Legal Assistance to Military Personnel Section

The WSBA Legal Assistance to Military Personnel (LAMP) Section addresses matters related to the rendition of appropriate and efficient legal service to members of the armed forces of the United States. Initially formed as a standing committee of the Washington State Bar Association in 1996, the LAMP Section was formed in October 2004.

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CHAIR’S CORNER

— Stephen Carpenter Jr.

Promotion Boards and Prior Adverse Actions    

After two years at the helm, my final Chair’s Corner heads into the sunset, so what better topic to end on than examining an issue that meaningfully impinges (sometimes unfairly) promotions in our Armed Forces.

 As you may be aware, the Adverse Information Pilot Program (AIPP) is based on 10 U.S.C. § 615(a)(3), which reads, in part, with regard to promotions to a grade of O-4 or higher (MAJOR) “any credible information of an adverse nature, including any substantiated adverse finding or conclusion from an officially documented investigation or inquiry, shall be furnished to the selection board in accordance with standards and procedures set out in the regulations prescribed by the Secretary of Defense….”(emphasis added)  

Remarkably, 10 U.S.C. § 615(a)(3) does not define “substantiated.” It is a standard without a burden of proof. As a result, uniformed members are often left befuddled. Fortunately, several U.S. Army Regulations (AR), and a Department of Defense Instruction (DODI) decree substantiated evidence “must be resolved and supported by a preponderance of the evidence.” DoDI 1320.04 (Incorporating Change 1 Effective June 30, 2020). Similarly, AR 600-8-24, para. 4-2 states that a “substantiated adverse finding” based upon a [board] of “inquiry” (BOI) constitutes an adverse finding needed to justify elimination. Proceeding with this stream of logic, a BOI only substantiates findings if “supported by a preponderance of the evidence…” Id. para. 4-6; see also, AR 135-175, para. 4-1 (“function of the board will be to determine, by a preponderance of the evidence standard, whether or not the ground(s) for discharge listed in the notice to the officer (respondent) exists.”)   

Although the preponderance standard seems clear, this has not stopped some overzealous military law enforcement officials from interjecting unsubstantiated matters into promotion boards based upon a Judge Advocate’s so-called “probable cause opines.” However, this “probable cause” standard is legally insufficient to trigger the adverse disclosure requirements set forth by 10 USC § 615(a)(3). See e.g., United States v. Bethea, 61 M.J. 184 (C.A.A.F. 2005) (“Probable cause is met by less than a fifty percent probability, so that even two contradictory statements can both be supported by probable cause.")

In summary, “probable” does not mean likely, but such matters must assuredly be shown “more likely” before a servicemembers promotion may be equitably deprived. On the other hand, if it is “not more likely than not” one should consider vehemently seeking relief before the applicable Corrections Board. (See e.g., DD Form 149) Each branch of the military has a board that oversees the correction of service records. Note, the statute of limitations is 3-years. Good luck!

CHAIR’S CORNER

— Stephen Carpenter Jr.

Military Retirees and the Threat of Trial by Court-Martial

Cue 2022, judicial opinion on whether military retirees may be subject to court-martial remains firmly split between two circuits. In a nutshell, federal civilian courts have held Article 2(a)(6) of the Uniform Code of Military Justice (UCMJ) —which expands court-martial jurisdiction to include military retirees—is unconstitutional. In contrast, federal military courts believe prosecution of retirees is authorized.

Specifically, the Court of Appeals for the Armed Forces (CAAF) recently held “Court-martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, nor does subjecting members of the Fleet Reserve and not retired reservists to UCMJ jurisdiction violate equal protection.” United States v. Begani, 81 M.J. 273, 2021 WL 2639319, at *1 (C.A.A.F. 2021) Meanwhile, the United States Court of Appeals for the Federal Circuit rather brazenly distinguished Begani because CAAF “did not consider or otherwise address the question of whether retired military officers acting as civilian employees of a military organization can serve on military correction boards.” See, Begani, 81 M.J. 273, 2021 WL 2639319, at *1 And, even if it [CAAF] had, it would not bind this court.” Nicely v. United States, 23 F.4th 1364 (2022) In sum, we seem to have a judicial turf war brewing.

No matter which federal court is best equipped to assess the constitutionality of Article 2(a)(6), there is no doubt that the United States Supreme Court will ultimately settle the matter. Thus far, it appears military retirees may have reason for worry because our nation’s highest court denied cert. in Begani which had effectively repudiated Larrabee v. Braithwaite. 502 F.Supp. 2d 322 (2020) (overturning military retiree’s conviction by court-martial for sexual assault committed after he retired from the U.S. Marine Corps and was transferred to the Fleet Marine Corps Reserve)

Based upon the currently unsettled state of the law, military retirees need to be cautious, and concerned as military criminal courts do not require a unanimous verdict to secure a criminal conviction. Simply put, while retiree prosecutions like Larrabee are extremely rare they may exponentially increase should the Supreme Court unequivocally pave the way.  

CHAIR’S CORNER

July 8, 2022

— Stephen Carpenter Jr.

The National Defense Authorization Act (NDAA) for Fiscal Year 2022, will take effect no later than Dec. 27, 2023.  Among its sweeping changes to military justice, perhaps the unequivocal “criminalization of sexual harassment” will have the most effect on the collective behavior of military members. NDAA 2022 mandates the President to create a new standalone “sexual harassment” offense punishable under Article 134, Uniform Code of Military Justice (UCMJ).  Make no mistake, even before NDAA 2022, “sexual harassment” has been a violation of a “punitive” general regulation under Article 92, UCMJ. See, Army Regulation (AR) 600-20, paragraph 7-7. Even so, to date, “sexual harassment” offenses have been infrequently charged.

Indeed, it is perhaps this lack of prosecutorial vigor which is arguably the intent behind the creation of this new Article 134, UCMJ offense. In fact, the NDAA will create a body of “independent” investigators to spearhead this reinvigorated effort in tackling “sexual harassment.”  Within this context, the broad language defining “sexual harassment” will ultimately play the pivotal role in the future careers of countless servicemembers.

However, there is not yet any caselaw analyzing what behavior constitutes “sexual harassment” under Article 134, UCMJ. As a result, if you will, military defense practitioners will be left to aimlessly dispute whether their client’s conduct brought “prejudice to good order and discipline” or otherwise “discredited the armed forces.” Within this interpretational vacuum, future military prosecutors could naturally draw upon AR 600-20, paragraph 7-7, which liberally characterizes nonverbal “sexual harassment” as “inappropriately or excessively staring at someone too long” or by “winking.”

This same regulation further defines verbal “sexual harassment” to be tantamount to terms of endearment like uttering, in part, the words "honey," “sweetheart," “dear," “stud," or “hunk" in referring to Soldiers, DA Civilian coworkers, or Family members.”  Id. Terms of endearment may assuredly offend, but the likeliness of a criminal conviction should not depend upon the geographic venue of the court-martial. By way of illustration, I recently travelled to Fayetteville for a court-martial, where folks repeatedly said “honey.” In stark contrast, as I witnessed, this same word was recently used toward a Soldier stationed in Vilseck, who thereafter became deeply irate.

In any case, no matter the side of the aisle one takes, federal crimes should not be wholly dependent on the “subjective” perception of the perceiver, but that is precisely where the armed forces may be trending. The further fact that a uniformed member can be technically sent to confinement for more than a year for violating Article 134, UCMJ for saying the word “honey” is a further reason to painstakingly reflect on the potential implications of this new criminal law.

LAMP General Meeting Schedule

Below is the schedule for LAMP General Meetings through the end of 2022. Each meeting directly precedes a Mini-CLE. Watch the WSBA events calendar for the topic and a registration link as each event date approaches.

Fall meeting, date TBD soon, 11 a.m. followed by Mini-CLE at noon.

Thursday, Dec. 8, 11 a.m. followed by Mini-CLE at noon.

Webinar Series on Evictions Representation

LAMP supports, protects and legally empowers America’s current and past uniformed military members.  Patriots should expect no less. As part of this responsibility, LAMP provided, in conjunction with the AGO OMVLA, a three-part Mini-CLE series which addressed the empowerment of Veterans, through their counsel, in cases in which they erroneously face eviction from their homes.  All Veterans deserve to have a home; the law, through dedicated professionals, should ensure it.

As such, we earnestly invite you to carefully listen to Part 1 of this insightful Mini-CLE series, which is available below. Part 1 analyzes the applicable legislations. Part 2 addresses the processes specific to eviction law, and Part 3, winning strategies at show cause hearings. Veterans deserve legal protection, and you, as advocates, are uniquely positioned to make a major difference in their lives, as they once, not long ago, did for you, and your family.

Part 1: Understanding the Changing Legal Landscape and How the Legal Community Can Help Veterans and Servicemembers at Risk of Being Evicted

This webinar, presented on June 25, 2021, reviews how the new legislation impacts the eviction process (RCW 59.12) and how it amended the Residential Landlord Tenant Act in Washington State (RCW 59.18). The webinar also provides information on opportunities to help veterans and service members at risk of being evicted.

FACULTY

Joyce Bruce, Attorney General’s Office of Military and Veteran Legal Assistance, Seattle
Scott Crain, Northwest Justice Project, Seattle

Watch now

This link is not accredited for CLE credit and is available for viewing for up to one year after the live event date (June 25, 2021).

LAMP in the News!

See the Section Spotlight feature in the November 2020 issue of Washington State Bar News: 

LAMP at the Forefront of Helping Our Uniformed Folks in Washington State

Legislation

Attorneys Assisting Citizen-Soldiers and Families (AACF)

RCW's Relating Military Affairs and Veteran Affairs

APR 8(b)

SHB 1170 (parenting plans based on military service)

ABA Military Pro Bono Project

WSBA Legislative Activities

Resources

The following resources include information describing issues affecting military personnel. Lawyers, businesses, and members of the public will find help regarding reserve and active military personnel in all branches of service.

WSBA recommends that military personnel visit their base JAG office for specific information regarding particular questions.

Executive Committee

Please contact subcommittee member for details on their upcoming meeting dates and locations.

To join the section list serve and for more general section questions, please send your email address and Bar number to sections@wsba.org. For more information and to get involved with the section, please contact the current section chair, Paul Apple.