Legal: Military Justice

Published Feb. 1, 2013
By Capt. Angela M. Webb
379th Air Expeditionary Wing

SOUTHWEST ASIA -- Under Uniform Code of Military Justice, commanders have the authority to impose nonjudicial punishment known as Article 15s. Before doing so, commanders rely on the 379th Air Expeditionary Wing legal office's military justice section for their expertise.

"My job is to assist the attorney, along with first sergeants and commanders," said Staff Sgt. Amber Morton, 379th AEW NCOIC of Military Justice. "I will help draft Articles 15 paperwork, assist in reviewing other nonpunitive disciplinary measures (such as letters of reprimand, counseling or admonishment) and answer any questions relating to military justice."

The military justice section does not interact with the individual receiving adverse action or under investigation.

"In most cases, we will coordinate with Security Forces, Office of Special Investigations, and commanders as the investigation progresses," said Capt. Billy Diggs, 379th AEW chief of military justice. "We are the link between all the offices to advise a range of options the commander could take against an Airman; we do not advise the member allegedly at fault."

Individuals may rely on the assistance of the Area Defense Counsel, Diggs explained.

"If you have seen the movie A Few Good Men, the Area Defense Counsel would be Tom Cruise's character, whereas my position would be Kevin Bacon's character," Diggs said. "We are the prosecution office, and they are the defense."

On average, the military justice section deals with 10-15 cases per month. In 2012, the legal office advised in the administration of 85 Article 15s. The most common offenses include failure to obey threshold and alcohol rules.

"We help commanders and first sergeants with various forms of adverse actions, but Article 15s are the most common form we see," Morton said. "We are, however, fully equipped to handle a court-martial if a serious enough case occurred here. We usually see about one or two courts-martial per year but have not had a case go to trial since January 2012."

Many people, often those facing disciplinary action, perceive the military justice section as the "bad guy," but several factors undermine that misconception.

"For whatever reason, the perception of the military justice system is that we are not concerned with the rights of the accused as compared to the treatment a civilian accused of a crime receives," Diggs said. "That is incorrect for many reasons. Three key examples illustrate just the opposite:

First is Article 31 "Miranda" rights: being informed of the right to remain silent, how a statement may be used against you, the right to an attorney and the right to an appointed attorney if you cannot afford one--apply to both civilians and Airmen, but they only go into effect when the accused is taken into custody. Article 31 rights--which require notice of the same rights as provided by Miranda--are an extra level of protection that only Airmen (and not civilians) have. Article 31 rights dictate that a military commander, supervisor or investigator cannot question an Airman suspected of a crime without first informing him or her of the Article 31 rights regardless of whether that Airman is in custody.

Second is how pretrial confinement works. In the civilian world, if a person is accused of a crime, the individual is often immediately arrested, placed in pretrial confinement, and released only on bail or bond after a hearing. The military starts on the complete opposite end of the spectrum: Airmen are presumed to be released on their own recognizance and will only be placed in pretrial confinement at the commander's direction. Even after that, Airmen are entitled to several stages of review of the commander's pretrial confinement order that require the government to show sufficient evidence warrants holding the Airmen in pretrial confinement.

Third is how formal charges are filed. In the civilian world, a grand jury meets behind closed doors to decide whether to charge an individual accused of a felony. Only the prosecutor and grand jury know what evidence is presented and what discussions occur. The individual has no right to attend or have an attorney attend of his or her behalf. Service members accused of a felony in the military have the right to an Article 32 hearing before they are formally charged. A neutral and detached officer will hear all evidence against the accused and write a report recommending whether the individual should be formally charged with each alleged offense.

The accused has a right to be present at the hearing, have an attorney present, and dispute all evidence and charges before even being formally charged. Essentially, the Airman can fight off charges before ever going to court. Nothing in civilian court compares to that opportunity.

Many accused Airmen also believe the military justice section has a set forum or punishment for an offense, but is not the case.

"'X' crime will end with 'Y' punishment is not how we (military justice) conduct business," Diggs said. "We look at all factors and recommend to the commander the most appropriate outcome to properly address the offense and maintain good order and discipline with the least severe impact on the individual."

For more information on the 379th AEW legal office's military justice section, call 437-2707 or e-mail the office at 379aewja@auab.afcent.af.mil.