SOF Soldiers under an ever-changing legal fire

I have recently represented several special forces soldiers in tab revocation proceedings. These soldiers were under investigation for misconduct, some real and some perceived.

In the 5th Special Forces group, the commander has a policy letter on tab revocation requirements for misconduct.  As part of the tab revocation, there is a requirement to reclass the soldier out of the 18 series MOS.  So, he loses both the Green Beret and the actual ability to operate in his field.  My response to this is two-fold, (1) I am always saddened to see such highly trained and successful soldiers lose both their MOS and their tab; and (2) I am amazed at the changing landscape of the SOF Community.

Several years ago, I wasn’t hired by many SOF Soldiers.  This has changed radically.  I have represented 18 series Soldiers in many Courts-Martial and Administrative Separation Boards recently.  In the old days, if a Green Beret committed misconduct, the misconduct was swept under the rug and not much was done to the tabbed Soldier.  This developed into an idea of the “big boy” rules, where the tabbed soldiers were expected to be professional, without a lot of supervision.  In the absence of the soldier’s professionalism, many times the command would not know what to do.

Those times have change.  There have been several embarrassing incidents, which have brought unwanted attention to the commands, are causing commanders to reevaluate the “big boy” rules.  Drinking incidents have begun to result in administrative discharges for tabbed soldiers.  Criminal conduct downtown and while deployed the same.

With so much training and expertise, these decisions to end these special careers should be examined carefully by the commands.  We can’t have soldiers who run amuck, but I sure hate to see all that courage and all those tax dollars flow down the drain.

Problems for Deployed Civilian Contractors working for the Military

Recently, I have had several civilian contractors hire me for actions in Afghanistan and Iraq. During their work with the military in these deployed environments they have been the subject to either investigation or suspension.  The interesting thing is that the military officers that have dealt with these contractors seem to be acting without clear guidance from higher headquarters and are very erratic in the way that they treat the civilian contractors.

The Contractors seem to be without much due process in dealing with allegations that are brought against them while being deployed.  A couple of my clients were subject to unwarranted searches and have had personal belongings seized.  Getting these items back has been extremely difficult.

In one of the cases, the FBI is doing the investigation, but has never formally arrested or charged my client.  The investigation seems to have been brought about because of a commander’s suspicions, which at the point are both unwarranted and probably negligent.

In another case, my client brought concerns up to a commander about the safety, both OPSEC concerns and personal safety concerns.  The response was to ignore the problem and send my client home. The commander seemed to believe he had complete discretion.

I would be interested to hear about other experiences like this that contractors may be having in a deployed environment.

Let LT Behenna’s Ongoing Defense Help Other Soldiers

My initial blog about LT Behenna’s Court Martial was an after thought. I intended to just write a few words about what I perceived to be a fascinating trial and the serious ethical and political struggle that went along with that trial. My real concern has always been for MY client, SSG Mitch Warner. For me, Mitch is a true American hero that should not be forgotten in all of this. He was and is a dedicated soldiers and served his country well for most of his infantry career.

I have watched as the ground swell of support and dissent has grown over the last year for Lt Behenna. I see many Defend LT Behenna web site’s on Facebook, Myspace and elsewhere. I see legal forums and threads popping up all over the place. The hits on my blog have swelled to almost 2500 a month. I have been overwhelmed with the response and it is growing.

I have attempted to remain somewhat neutral on the LT Behenna case. Not because I have anything against LT Behenna, but my clients interests are best served by my neutrality.  My client is Mitch Warner and LT Behenna has numerous supporters and clearly doesn’t need me.  My hope is that this defense and pride in supporting LT Behenna will pour over to other soldiers that have not been treated with the respect they deserve.

In the next few weeks, I will start to detail the story of another client of mine that has experienced injustice in a detainee abuse case.  This happened in Afghanistan and is an amazingly ridiculous response to a proper interrogation.  This story will be broken by CNN but I am hoping that those that support LT Behenna will be willing to pour that over to other soldiers in need.

Sadly, within the same platoon that was hit with the IED allegedly planted by Ali Mansur’s people, there are soldiers that have serious PTSD and Traumatic Brain Injury (TBI) from that incident.  In addition, one of those soldiers, has struggled to adjust to being home.  These soldiers should not be forgotten either. LT Behenna, SSG Warner, and all the members of their platoon have been casualties of the IED attack on LT Behenna’s platoon.  The effects continue to be far reaching.

LT Behenna’s ongoing defense.

I was on facebook yesterday and strangely enough got a request to be part of a group to defend LT Behenna.  One of my friends sent me the link and I thought it was ironic that he did not know that I represented SSG Warner and had watched the trial of LT Behenna.  I believe part of the request was to sign a petition in order to have LT Behenna pardoned.  With this current administration and their take on the war in Iraq,  I believe that is highly unlikely, but it would be a viable way to mitigate the very heavy sentence in this case.

LT Behenna and SSG Warner were both part of a very tragic story.  Several weeks before the killing of Ali Mansur took place, LT Behenna’s squad had captured Ali Mansur at his home.  They had credible information to believe he was part of Al Qaeda and that he was a terrorist that had been involved in the death of several of LT Behenna’s squad members.  The members of LT Behenna’s squad, along with SSG Warner, showed restrained at that time.  If they had wanted to, they could have easily made up a plausible story that Ali Mansur resisted his capture.  There were illegal weapons at Ali Mansur’s home and it would have been a simple matter to kill him during the armed take down of that home.  But, that is not what happened.

LT Behenna and the members of his squad decided that they would let the “authorities” investigate Ali Mansur.  They dropped him off at a detention facility with all of the information that they knew about his terrorist activities and hoped that justice would prevail.  Instead, within a matter of weeks, LT Behenna and his squad were asked to return Ali Mansur to his home and his village.  Military Intelligence determined that they didn’t have enough to hold Ali Mansur despite the RPGs, weaponry and illegal passports from Iran that were found at his home.  Clearly, Ali Mansur was involved in nefarious activities and LT Behenna believed he had credible evidence to prove that.

LT Behenna’s frustration at the release of Ali Mansur back to his family was understandable.  After witnessing the death of the men in his squad, in what he believed was directly related to the activities of Ali Mansur, was surely a motivating factor in driving Ali Mansur to the desert and stripping him naked.

These events are very much a picture of what is occurring in both Iraq and Afghanistan.  We ask our soldiers to toe the line, and to deal with whatever decision comes from higher, even if they don’t understand the wherefore’s and the why’s.  For many, the resulting death of Ali Mansur, is no tragedy.  For them, the resulting incarceration of LT Behenna for avenging his men, is the true tragedy.

As a former JAG, I understand the need for the laws of war.  I just don’t believe ultimately that the decisions that are made on the battlefield are so easily codified and analyzed as to fit in the Geneva Conventions.  If SSG Warner and LT Behenna had deliberately decided to kill Ali Mansur when they picked him on that first day, would that have gotten LT Behenna 25 years of jail?  Probably not.

You can get divorced while deployed

Our law firm, Phillips Law, PLLC, has many clients who are either in the military or who are spouses to military members.  For our new self-help legal service, go to invisblelawyer.com. Most of our clients have some affiliation with the 101st Airborne Division (AASLT).  Since 911, the military has been operating at a very high OPTEMPO.  This means almost all of our military clients will experience a deployment to Southeast Asia at some point in their careers.  This also means that many of our clients who have deployed repeatedly will go through at least one divorce.There is a myth among many military lawyers and military members that soldiers cannot get divorced while they are deployed.  In many states, this is not true and in Tennessee this is definitely not true.  We frequently get our clients divorced when one of the parties is deployed.

For our Tennessee clients, in order to get the divorce while deployed, a couple of things must happen.  One, the divorce will have to be uncontested.  This means that the two sides will have to agree on a Marital Dissolution Agreement that splits all of the marital property. Two, if they have kids, they will have to have a parenting plan completed, with the appropriate child support under the Tennessee Child Support Guidelines.  If the two parties agree to all of this, a civilian lawyer can file the paperwork as an irreconcilable divorce and have the couple divorced in about 90 days.

Although some Tennessee Counties require testimony for an uncontested divorce, where the parties come in and testify that they will be unable to reconcile, this testimony can normally be accomplished by the servicemember through the use of interrogatories.  Interrogatories are a series of sworn written question and answers that are presented to the court.  The judge has the ability to accept this interrogatories instead of using live testimony.

The one issue that can develop is that getting the paperwork back and forth to the deployed soldier can add additional time to the entire process.  With the use of email, this can keep things going at a quick clip.  Generally, the mail from Iraq takes seven to ten days to get here if our clients need to mail us sworn originals.

Lawyers and servicemembers do need to be careful about the timing of filing for divorce.  The Servicemember is protected from many aspects of divorce under the Servicemembers Civil Relief Act.  The SCRA protects soldiers from final judgement while they are deployed, although many temporary hearings are authorized despite their deployment.  This is why the soldier must be careful not to “make an appearance” before the court.  This can be done by filing the original complaint for divorce or by filing a response or counter-complaint.  Once the soldier is in front of the judge, he may have to pay child support or spousal support despite being deployed.

For contested divorces, where there must be a trial, much of the work of divorce, the discovery aspects can be completed while the soldier is in Iraq.  Many of my special forces clients go and come back throughout the pendency of the divorce.  But, for soldiers who are not able to participate in a contested divorce, they will probably be forced to sit and wait for redeployment.

Filed under: Alimony, Attorney, Children, Contested divorce, Custodial Parent, Custody, Default Judgment, Deployment, Depositions, Divorce, Divorce Attorney, Divorce Lawyer, Divorce Transcript, Divorce Trial, Divorce packets online, Final Decree, Iraq, Lawyer, MDA, Marital Dissolution Agreement, Mediation, Motion for Support, Online divorce service, Parenting Plan, Primary Residential Parent, SCRA, Servicemembers civil relief act, Tennessee Child Support Guidelines, Tennessee