My client and I have spent the better part of two years fighting a false GOMOR. The underlying facts were always in dispute. There were two Article 15-6 investigations. The IO’s of both investigation interpreted the evidence differently. We appealed to the DASEB and put together an excellent packet. The GOMOR was redacted as asked.
This is a great article on a fight that one of my clients is in with the US Air Force over an erroneous discharge.
The U.S. Army’s quality management program is governed by Army Regulation Active Duty Enlisted Administrative Separations (AR) 635-200, Chapter 19. This program has been at a fever pitch for the last several years. With the Trump Administration, this program may slow down. In the US Army, generally, any adverse action that is found within an enlisted Soldiers record can subject them to being separated under QMP.
Most Soldiers use Legal Assistance on their local Fort/Post to defend the action. Generally, the tactics and techniques used by Legal Assistance are outdated. Their advise will be to create a rebuttal letter the claims responsibility for the actions and lifts up the accomplishments of the Solder. This is a failed tactic. You must decide to fight.
Recently, I’ve had many Soldiers that have been targeted by this program. Our success rate has been extremely high. We approach the rebuttal process differently than most. We challenge the idea that you are not an asset to the US Army and we challenge the underlying allegations (to include DASEB appeals and ABCMR), The attacking approach works best and has the highest success rate.
Recent Sensational Post Story
I represented Jameson Hazelbower at a Courts-Martial at Fort Campbell Kentucky. The Washington Post recently wrote a story on this case. The headline “Suspected rapist goes AWOL; no Army search.” was extremely sensational and inflammatory. The case is old. The conviction took place in May 2015 and Jameson was sent to Fort Leavenworth.
The implication that somehow the military did something wrong by using civilian law enforcement personnel is a bit ludicrous. You need to ask yourself do you want young military MPs searching the country for deserters or AWOL Soldiers? I personally do not.
I think we should let military personnel do what they do best and let law enforcement do what they do best.
For military law discussions, I am willing to talk about your case via www.gotomeeting.com These will be live chats where we can see each other and discuss any military issues you may have. Text me at 931-217-7648 so we can set up a time and I can send you a link.
Like the US Army, the US Air Force has begun to pick up the pace on the prosecution of UCMJ Article 120 cases. I have recently been retained on multiple Air Force cases involving Domestic and Sexual Assault.
The Air Force has been pushing for higher sentences on these types of cases. We are seeing less Chapter 4s (Discharge in Lieu of Courts-Martial). This means more and more trials.
At a recent Fort Campbell, Kentucky Courts-Martial, the goal was no kick and no incarceration of a 22 year Army E-8. The Government brought 25 specifications against my client. They could only prove up 4 minor offense. My client remains in the military with and received a rank reduction and no jail time. To say the least the Government was unhappy.
The next step is to get the rank back.
Military investigators believed they discovered a drug rampant in Africa in the Ethiopia hotel room of a sergeant with the 775th Engineering Detachment from Jackson, TN, but the evidence was never …
This blog was written by Attorney Sean Marvin and can be contacted at: firstname.lastname@example.org
The Appeals Process
Each branch of the military has a criminal appeals court. Those courts review court-martial cases where a Servicemember has been sentenced to any one of the following: Confinement for one year or more, a punitive discharge or dismissal, or death.
Too often, Servicemembers who are facing a court-martial mistakenly believe that things will get better for them once they appeal their case. Yet, most Servicemembers don’t know much about the appeals process. (This even includes many military defense lawyers given that most JAGs never work at the appellate courts and most who do only do so after working as a defense attorney.)
Yet, if you’re facing a court-martial, there are certain things that you should know now, before you even get to trial.
If you plead guilty at trial, you are unlikely to get relief from the appeals court.
A guilty plea in a military court is very different than a guilty plea in most other courts. Military courts want to be sure that a service member who is pleading guilty to a crime actually committed the crime and has no legal defense. Military courts also want to be sure that the service member is pleading guilty voluntarily, and not because he feels like he must do so. (Your commander, the prosecutor, the judge, and your military lawyer may all outrank you but none of them can make you plead guilty.)
Generally, these protections are good aspects of the court-martial system. However, they come with drawbacks that you should be aware of before you agree to plead guilty in a court-martial.
When you plead guilty at a court-martial, you will be required to waive your constitutional right to remain silent. You will be placed under oath and the military judge will ask you all sorts of questions about the charges, why you are guilty of those charges, and whether you are pleading guilty voluntarily. This process not only helps the judge make sure that you are in fact guilty and only pleading guilty because you want to do so—this process also helps the prosecution when it comes time for your appeal.
After your trial is over, the record of trial will be sent to the appeals court and a military appeals lawyer will contact you, unless you hire a civilian lawyer for the appeal. The appeals court will read the transcript of your guilty plea, and see that you, in your own words, described the details of why you’re guilty and that it was your decision to plead guilty. In that situation, your appeals lawyer isn’t normally going to be able to convince the appeals court that you didn’t mean what you said at trial. Your appeals attorney will be left with far fewer arguments to get you relief.
Pleading not guilty but having your case decided by a judge instead of a military panel also limits your ability to get relief from the appeals court.
Courts believe that, because judges are lawyers, judges know the law. When an appeals court reviews a record of a trial and, for example, sees that the prosecutor made arguments that were legally improper and that the defense attorney didn’t object, the appeals court will normally presume that, because judges know the law, your judge understood that the arguments were improper and ignored them.
On the other hand, when you have your case tried by a panel (the military version of a jury), the members of the panel aren’t normally lawyers. Therefore, unlike with judges, appeals courts don’t assume that panel members know the law. When an appeals court sees that a prosecutor was permitted to make an improper argument to a military panel, the appeals court can’t assume that the panel members knew that the argument was improper or that the panel members ignored the argument. The appeals court is more likely to grant you relief.
And this difference is true for all sorts of legal error. Having your case heard by a military panel puts more pressure on the prosecution and the judge to get things right. When you go judge-alone, however, an appeals court will give your judge much more deference, and you will have less ability to successfully appeal.
None of this is to say that a service member should never plead guilty or go judge-alone. Depending on the case, there can be good reasons to do so. But, before you make those decisions, make sure you weigh any benefits of doing so against what you may be giving up should you need to appeal down the road. The presumption of innocence until proven guilty and the ability to have your case decided by a panel of other service members are important rights, which you have fought for. You should not waive those rights without a great deal of thought and legal guidance.