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46 Cards in this Set
- Front
- Back
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Sources of laws
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Civilian, Military & Foriegn
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Constitutional Rights
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Restrictions are permissible within the military
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What restrictions are permissible?
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Speech / Expression
Religious Accommodation Association (Fraternization) Privacy (Sexual – Fraternization, Adultery, Homosexual) Movement (AWOL, Desertion) |
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Rights Soldiers maintain under: ART 31, UCMJ
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- Speech / Expression
- Religious Accommodation - Association (Fraternization) - Privacy (Sexual – Fraternization, Adultery, Homosexual) - Movement (AWOL, Desertion) |
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Rightrs Soldiers maintain, carryover from Constitution
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- Right to an attorney
- Right to be secure in person and things – no unlawful searches - Right to speedy trial – 120 day clock - Right to fair trial - Right to not be subjected to cruel or unusual punishment |
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UCMJ applies to whom?
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All Active Duty Soldiers, All the Time
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Both Civilian and UCMJ Crime
Civil Crime DUI Drugs Murder Rape Larceny Assault |
UCMJ
Art. 111 Art. 112a Art. 118 Art. 120 Art. 121 Art. 128 |
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Civilian Crime – NO; UCMJ Crime – YES:
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AWOL, Disrespect, Contempt, Malingering, Sodomy, Adultery
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Article 134 Offense
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- Prejudicial to Good Order & Discipline in Armed Forces, or
- Of a Nature to Bring Discredit Upon the Armed Forces |
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Trial Defense Service is for?
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The Soldier
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Commander's Inquiry consist of?
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- No Formal Procedure
- Commander Gathers Facts - Decision: Action / No Action - Discuss With Trial Counsel - Recommend Course of Action - Further Investigation (15-6/CID) |
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What is an AR 15-6 Investigation?
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Purpose
Evidence, Findings & Recommendations Subject-Matter Accidental/Civilian Death/Injury, Negligent Discharge, Fraternization, ROE violations, Property Damage/Loss |
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What is the Time Line for a AR 15-6 Investigation?
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1. Incident
2. CDR Appoints Investigating Officer (IO) 3. IO Receives Legal Brief 4. IO Investigates (7-14 Days) 5. Legal Review 6. Submit to Appointing Authority |
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Corrective Training must:
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Be directly related to Deficiency & Oriented to Correct
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Corrective Training must not be:
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Humiliating / Degrading
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Remedial PT for APFT or height/weight failure is OK, True or False
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True
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Forcing Soldier to wear dirty uniform for a week for poor cleanliness and unkempt appearance – NOT OK, True or False
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True
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Bi-hourly check-In for lateness – OK, True or False
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True
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During corrective training the leader should be ________
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Present
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May get Article 13 credit if?
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Granted by a judge after finding of guilty
Time taken off sentence for “punishment tantamount to confinement” |
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Administrative Action is meant to:
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Correct, Train & Educate – NOT Punish
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Forms of Administrative Action:
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- Counseling – DA Form 4856 (Positive & Negative)
- Reason for Counseling, Warn of Separation / Consequences - Withholding Privileges - Privilege ≠ Right – No Due Process - Must be related to the deficiency - Revocation of Security Clearance - Reduction in Rank Flag - Bar to Re-enlistment - Adverse Evaluation – Must be supported by counseling - Separation – Most common error is in counseling |
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Separation Chapter under what AR?
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AR 635-200
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Types of discharges:
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- Uncharacterized
- Administrative - Honorable - General Under Honorable Conditions - Other than Honorable (OTH) - Punitive - Bad Conduct Discharge (BCD) - Dishonorable Discharge (DD) - Dismissal (Officers) - Right to Board: Soldier Has 6 Years or “OTH” Discharge |
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Uncharacterized discharge is an
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Entry Level (180 Days)
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Administrative Discharges are:
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Honorable
General Under Honorable Conditions Other Then Honorable (OTH) |
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Punitive Discharges: Received at Trial
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- Bad Conduct Discharge (BCD)
- Dishonorable Discharge (DD) - Dismissal (Officers) |
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Right to Board:
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Soldier Has 6 Years or “OTH” Discharge
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Non-Judicial Punishment (ART 15) is meant to:
Not a conviction on criminal record Burden of Proof: Beyond a Reasonable Doubt Risk to credibility if you try this without enough proof |
Correct, Educate, Reform
Maintain Discipline |
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An ART 15 is not:
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A conviction on criminal record
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What is Burden of Proof:
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Beyond a Reasonable Doubt
Risk to credibility if you try this without enough proof |
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NJP, ART 15 process:
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1. DA 2627 Prepared by Brigade Paralegal
2. Notification “First Reading” 3. Decision Period - Soldier Referred to Trial Defense Service if it’s Formal Article 15 - Soldier chooses Article 15 or Court Martial 4. Hearing “Second Reading” 5. CDR’s Findings; Punishment Imposed 6. Appeal - Appeal Authority may deny or rescind - Appeal Authority MAY NOT INCREASE PUNISHMENT |
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Punishment under a Summarized Article 15:
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- No Right to Counsel – but often allowed anyway
- Punishment Maximum 14 Days Duty & 14 Days Restriction |
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Max Extra Duty:
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Company Grade: 14
Field Grade: 45 |
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Max Restriction:
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Company Grade: 14
Field Grade: 60* * If Extra Duty Not Part of Adjudicated Punishment |
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Max Reduction (E-1-E4):
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Company Grade: 1 Rank
Field Grade: All Rank - E-5 or 6 – 1 Rank - E-7,8,9 – Nothing |
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Max Forfeiture of pay
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Company Grade: 7 Days
Field Grade: 1/2 Month x 2 Months |
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Pre Trial Confinment must meet certain criteria:
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- Soldier Pending Special or General Court-Martial:
- Reviewed by Military Magistrate Review Within 7 days - Magistrate will consider: - Flight Risk - Likely to Commit Further Misconduct - Lesser Means of Restraint Inadequate - NOT the burden on the unit - NOT to punish |
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Summary Court-Martial
**Summary & Special: Enlisted Only |
- Convened: BN CDR
- Verdict: Officer Detailed by BN CDR – No Federal Conviction - Max Punishment - 30 Days Confinement - 2/3 Forfeiture of Pay for 1 Month - Reduction to E-1 - Bad Conduct Discharge |
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General Court-Martial
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- All Service-Members
- Convened by General Officer - Verdict: Panel of 5+ Officers - Federal Conviction - Punishment - Confinement as Authorized by Law - Death for Capital Crimes - Total Forfeiture of All Pay & Allowances - Reduction to E-1 - Bad Conduct / Dishonorable Discharge (Enlisted) - Dismissal (Officers) |
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Unlawful Command Influence
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- Superior CDR Can’t Order Disposition of UCMJ
- No Inflexible Disposition – Consistency is OK |
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Court Martial Process: 1-3
**Communicate with JAG (Trial Counsel) |
1. Investigation
- Commander’s inquiry - AR 15-6 2. Preferral 1. CDR Recommends Court Martial 2. JAG Drafts Charge Sheet (DD 458) 3. CDR Signs 4. CDR Informs Soldier 5. Soldier Consults with Trial Defense Services 3. Article 32 Investigation – can be waived - Inquiry into Facts, Charges, Disposition |
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Court Martial Process: 4-7
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4. Referral
5. Motions 6. Trial - 120 Days of Preferral / Pre-Trial Confinement 7. Appeal - Army Court of Criminal Appeals - Court of Appeals for Armed Forces - Supreme Court |
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Searches?
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o Require Probable Cause
- Reasonable belief evidence located in place / on person to be searched – Timely & Credible - Can be order by: Impartial CDR, Military Magistrate, Judge - Scope: CDR’s Control, Reasonable Location o Exceptions - Apprehension Search – to preserve evidence and protect apprehender. - Border Searches - Gate Searches - Searches of government property - Consent Search o Voluntary – No Probable Cause – Burden on the searcher o Scope: Limited / Can be withdrawn by Soldier - Plain view – either searching with an authorization or not searching but legally in the area. |
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Inspections?
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o Purpose: Ensure Mission Readiness
- Security, Property Accountability, Health, Welfare, Military Fitness, Good Order & Discipline of Unit o No probable cause required because it is not a search o Subterfuge (Unauthorized Search) - Targeting Soldier - Different Inspection Techniques o Unauthorized Search Finds Contraband? - CONTRABAND SEIZED; NOT ADMISSIBLE |
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Interrogations?
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o Article 31 Rights (Miranda Rights)
o DA Form 3881 (Read / Sign) - Suspect Commission of Crime - Incriminating question o Unsolicited Statements - May be used against the Soldier - Defense is going to argue that the “questioner” knew or should have known that the SCENARIO was likely to elicit discussion of criminal activity. |
