The life-long harm of an Other Than Honorable Discharge

The number of servicemembers that receive an Other Than Honorable Discharge (OTH) without fully exercising their rights and resources to ensure a better discharge is truly staggering. Most servicemembers fail to exercise every right and resource at their disposal because they fail to realize the long term harm of an OTH and how difficult it is to upgrade most discharges. Unfortunately, some inexperienced military attorneys will recommend clients accept an OTH because they themselves do not realize the harm it causes. Other military attorneys sometimes recommend it because they don’t have the time to properly fight the client’s case.

An OTH deprives the servicemember of almost all possible VA benefits. These benefits range from educational ones such as the GI Bill to medical benefits such as disability payments and free or reduced cost health care to financial benefits such as VA home loans. Depending on what benefits a servicemember may be eligible for, an OTH can cost as much as hundreds of thousands of dollars in benefits over the person’s life span.

The negative impacts of the OTH don’t end there. An OTH also limits future employment. I receive calls every week from servicemembers who received an OTH and who are having difficulty getting a job in a chosen career field years after the discharge. An OTH not only makes future military service in another branch unlikely, it also makes getting any government job difficult. It also makes it difficult to work in any law enforcement capacity, and it can even affect a person’s ability to get jobs in education, medicine, or technological fields. Many technical jobs involve working for government contractors that require security clearances. An OTH has a significant negative impact on an application for a security clearance. I have received calls from people that received an OTH over a decade ago and eventually went to college and received advanced technical degrees but who are now unable to secure most jobs in their fields because of the OTH.

Although an OTH can be upgraded, it is a long and arduous process that is usually unsuccessful. Servicemembers have a much better chance of preventing an OTH rather than upgrading from one. If you have received an OTH, definitely talk to an attorney about getting it upgraded, but understand that an ounce of prevention is worth a pound of cure is this area.

A couple common mistakes that are easily fixed can help prevent many OTHs. First, it is almost never wise to waive an administrative discharge board. If you receive notification that the military is attempting to separate you, talk to an attorney immediately before signing any paperwork. Even if you think you will get the OTH anyway, don’t waive the board. There is almost never anything to lose by having a board. I have personally represented servicemembers who received something better than an OTH in cases ranging from drugs to DUIs to sexual assaults to state felony convictions to patterns of misconduct that included dozens of incidents.

Secondly, think long and hard before accepting a Separation in Lieu of Trial (SILT) which normally results in an OTH. There are cases were a SILT may be a good deal for a client, but many clients accept them in cases where they could easily have won. The military frequently overcharges minor misconduct in hope of bullying servicemembers into taking a SILT. Always talk to an experienced attorney before accepting a SILT because of the serious implications of the OTH.

Lastly, always aggressively present evidence in your favor at a separation board. This not only includes evidence that you did not commit the act or acts alleged but also any and all evidence of good things you have done both in and out of the military and of your good character. Most people can find a significant number of people to say at least something positive about them. These people can include not only people you have served with but friends, family, teachers, ministers, and anyone else that may have known you at one time. Many servicemembers receive an OTH simply because they do not put their best effort into fighting their case. If your military attorney is not experienced and is not taking the time to help you do all you can to win, find someone who will zealously represent your interests.

An OTH may not always be avoidable but if servicemembers know and exercise their rights they can often secure a more favorable discharge.

Defense investigators

Service members facing courts martial are often choosing to hire a private investigator to assist them in their defense. This is a relatively new development in military law. In large part the increase is due to the fact that, more often than ever, military investigators are investigating with the goal of finding evidence against their suspect instead of investigating to find the truth. Perhaps the area were this type of investigating is most noticeable is in rape cases where investigators often will not look for evidence to suggest that the alleged victim is not really a victim at all. However, in all types of cases potentially exculpatory evidence is either deliberately ignored or simply not developed.
A defense investigator is a valuable asset to a defense team because the investigator is able to search for and develop ignored or missed exculpatory evidence. In a perfect world, this would not be necessary, but more and more often defense investigators are conducting their own investigations and discovering evidence that the military did not. Sometimes this evidence changes the outcome of a case.
When looking for an investigator for a military case, it is important to find someone that has experience with the military. The military has a lot of unique ways of doing things and someone that is not familiar with the military may miss things. It also tends to help if the investigator was in the military. Service members are often more open to veterans than they are to people who have never served. It is important to talk to your attorney about hiring an investigator as well. Any experienced criminal attorney will know some good investigators and the attorney and the investigator must be able to work together well to provide the best possible defense.

United States v. Denedo

The Supreme Court just issued an opinion in United States v. Denedo that could have a substantial impact on the military justice system. Denedo was originally from Africa and, upon coming to America, enlisted in the US Navy. He was later court martialed. He pleaded guilty at his court martial, but according to him, only after his attorney assured him that he could not be deported for his court martial conviction. After his trial, the US did take steps to deport Denedo. Denedo’s appeal of his court martial had already been completed and his conviction upheld when the government began deportation proceedings against him.
Upon being served notice that the US intended to deport him, Denedo filed a petition with the Navy-Marine Corps Court of Criminal Appeals asking the court to overturn his conviction due to ineffective assistance of counsel. He argued that had his attorney properly advised him that a conviction could result in his deportation, he never would have agreed to plead guilty.
The Navy argued that the appellate court did not have jurisdiction to set aside Denedo’s conviction since the case had already been affirmed on appeal. Denedo’s case eventually made it all the way to the Supreme Court. The Supreme Court held that the military appellate courts, to include the Navy-Marine Corps Court of Criminal Appeals, have the authority to review cases even after the original appeals process has completed.
Denedo’s case now will go back to the Navy-Marine Corps Court of Criminal Appeals. This doesn’t mean that he has won and that his conviction will be overturned, only that he will be given the opportunity to argue that his conviction should be overturned. He still has an uphill battle as it is difficult to win ineffective assistance of counsel claims (which is part of the reason that it is so important to hire a good attorney from the start of the case.) This is a significant case because it will allow other service members to challenge their court martial convictions, even after the appeals process has been completed. I would anticipate that very few cases will ever be overturned on further review, but this does give service members another opportunity to appeal their convictions. The ruling will apply to both guilty plea cases and to cases where there was a trial. I believe that most appeals will come from guilty plea cases, like Denedo’s, though, where the accused pleaded guilty and did not present a rigorous appeal until he later learned of some of the consequences of his conviction and guilty plea.

Recruiter hides applicant's autism

The Marine Corps is once again in the news because of dishonest recruiting practices. A Marine fresh out of boot camp is currently being held at the Camp Pendleton brig and is facing charges of child pornography and unauthorized absence. There would be nothing noteworthy about his case except that he has autism. Not only does he have autism, but he is the subject of a court order placing him under a limited conservatorship which, among other things, bars him from entering into contracts.
So how did someone in his condition get accepted into the Marine Corps? The Marine’s defense counsel claims that he got in because his recruiter hid his condition. Unfortunately, it is a somewhat common practice for Marine recruiters to cover up potentially disqualifying information about prospective applicants. I have had many Marine recruiters come to me for legal counsel about what to do now that they have found themselves in a situation where they covered up information that they fear will soon come out, and I have represented other recruiters that the Marine Corps has taken adverse action against.
This problem persists because of the quotas that the Marine Corps places on recruiters. Recruiters are expected to sign a certain number of perspective applicants each month. If the recruiter fails, the Marine Corps can take adverse action against him which can cost him promotions or even his career. Most Marines are not used to failing at a task and they certainly don’t want to face adverse consequences for failing in their missions. Unfortunately, this is causing some to cut corners, and the easiest way to do this is to take those who want to join the Corps but are unqualified to join and to cover up the issues that make them unqualified. This results in things like helping applicants cheat on the ASVAB, telling the applicant to report that he used drugs fewer times than he actually did to make it easier to get him a waiver to join, and even covering up medical or mental conditions. This problem is only made worse by the fact that the Marine Corps is currently expanding and so needs even more applicants than normal.
There is no quick fix to this problem either. Perhaps if the Marine Corps wasn’t so hard on good Marines that simply aren’t good recruiters it would help. Perhaps if there was stricter supervision over recruiters there wouldn’t be as many incidents where recruiters help unqualified applicants gain entrance. But, at the end of the day, there will always be unqualified applicants that want in and there will always be some recruiters that will help them get in for whatever reason.
Another interesting question that this particular case poses is how did this Marine with autism graduate from boot camp? I was stationed at MCRD San Diego, where this Marine graduated. I often heard senior enlisted Marines and retired enlisted Marines say that boot camp simply is not near as hard as it was even a decade or two ago. I am sure that this case will give them even more ammunition for that argument.

Waiver of Appellate Issues

I am constantly surprised at how many service members plead guilty at a court martial without realizing the affect that the guilty pleas has on their ability to appeal their court martial conviction. I am frequently contacted by people wanting to appeal their court martial conviction after they pleaded guilty at trial. Many of these people even have good appellate issues. Unfortunately, most guilty pleas waive (legal term meaning to give up a right, in this case the right to have an appellate review) most appellate issues. These situations often arise when a crucial piece of government’s evidence was possibly obtained illegally, such as a search without a warrant or a confession that was taken without informing the accused of his rights. The accused then seeks to have that evidence suppressed at a motions hearing. In many cases after the accused loses the motion, he pleads guilty. What many don’t realize is that they are waiving their right to have the appellate court examine the issue that the military judge ruled on.
It is impossible to make an informed decision without having all the facts. If you are considering pleading guilty, be sure to discuss how that plea will affect your ability to appeal your case. Know what rulings have been made in your case and discuss the possibility of those rulings being reversed on appeal and be certain that you clearly understand whether your guilty plea will waive those issues.
Sometimes, the best course of action is to plead guilty, even if it means waiving appellate issues. But when an accused proceeds without discussing the facts and the law with his attorney, he may end up taking a deal that he will regret the rest of his life.

PTSD

The tragic shootings at a stress center at Camp Liberty, Iraq have once against put Post Traumatic Stress Disorder (PTSD) in the news. Details have not emerged yet as to whether the shooter was suffering from PTSD, but a significant number of service members do struggle with PTSD. As the years that the United States has been in Iraq and Afghanistan have gone by, more and more clients that I have represented have had PTSD. Some of these clients have found themselves at a court martial; others have been the subject of negative administrative action.
So the question becomes, why do so many military members with PTSD find themselves in trouble? Certainly part of it is due to the increase in the total number of PTSD cases in the military. A certain percentage of the military is always going to be in trouble and the higher the percentage of the military has PTSD it stands to reason that there will be more service members in trouble with PTSD.
However, just the increase in the total number of PTSD cases in the military does not adequately explain the reason so many service members with PTSD are being sent to a court martial. PTSD can make people irritable and impulsive. Certainly if those in the military act on those impulses or are getting in fights or being disrespectful because they are irritable, that can cause them to be sent to a court martial. But the single biggest reason, in my opinion, is that these individuals tend to try to self medicate themselves. They turn to alcohol or drugs to try to make them feel better, to try to sleep, and to try to forget the horrors of what they saw. Of course, if the service member then tests positive for drugs on a urinalysis, he will be sent to a court martial or be processed for administrative separation. The worse problem, thought, is that many of them when under the effects of the alcohol or drugs will do things that they would not ordinarily do. PTSD and drugs or alcohol is a combination that has ruined many a service member’s career and even life. The drugs and alcohol can make the irritability and impulsiveness worse and they find themselves committing serious criminal acts that they never would have committed if sober.
So what can a service member with PTSD do? The most important thing is to get professional help. Unfortunately, many see this as a sign of weakness. It is not. Others fear that it will impact their career. It is not supposed to, but if you are concerned that it may, talk to an attorney about it. When someone breaks a bone, they get professional help and they don’t feel bad about needing it. Mental injuries should be handled no differently.