VA Disability

You can get divorced while deployed

/ James Phillips / 4 Comments
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

SSG Warner heads home

/ James Phillips / 2 Comments

I (www.jamesphillipslaw.com) spoke to SSG Mitch Warner’s family on Monday morning.  They solidly stand behind Mitch and are now beginning to gather the evidence required for us to put on an appeal for SSG Warner.  In speaking to them, they spoke of their disappointment with the US Army and the decision-making that lead to the death of detainee Ali Mansur by LT Behenna.

SSG Warner is now headed to Fort Sill, OK, where he will serve the balance of his seventeen month sentence.  He will be close to home and at least he will finally be finished with his combat tours.

One of the questions taht I have never gotten an answer for in this case is Why did LT Behenna’s higher headquarters and unit release Ali Mansur to 5th platoon?  This seemed extremely odd to me.  5th platoon had lost soldiers and had several wounded just a couple weeks prior.  Ali Mansur was a suspect in those killings and that IED attack.  5th platoon had gone out and picked Ali Mansur and took him into the detainee detention facility as a suspect in the death of the soldiers.

So, why in the world, when the higher ups had decided that Ali Mansur had no information and couldn’t be held for the attack, did the chain of command use the same platoon that picked him up as a suspected terrorist to drop him off to the local population?  There are no good answers.  One answer would be that the Chain of Command wanted LT Behenna to have someone kill Ali Mansur.  If there was a deliberate and conscious knowledge of Ali Mansur’s alleged AQI association, the COC may have thought that LT Behenna would find a way to have Ali Mansur killed.  They could have dropped him off with those Iraqis that wanted him dead.  They could have faked an incident or escape.  The expectation may have been that 5th platoon would find a way to get the job done.

But, I am not much of a conspiracy theorist.  The more likely answer is that this was just stupid negligence.  The Chain of Command should have known that there would be an issue with the drop off of this detainee, but they were just too busy or distracted to think of the clear implications of this drop off.

Either way, this was an event that should have been avoided.  The command had a responsibility to know that soldiers that have been under attack and have suspected terrorist in detention for those attacks are not the soldiers that should drop that detainee off to the local populace.  This is a no brainer.

SSG Warner and LT Behenna are now both serving time for a death of a detainee.  The trials of both men were complicated by the fact that they each knew that Ali Mansur was a suspected AQI member.  LT Behenna did have justification for the killing, but it probably wasn’t the justification that the US Army wants to hear.  Regardless, this whole event should have been stopped before it ever got started.  Another platoon should have done the drop off.  The blame for the shots being fired can be laid at LT Behenna’s feet, but the death of Ali Mansur and the conviction of two US Infantrymen can be laid at the feet of the chain of command. 

More on SSG Mitch Warner and his appeal process

/ James Phillips / 5 Comments

I am the lead counsel in US v. Warner. I am a military lawyer and nothing in this blog is meant to be construed as developing an attorney-client relationship between me and you.  If you want me to be your lawyer, contact either –www.jamesphillipslaw.com and www.ucmjlawyer.com.  Also, this update is written with the permission of my client SSG Mitch Warner.  He has consented to waive any attorney-client privilege to help clear his name.

For anyone who has read my blog on SSG Warner, you will know that I believe in SSG Warner as both a soldier and a citizen.  Over the time I have defended him in this Court-Martial, I have come to respect him as a person and as a combat veteran.  He deserves better than he is getting from the US Army.

Mitch Warner was convicted of several offenses and is currently beginning to serve his 17 month sentence.  He was convicted of the maltreatment of a suspected Al Queada member who may have been linked to the death of several members of SSG Warner’s platoon.  At trial, Ali Mansur, the Iraqi detainee that was ultimately killed, was made out by the government to be a humble citizen of Iraq who was unfairly treated by our US Soldiers.  There is evidence that this is just not true.  One of the reasons that this entire tragic event took place, which resulted in the killing of Ali Mansur by 1LT Behenna, was that Ali Mansur was suspected in participating in the killing of American Soldiers near COB Speicher.  5th Platoon, the platoon the both 1LT Behenna and SSG Warner, were assigned to, took significant casualties just a few weeks prior to the May 16, 2008 death of Ali Mansur.  Mr. Mansur was picked up by 5th Platoon and was detaineed as part of the investigation of those deaths.  For a reason unknown to the defense team, Ali Mansur was order to be released from custody and was to be returned to his home by 5th Platoon.  Now, it doesn’t take a genius to know this was probably not a good decision on the part of the chain of command.

For SSG Warner, these facts do not change the outcome of his trial.  He now must begin to ask for both clemency and to appeal his sentence.  In the Army, the appeals process is two-fold, (1) the convicted Soldier may appeal to the convening authority, and (2) after that, they may appeal to a higher level court.

The first part of the process is termed as 1105 and 1106 matters.  Essentially, this will allow the defense team to submit additional matters in mitigation to the “convening authority.”  In the military, a military judge makes a determination as to the appropriate sentence in every judge alone case.  After the verdict is read, it still must be approved by the convening authority.  In this case, the Commander of the 101st Airborne Division (AASLT) may take action on the case and has the option of lowering the sentence.  It is his discretion based on matters submitted by the defense and a recommendation submitted by the Staff Judge Advocate of the Post. 

In Mitch Warner’s case, we will ask the convening authority to lower the sentence.  SSG Warner has distinguished himself as a soldier and in this case, based on the nature of the offenses, SSG Warner should not serve any additional time in confinement.  SSG Warner has an impeccable service record, to include Air Assault instructor, three tours in Iraq, numerous firefights and heroic actions in combat.  In addition, he has spent the past months defending himself against a charge of premeditated murder that he was not guilty of.

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or significant confinement, the case is reviewed by the Army Court of Criminal Appeals.  In this case, both the type of discharge and the amount of confinement warrant an appeal.  Although SSG Warner would be afforded a military lawyer for his appellate defense, we would like for him to be represented by a team of civilian lawyers.  If you want to help with this endeavor and participate in the ongoing legal defense of SSG Warner, you may donate money to the Phillips Law, PLLC Trust Account.  Call our office at (931) 552-5679 for instructions on how to get involved in this case.  Get the word out to everyone you know.  This is a soldier that we should not forget and the more the better.

Post Traumatic Stress (PTSD)

/ James Phillips / 3 Comments

Post Traumatic Stress Disorder has become an increasing problem for the military.  The Army Times this month has reported that more soldiers have died due to suicide than in combat.  This is a disturbing statistic.

Many of our clients have served several tours in Iraq and Afghanistan.  www.jamesphillipslaw.com and www.ucmjlawyer.com. They have been highly decorated for their combat service.  The problem is that emotionally, when they come home from the combat zone they are not ready for civilian life.  At home, they exhibit symptoms associated with PTSD.  They become aggressive.  They experience nightmares.  They have violent tendencies.  They are anti-social.  They begin to self-medicate.

I had a client that had all of these issues.  He was court martialed for a series of criminal misadventures, to include grand theft auto, drug use, adultery, etc.  At sentencing, the prosecutor argued that this soldier should recieve the max punishment for his misconduct.  The problem was that this is the typical military view.  Misbehaving soldiers are criminals.  The Military struggles to have a holistic response.

In this case, the judge was presented with evidence that our client had PTSD and that he was a forever changed person from his experiencing in Iraq. Our client testified that as soon as he came home he could not associate with his family.  He had a solid relationship with his wife and baby prior to leaving for Iraq.  Once overseas, he was repeatedly placed in harm’s way.  He was diagnosed with PTSD upon his return from Iraq.  When he got back from Iraq, he sent his wife and baby home.  He then started drinking, smoking pot, and just losing his mind.

 After the prosecutors closing argument, the judge asked “Is that really the government’s position?”  The answer was “yes.”  The judge replied, “well then I will dismiss everything the government just said.”

The reason for this was that this is a ridiculous and morally bankrupt response.  What do you do with these soldiers who have been damaged by their experiences in Iraq and Afghanistan?

We successful used his behavior and his PTSD diagnosis to keep our client from being punished with a punitive discharge.  The problem was that in the end, the Army did not know what to do with this soldier.  He cannot cope with being in the Army; yet, he needs sustained and long-lasting treatment. The Army owes him his long term health care. They owe him a VA disability.  The judge understood that.  The Army doesn’t. 

The only thing his command knew to do was to send him to a court martial.  For them, the soldier’s behavior was criminal.  For us, his behavior was a tragedy that needs to be addressed in a healthier way by the military.  Combat is not going to end.  Ignoring PTSD is not going to stop soldiers from experience trauma.