WSBA LAMP Section: Legal Assistance to Military Personnel

08/01/2022

CHAIR’S CORNER
Stephen H. 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.

07/08/2022

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 December 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.

04/06/2022

We're now live on LinkedIn! Please take a moment to connect with our page and share it with your friends and colleagues!

WSBA LAMP Section: Legal Assistance to Military Personnel | WSBA LAMP addresses rendering appropriate and efficient legal service to members of the U.S. Military in Washington. | WSBA LAMP addresses matters related to the rendition of appropriate and efficient legal service to members of the armed f...

02/17/2022

Chair’s Corner
17 February 2022
Vaccine Law in the Military in 2022

Due process of law applies to service members. For example, enlisted members with over 6 years on active duty, and regular commissioned officers with more than 5 years on active duty, you will be entitled to a board to contest your discharge. If one has less than these years, of course, the Soldier or Sailor may submit discharge rebuttal matters in writing, which may include attachments, such as letters from family, friends, colleagues, and anyone else you deem invaluable.

If one qualifies, these Boards will entitle members to call good military character witnesses, including experts, and to offer other convincing retention evidence. The four primary exemptions to imposing the vaccine mandate upon you are (1) religious accommodation; (2) first amendment; (3) lack of informed consent; and (4) medical health reasons. See, Army Directive 2021-33 (Approval and Appeal Authorities for Military Medical and Administrative Immunization Exemptions)

Secretary of the Army Christine Wormuth recently stated "unvaccinated Soldiers present risk to the force and jeopardize readiness. We will begin involuntary separation proceedings for Soldiers who refuse the vaccine order and are not pending a final decision on an exemption." Army Regulation (AR) 600-20, para. 5-4 mandates that the command “[c]ounsel the Soldier [or Officer], in writing, that he or she is legally required to be immunized; that if the Soldier continues to refuse to be immunized that he or she will be legally ordered to do so, and that failure to obey the order may result in UCMJ and/or administrative action for failure to obey a lawful order (UCMJ, Article 92) as deemed appropriate by the commander.”

Article 92, UCMJ is triggered when a service member fails to obey an order or regulation. By analogy, however, when the member is charged with violation of a lawful order, the legality of the order is an “issue of law” that must be decided by the military judge, not the court-martial panel. Article 51(b), UCMJ, 10 U.S.C. § 851(b) (2000); United States v. New, 55 M.J. 95, 105 (C.A.A.F. 2001) As an aside, which will be referenced later, one should still confirm the vaccination was FDA approved at the time it was offered, and presumably rejected. Notably, AR 40-562, which mandates vaccinations, is not punitive, and thus cannot, as presently drafted, support a Article 92, UCMJ violation. See, United States v. BM1 Daly, CGCMS 24437 (2010) Instead, commands will alternatively rely upon AR 600-20 which reads “[i]mmunizations required by AR 40–562 or other legal directive may be given involuntarily.”

Next, let’s drill down on the applicable exceptions to the vaccine mandate. Specifically, Department of Defense (DoD) Instruction 1300.17 “[e]stablishes DoD policy in furtherance of the Free Exercise Clause of the First Amendment to the Constitution of the United States, recognizing that Service members have the right to observe the tenets of their religion, or to observe no religion at all.” The religious tenet here is that both the Pfizer and Moderna cell lines, referred to as “HEK-293” are derived from the kidney of a fetus aborted in the 1970s.

On or about 10 February 2022, the U.S. Air Force granted nine such exceptions to the vaccine mandate based upon religious grounds. Similarly favorable, recently a federal court in USN Seals 1-26 v. Biden, 2022 US Dist. LEXIS 2268, upheld a preliminary injunction against the DoD which prevented several U.S. Navy Seals from being involuntarily discharged. They convincingly averred, and the court found, violations of both the Religious Freedom Restoration Act and the First Amendment. Specifically, these Navy Seals raised “opposition to abortion and the use of fetal cell lines in the development of the vaccine.” Id.

In stark contrast, however, several other federal courts have routinely denied such requests for preliminary injunctions respectfully asserted against the DoD because final action had yet to be taken. See, e.g., Church v. Biden, 2021 US Dist LEXIS 215069. As Church held, the vaccine mandate claims were not ripe. Indeed, despite the anomaly in USN Seals 1-26, this “ripeness” problem will likely repeat as adverse exemption decisions must first be appealed within the DoD apparatus.

Beyond requesting a religious accommodation, or a medical exception based upon myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the lining outside the heart), uniformed members may seek confirmation that the command is not otherwise providing the recipient a non-FDA approved vaccine. For example, the federal court in John Doe #1 # 14 et al v. Austin, 2021 US Dist LEXIS 236327 recently addressed this profound issue. By way of background, the FDA website currently reads:

“Emergency uses of the vaccine have not been approved or licensed by FDA, but have been authorized by FDA, under an Emergency Use Authorization (EUA) to prevent Coronavirus Disease 2019 (COVID 19) in individuals 5 years of age and older.” (emphasis added)

Without getting overly technical, on August 23, 2021,the FDA approved the Pfizer-BioNTech COVID-19 Vaccine (known as Comirnaty) for the prevention of COVID-19. About 5 months later, on January 31, 2022, the FDA then approved the Moderna COVID-19 Vaccine (known as Spikevax) for the prevention of COVID-19. In sum, to be clear, Comirnaty and Spikevax are both FDA approved.

According to news publications and recent court opinions, however, the “purple” capped Pfizer-BioNTech COVID-19 Vaccine in not FDA approved. The court in Austin insightfully discerned, by implication, that the “purple” capped vile contained so-called “excipients” like “coatings, binders and capsules” which “may affect the safety” of the vaccine. See United States v. Generix, 460 US 453 (1983) As a result, it is possible that episodes of myocarditis and pericarditis have been assumingly reported following the administration of this non-approved Pfizer-BioNTech COVID-19 Vaccine. Even so, the Austin court ultimately denied a preliminary injunction against the vaccine mandate, but inexplicably did so without holding a “evidentiary hearing.” As such, a causal nexus between the non-approved vaccine and myocarditis and pericarditis was arguably not properly developed. In short, the litigants (and the courts) will continue to fight it out.

Based upon the apparent use of multiple COVID-19 vaccines (some of which are FDA approved, and others not) commands Army-wide should be rightly obligated to inform uniformed members about the “specific type” of vaccine they intend on administering, or, perhaps more salient here, what explicit vaccine they wanted to give you at the time it was turned down. Again, based on descriptive literature, if the vaccine’s cap was “purple”, it was not FDA approved, while it if was gray, it was FDA-approved. As such, any clarification request, is merely required as part of “informed-consent” under 21 U.S.C. § 360bbb-3(e)(1)(A).

Additionally, the U.S. Supreme Court has coincidingly yet to issue a full opinion on the matter of mandating vaccines, the winds do subtly suggest that requiring federal employees either to get vaccinated or undergo weekly COVID-19 tests, and wear face masks, may presumably go too far in the plurality of these justices’ eyes. National Fed. of Independent Businesses v. Department of Labor, 211 L.Ed. 2d 448 In sum, National Fed. held OSHA could not mandate that certain employees vaccinate, as to do so, exceeded its statutory authority.

02/17/2022

Chair’s Corner
17 February 2022
Changes to the Uniform Code of Military Justice

In 2022, historic changes are anticipated in the realm of military justice. Indeed, one wonders how Groucho Marx’s old joke that “military justice is to justice, as military music is to music” will play out in our military courts. Perhaps most predominant amongst these potential changes will be a future U.S. Supreme Court decision which could profoundly shape courts-martial verdicts for decades to come. In short, a military judge here in Germany recently granted a defense request ICO United States v. LTC Andrew Dial to require panel (“jury”) unanimity as the condition precedent to conviction. As a result, a “interlocutory” government appeal is now meandering the lower appellate service courts, where it will next dock before the Army Court of Criminal Appeals. (ACCA)

The Court of Appeals for the Armed Forces (CAAF) will thereafter consider the ACCA holding, issue its own opinion, which will thereafter be painstakingly scrutinized by the U.S. Supreme Court. The eventual outcomes before ACCA and CAAF may arguably favor LTC Dial as our nation's highest court has held “[t]his Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.” Ramos v. Louisiana, 140 S. Ct 1390 (2020)

To be clear, under the Uniform Code of Military Justice (UCMJ), a two-thirds vote is currently required before an accused may be convicted in a court-martial. For instance, in a General Court-martial, merely 6 of the 8 panel members must agree about the “Guilt” of the accused to convict the service member. In other words, 2 of its 8 members may ultimately decide the accused is “Not Guilty” of the charge, and yet, a conviction will nevertheless result. In this sense, it is assuredly an interesting question as to why (ever since the creation of the UCMJ in May 31,1950) scores of military accused have been convicted of federal crimes while their civilian counterparts, faced with “hung” (nonunanimous) jury verdicts, have not.

Even more troubling, in a Special Court-martial, military prosecutors must only convince 4 of the 6 panel members to convict a accused. In other words, a defense lawyer must convince 3 of the 6 panel members to obtain an acquittal, as anything short of one-half of the members will result in conviction.

Finally, without the possibility of a “hung” jury, service members are automatically “fully acquitted” in courts-martial if the prosecutor fails to convince the required two-thirds of its members of guilt. Meanwhile, criminally tried civilian defendants may be re-prosecuted.

Ultimately, Soldiers, Marines, Airmen and Sailors should arguably be given the benefit of the doubt, as they, and they alone, are susceptible to paying the highest cost. The broader question is whether instituting “hung” verdicts in military jurisprudence will merely serve, if you will, as a harbinger for the usurpation of the entirety of the military criminal (and disciplinary) system by a civilian leadership arguably inexperienced with its essential goals, missions, and the peculiarities of military life.

02/17/2022

Chair’s Corner
10 February 2022
The New Sexual Assault Victim Exception to “Line of Duty Investigations”

Earlier this month “military sexual trauma” (MST) was arguably identified as one of most troubling mental health ailments that a uniformed member may confront. Specifically, on 7 February 2022, the Secretary of the Army issued a broadly impactful directive allowing civilians (former Soldiers) to retrospectively request Line of Duty (LOD) Investigations. In other words, all former service members are now legally entitled to request the active-duty Sexual Assault Response Coordinator (SARC) to spearhead an investigation. In “founded” cases, such victims can receive a 70% disability rating, which is approximately $1,529 per month. This newly promulgated active-duty involvement will arguably significantly increase the speed by which such claims (arguably sidesteps the VA) are resolved.

In a nutshell, Army Directive 2022-04 amends Army Regulation (AR) 600-8-4, para. 2-2, which, according to the Secretary, failed to “clearly prescribe[]” the law. (emphasis added) Before this change AR 600-8-4, para. 2, had prohibited such former victims from requesting SARC involvement. Now the SARC must investigate, coordinate and then ultimately complete a Department of Army (DA) Form 2173 regarding whether a sexual assault occurred, even if the triggering incident occurred many years ago. Continuing on, the prior restrictive regulation read:

“At no time will an LOD be initiated, regardless of the circumstance(s), for a Soldier not in an authorized duty status at the time of injury, illness, disease, or death. A Soldier must be in an authorized duty status, as determined by the unit commander, before an LOD can be initiated.” Id. at para. 2-2

Despite the Secretary of the Army characterizing this old law as essentially “unclear,” what is clear, now, is victims of sexual assault have presently been given a powerful conduit to seek financial remedies by use of the active duty component. The key, if you will, to the active duty side, has now been handed over, it reads:

“When a victim of sexual assault develops a condition of lasting significance and requires continued treatment while not in an active-duty status, an LOD determination is required. All sexual assault LOD requests will be initiated by the Sexual Assault Response Coordinator (SARC)….” Army Directive 2022-04, para. 5(b)(emphasis added)

As a direct result of this language, U.S. Army leadership, SARCs, and medical professionals can now be tasked to assess whether such “cold cases” warrant relief. (emphasis added) Notably, however, this new opportunity for relief does not relate to anyone other than sexual assault victims. For instance, Army Directive 2022-04 does not provide Army combat veterans with the opportunity to request such an active duty LOD. Thus, no matter what one may think about the propriety of the Secretary’s recent actions, if this “sexual assault” exception is made, surly combat veterans that suffer from the mental health issues must likewise deserve the right to request active duty support. In short, the Secretary of the Army could consider everyone that suffers from mental health problems post-separation, and not exclusively sexual assault victims.

01/25/2022

Chair’s Corner

Stephen Carpenter, Jr.
Chair, LAMP

Jan. 25, 2022

Happy New Year! In 2022, historic changes are again anticipated in the realm of military justice. Indeed, one can only further hope Groucho Marx’s enduring comment that “military justice is to justice, as military music is to music” does not inadvertently take root. Amongst all the upcoming changes, which are considerable, will perhaps reign a future U.S. Supreme Court decision, which will, if you will, set the rhythm of the military justice drums for decades to come. In short, this month a military judge in Kaiserslautern, Germany granted a defense request in United States v. LTC Andrew Dial to require panel (“jury”) unanimity before conviction.

This extraordinary interlocutory appeal will next dock before the Army Court of Criminal Appeals. (ACCA) The Court of Appeals for the Armed Forces (CAAF) will thereafter consider the ACCA opinion, and issue its own ruling, to set the stage for cert. to be presumably granted. The outcomes before each of these courts may tentatively favor LTC Dial because Supreme Court previously held “[t]his Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.” Ramos v. Louisiana, 140 S. Ct 1390 (2020) In essence, it is an intellectual curiosity as to why, since the founding of the UCMJ in May 31,1950, uniformed members, unlike civilians, have been convicted of federal crimes while civilian defendants have simply been released to arguably go about their lives after the announcement of “hung jury” verdicts.

Specifically, under the UCMJ, a two-thirds vote is required before someone may be convicted in a court-martial. Putting color to this canvass, in a General Court-martial merely 6 of its 8 panel members must concur on guilt to convict an accused. By implication, 2 of 8 members may believe the accused “Not Guilty” of the charges and specifications, however, a conviction will nevertheless result.

Equally profound, in less serious cases akin to misdemeanor offenses, an accused may stand trial in a Special Court-martial, where military prosecutors are presently required to convince 4 of the 6 panel members to secure a conviction. In other words, despite Ramos, a military defense lawyer must currently convince 3 of the 6 panel members to obtain an acquittal, as anything short of one-half of the members will result in a life-changing court-martial conviction.

Finally, as many of our practitioners readily know, without any possibility of a “hung jury” in a court-martial, servicemembers are, therefore, automatically “fully acquitted” in courts-martial if the prosecutor fails to convince the required two-thirds of guilt. In contrast, civilian defendants may be retried. It is this overarching tension for “justice” that may have some unexpected implications upon, not only the Department of Defense’s value of, and fidelity to operational finality, but an accused’s right to the constitutional justice for which he or she has selflessly sworn a life to protect.

12/06/2021

CHANGE IN SCHEDULE

This Thursday, December 9, there will NOT be a Section General Meeting or Mini-CLE. The Section will be holding its Executive Committee Virtual Zoom Meeting at 3 p.m. A link will follow later this week.

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.

Thursday, March 10, 2022, 11 a.m. followed by Mini-CLE at 12:30 p.m.

Thursday, June 9, 2022, 11 a.m. followed by Mini-CLE at 12:30 p.m.

Thursday, Sept. 8, 2022, 11 a.m. followed by Mini-CLE at 12:30 p.m.

Thursday, Dec. 8, 2022, 11 a.m. followed by Mini-CLE at 12:30 p.m.

11/22/2021

CHAIR’S CORNER - Nov. 22, 2021

Veterans Day was originally named in recognition of Armistice Day which ended the hostilities of World War I. Specifically, the German surrender occurred in 1918, on the eleventh hour, of the eleventh day, of the eleventh month. The Treaty of Versailles was signed about 7 months after the guns had fallen silent.

In 1954, Congress commemorated our efforts in the Korean War by replacing Armistice Day with Veterans Day, which recognized servicemembers in all Wars, and not merely World War I. It is curious that this semantic, albeit fundamental change, did not occur as a direct result of World War II. Again, the memories of the Korean conflict spurred the change. Finally, in 1975, President Gerald Ford signed Public Law 94-97 which replaced 25 October with 11 November as our nation’s new Veterans Day.

Beyond this background, let’s be clear on why we celebrate Veterans. There is no question that each of our Veterans is intrinsically invaluable to our system of government. Their collective presence in our lives, protecting our way of life, is fundamental to our freedom, and, indeed, our very existence as a nation. In this sense, “everyday” reigns as Veterans Day. When you next see men and women in uniform, kindly remind them, please, about how much your freedom matters.

— Stephen Carpenter, Jr., LAMP Section Chair