Posts Tagged ‘court martial’

Military DUI: FAQ’s For Active Duty Soldiers Who Face A DUI Charge

September 6th, 2013

military duiIf you are an active duty soldier and receive a military DUI (drunk driving) charge, you may face civilian DUI penalties or military DUI punishment.  This article will describe what military penalties are available and under what circumstances they are invoked. For information about DUI in the civilian courts, click on the appropriate category of the Ohio DUI Blog.

Who Will Prosecute My Military DUI?

The overwhelming number of DUI cases will be prosecuted in the civilian courts and the military authorities will not seek jurisdiction. Punishment under the Uniformed Code of Military Justice (court martial/Article 15s) is not available to the military if the civilian authorities are prosecuting your DUI case.  This is true even if your DUI case gets dismissed or reduced.  If you are facing a DUI charge and the civilian court takes your case you could theoretically face charges for crimes that the civilian authorities choose not to prosecute, but this almost never happens.

As with other aspects of a DUI case, make sure you hire an attorney who has some experience and can guide you through the civilian process.  It may become necessary for your  DUI attorney to handle your case in such a manner so as to assure civilian prosecution.  Other times it may be advantageous to have the military take jurisdiction.  Either way, you need an attorney with enough foresight to see the issues and enough gravitas to work with the proper authorities to seek relief.  At DaytonDUI, we have a former J.A.G. on staff and have represented soldiers and civilian employees since 1995.  We are located adjacent to Wright-Patterson Air Force Base in Fairborn, Ohio.  Charles M. Rowland II has testified as an expert witness in evidential breath testing for the United States in DUI court martial proceedings and has served as a city prosecutor responsible for handling DUI prosecutions.  He regularly appears in the United States District Court (DUIs on federal property) and in all Ohio civilian court jurisdictions on behalf of the accused soldier.  He is uniquely positioned to help.

Where Should I Go For Help?

If you have been charged with a DUI, your first stop should be your military area defense counsel (ADC).  The ADC will provide you confidential advice and can work with your civilian DUI defense attorney.  They usually have a good sense as to how the local court handles OVI matters and can help you from the military standpoint as well.  You should talk with ADC even if you have a civilian attorney as they can prepare you for any administrative action that the military imposes in drunk driving cases.  If the military takes jurisdiction of your DUI case and proceeds under Article 15, you are entitled to free representation via the Area Defense Counsel.  If you choose, you can have a civilian attorney represent you, but this will be at your own expense.  The ADC cannot represent you in civilian court. A great web resource is Military One Stop [Here], which provides information on military DUI and provided valuable information for this military DUI article.

To hire civilian counsel, contact Charles M. Rowland and read, “How to Hire A DUI Attorney.”

What Military DUI Punishments Are Available?

There are two forms of punishments that you may face if the military takes jurisdiction of your case.  The first group are UCMJ proceedings and include Non-Judicial Punishment (NJP) and Judicial Punishment (Court Martials).  The second group of punishments are Administrative Actions.

Commanders can levy NJP to soldiers under Article 15 of the UCMJ (Note: The Air Force and Army call these actions “Article 15s,” whereas the Navy and Coast Guard call the action a “Captain’s Mast” or “Mast” and the Marine Corps calls the action “Office Hours.”)  Under NJP, commanders can make an inquiry into the facts surrounding the offenses allegedly committed, afford the accused a hearing, and either dismiss the charges, impose punishment under the provisions of Article 15, or refer the case to a court-martial. Under NJP, commanding officers can punish you through a variety of mechanisms, usually dependent on the nature of the offense. These can include an official reprimand, extra duty, restriction to limits, forfeiture of pay, and reduction of grade. Id.  If you are stopped on the installation, or the civilian authorities are not prosecuting you, you can still receive a court-martial for a military DUI under Article 111 of the UCMJ. Article 111 specifically states that any person who operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired shall be punished as a court-martial may direct. Punishments related to court-marital can include forfeiture of pay, reduction in grade, confinement, and dismissal from the military.

What Administrative Actions Are Available?

So your DUI (drunk driving) case has been prosecuted in the civilian courts.  Can the military still take action against you?  Unfortunately, they can.  These actions can include:

  • Letter of Reprimand. A letter of reprimand is a formal document from your superior (usually a general officer) that details your wrongful actions and the punishment that can be expected. Although letters of reprimand are less severe than a court-martial, they can be career-ending as the letter remains in your record and can have adverse effects on your ability to receive a promotion.
  • Revocation of pass privileges. Your commander can revoke your ability to go on leave. If you are being charged by civilian authorities, this usually lasts until the civilian court proceedings are complete. If you are facing military punitive actions, this denial of leave typically lasts until your UCMJ punishments are served and complete.
  • Mandatory referral to a substance abuse treatment program. Your commander can mandate that you enroll in and complete a substance abuse treatment program through your branch of Service’s respective program.
  • Corrective training. Your commander may require corrective training if he/she believes you would benefit from additional instruction or practice in a particular area. This training is designed to correct deficiencies and eliminate the need for formal disciplinary measures in the future.
  • Administrative reduction in grade. Depending on your situation and your rank, your commander can reduce your grade. The rank of the commander who may approve an administrative reduction in grade depends on your rank.
  • Bar to reenlistment. A bar to reenlistment is a procedure that commanders may use to deny you the opportunity to reenlist after your current service is complete. This procedure is used for those whose immediate separation is not warranted, but whose reenlistment is not in the best interest of the military.

To learn more about you military DUI case, contact Charles M. Rowland for a free consultation.  Ohio DUI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Find city-specific Military DUI information at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

Prior DUI Offenses (Federal and Out-of-State)

August 30th, 2012

My practice is proud to serve the military community in and around Wright-Patterson Air Force Base.  One of the recurring questions we get from military personnel is whether or not a federal or out-of-state DUI can be used to enhance a DUI they get here in Ohio.  At one time they did not.  Now, however, the offenses received in another state or on federal property do count. See Ohio Revised Code 4511.181(A).  DUI defense attorneys challenged the ex post facto application of R.C. 4511.181(A) but the courts have held that since it serves only as an enhancement it meets constitutional standards. State v. Morrison, 2003-Ohio-3244 (Ohio Ct. App. 8th Dist. Cuyahoga County 2003).

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for DUI defense.  With a former J.A.G. on staff and having been declared an expert on evidential breath testing in court martial proceedings by the United States, Charles Rowland is uniquely able to defend your DUI case.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

 

Military DUI: Must I Self-Report? by Richard T. Brown USAF Judge Advocate (ret)

October 31st, 2011

United States Court of Appeals for the Armed F...

One Strike and You’re OUT. An Update on the Self-Reporting Requirement. 

The military has always been the employer of last resort.  When the economy is good the military is hard pressed to meet recruitment.  When the economy is bad the military can and does get very picky.  Today the civilian authorities seem to agree that the best place to cut federal spending is the military.  Force reduction has been policy in the past and will be again in the future.  The self-reporting requirement is a force management tool.

For the individual member the best advice is not to self- report.  As a practical matter it is unlikely any service would Court Martial any member for failing to self report a previous arrest or conviction as the only charge.  Much more likely the violation would be charged along with a laundry list of other, and most likely aggravated offenses.   By self-reporting the member starts  the machinery to  be possibly separated administratively.  Once the Commander is advised of the misconduct under regulation he must at least consider the member for separation.  Marginal members will be separated but there is even significant pressure on the Commander to separate even stellar performers.

I still believe that self reporting violates Article 31 UCMJ. But the effect is the same, without advisement no one subject to the code can order a military member to statements of self incrimination. The CAFF specifically refused to decide Serianne on Constitutional grounds. This leaves an issue as to whether the self reporting regulation does violate Article 31, UCMJ.  The Navy has rewritten its regulation to eliminate the vagueness sited by the Navy Court of Criminal Appeals.  I believe if the services continue to right regulations requiring self-reporting eventually the court will have to rule on constitutional grounds. Id. at 584-85.

“CAAF noted that NMCCA “described Article 1137 as ‘superior competent authority’ over the Instruction, and further described the reporting requirement in the Instruction as ‘inconsistent’ with the exclusion provided in higher authority, the United States Navy Regulations.” CAAF agreed, noting:

The lower court’s description of Article 1137 as “superior competent authority” is consistent with Article 0103 of the United States Navy Regulations, which states that the United States Navy Regulations serve as “the principal regulatory document of the Department of the Navy,” and specifically states that “[o]there directives issued within the Department of the Navy shall not conflict with, alter or amend any provision of Navy Regulations.”” …

CAAF held:  “The self-reporting requirement in the Instruction did not provide Appellee with the rights afforded by a superior competent authority, Article 1137. As such, the Instruction did not provide a legal basis for finding Appellee derelict in the performance of a required duty, and the military judge did not err in dismissing the charge.”

Richard T. Brown, USAF Judge Advocate (ret) is “of counsel” at Brown, Rowland, Babb & Campbell in Fairborn, Ohio.  He concentrates his practice in the field of Elder Law and consults on military issues related to family, criminal and juvenile law.  Richard Brown is a regular contributor to the OhioDUIblog.com.  Contact Richard Brown at (937) 879-9542 or visit www.DaytonEstatePlanningProbate.com.