusions, and recommendations in a
memorandum that will be filed with the evaluation report in the rated Soldier’s OMPF for clarification purposes (see fig 4–1). The results will include the CDR’s or commandant’s signature, will stand alone without reference to other documentation, and will be limited to one page. Sufficient documentation, such as reports and statements, will be attached to justify the conclusions.

- THE LAUTENBERG AMENDMENT: A PITFALL TO A MILITARY CAREER May 16 2014, 0 Comments

Lautenberg Amendment

The Lautenberg Amendment to the Gun Control Act of 1968, effective 30 September 1996, makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition. The Amendment also makes it a felony to transfer a firearm or ammunition to an individual known, or reasonably believed, to have such a conviction. Soldiers are not exempt from the Lautenberg Amendment.

Summary court-martial convictions, nonjudicial punishment under Article 15, UCMJ, and deferred prosecutions (or similar alternative dispositions) in civilian court do not constitute qualifying convictions within the meaning of the Lautenberg Amendment. The prohibitions do not preclude a soldier from operating major weapons systems or crew served weapons such as tanks, missiles, and aircraft. The Lautenberg Amendment applies to soldiers with privately owned firearms and ammunition stored on or off post.

Army policy is that all soldiers known to have, or soldiers whom commanders have reasonable cause to believe have, a conviction of a misdemeanor crime of domestic are non-deployable for missions that require possession of firearms or ammunition. Soldiers affected by the Lautenberg Amendment are not eligible for overseas assignment. However, soldiers who are based outside the continental United States (OCONUS) will continue to comply with their assignment instructions.

Soldiers with qualifying convictions may not be assigned or attached to tables of organization and equipment (TOE) or modified TOE (MTOE) units. Commanders will not appoint such soldiers to leadership positions that would give them access to firearms and ammunition. Soldiers with qualifying convictions may not attend any service school where instruction with individual weapons or ammunition is part of the curriculum.

Soldiers whom commanders know, or have reasonable cause to believe have, a qualifying conviction may extend if otherwise qualified, but are limited to a one year extension. Affected soldiers may not reenlist and are not eligible for the indefinite reenlistment program. Soldiers barred from reenlistment based on a Lautenberg qualifying conviction occurring after 30 September 1996 may not extend their enlistment. However, such soldiers must be given a reasonable time to seek removal of the conviction or a pardon.

Officers are subject to the provisions of the Lautenberg Amendment like any other soldier. The effects of are somewhat different if an officer has a qualifying conviction. Officers may request release from active duty or submit an unqualified resignation under AR 600-8-24, Officer Transfers and Discharges.

 

- A GOOD YEAR IN THE GUARD AND RESERVE; WHAT IS REQUIRED OF YOUR UNIT April 26 2014, 0 Comments

ENSURE THAT YOU EARN A GOOD YEAR IN THE GUARD AND RESERVE

 

SUTAs (Split Unit Training Assembly) should be permitted at your military Reserve or National Guard unit if other units in your Command or State permit such flexibility for other military personnel.  In light of the unpredictable nature of the lives that we all lead, SUTA is normally an option.