An Air Force General recently ignited a firestorm of criticism when he used his powers under Article 60 of the Uniform Code of Military Justice (UCMJ), to vacate the sexual assault conviction of a Lieutenant Colonel. The media has excoriated that General and bills to modify Article 60 have been introduced in Congress.
A recent study showed a sharp increase in estimated military sexual assaults. Few of those allegations were reported and even fewer resulted in courts-martial. What has gotten lost in the conflagration of criticism, is that many accusations are false. Allegations cannot be accepted at face value but must be throughly and completely investigated. Curtailing Art. 60 powers will not solve the sexual assault problem but may lead to more false reports. The commander’s authority is not the problem. If it is abused the commander can and should be disciplined. The problem is that sexual assault cases often lack physical evidence or witnesses. These "he said-she said" cases should be completely investigated at an Article 32 investigation, the military equivalent of a grand jury.
Strengthening the Article 32 investigation process is the key to encouraging the reporting of legitimate sexual assault cases. Only experienced judge advocates, who have served as both a prosecutor and defense counsel should be assigned as Investigating Officers. Fact finding will be conducted in a more informal and relaxed setting. Most of the rules of evidence do not apply. A victim can testify by video teleconferencing or telephone. Faced with a strong case against him, a guilty person will be more likely to plead, thus sparing the victim an arduous trial and cross-examination.
The Article 32 also protects the rights of the accused. Unlike a grand jury, the accused or his counsel cross-examines witnesses and presents evidence. However, an Article 32, until recently, had no subpoena powers and its decision is not binding. The Army even assigns non lawyers to conduct the proceeding. If probable cause is not found that finding should be binding.
There is a significant difference between a military and civilian trial. Most people do not realize that Court-Martial panel members are not randomly selected but are appointed by the commander. Instead of twelve members, there can be as few as three for a Special and five for a General Court-Martial. Attorneys are only allowed one peremptory challenge and it takes only a two-thirds vote of the panel to convict. Of course, these panel members are often susceptible to command influence. The commander's Art. 60 powers are used to off set some of these government friendly regulations.
The commander plays an important role in ensuring the integrity of the military justice system. Senator Kirsten Gillibrand recently asked why the Article 60 authority promotes good order and discipline. The short answer is that it acts as a safety valve. Though seldom used, it enhances faith and confidence in a system often criticized as arbitrary and unfair. After a conviction, the commander must review and consider the record of trial and the advice of his lawyer, known as the staff judge advocate. He may consider evidence not admitted at trial and clemency requests. He must be convinced beyond a reasonable doubt that the accused is guilty. Setting aside a conviction is very rare and is never done frivolously. But it is an important review designed to balance inequities between the military and civilian justice system.
Unfortunately, the statements of the President, the Secretary of Defense and various lawmakers are having a chilling effect. Commanders are now less likely to set aside convictions, even when warranted, for fear of criticism or negative effects on their own careers. Senator McCaskill recently put a hold on the nomination of a female commander who had also set aside a sexual assault conviction, to be Vice Commander of the U. S. Space Command.
A failure to discipline those who assault women is unacceptable. In ensuring the guilty are disciplined, however, we cannot send innocent men to prison. Sexual abuse allegations must be taken seriously but they cannot become the subject of a witch hunt. The focus should be on finding the truth and not on promoting a social or political agenda.
Two very important anniversaries occurred this November. The first, occurring onNovember 6, was the 57th Presidential election. The second, which helped make the first possible, is the 93rd observance of Veterans Day. Today I read numerous emails from politicians and other public officials of every stripe, party and ideology praising efforts of our veterans. Public officials and citizens alike will often take some time to recognize and honor veterans. Recently, the words "Thank you for your service" have come to warm the cockles of many veterans, young and old. Unfortunately, the actions of our government do not always echo the warm words. The government promises to not leave us behind, many veterans have trouble catching up.
I have worked in VA law since before I came an attorney, taking my own case up to the Supreme Court of the United States. My frustration with the VA and with the veterans law system was part of the reason why I became an attorney. A system that advertises itself as non adversarial and paternal is instead confrontational and dismissive. Bureaucracy has replaced benevolence and it seems that many in government consider veterans an interruption fo their work rather than the reason for it.
When I was up in Washington this past September I had the opportunity to meet with the staff members from the House and Senate Veterans Committee. I challenged them to call the toll free veterans hotline and see how long it took to get an answer. My advice to them was to put the phone on speaker and continue their work because they would wait a very long time for an answer. My average wait time is 90 minutes. Many of you have certainly waited longer. I will be back in DC next week and will look forward to asking them about that experience or whether they even tried it.
The veterans hotline, or perhaps I should say cold line, – you can die of old age waiting for an answer – is one symptom of the problem Backlogs are increasing. When I first filed a claim took six months to resolve. My last request for a reassessment is at eleven months and counting. We have continued to throw money at the problem with no success. Instead we have hired more government workers who do not know how to process claims or simply refuse to do so.
At the center of the problem is the Board of Veterans Appeals. Currently, over 50% of the appeals from the Board are remanded back from the Court of Appeals for Veterans Claims because they are not ready for the court to consider. Most of them are then returned to the Regional Office. The process takes months and years to resolve. None of the records, or at least not may of them, are digitalized. Paper files are mailed back and forth and sit for days on end in mail rooms. Each time a file is returned, it must go through the intake process. Papers go missing or are duplicated and the file grows fatter while the veteran grows older.
There is no compatibility between the DOD records and the VA system. Medical and service record should be seamless. They are not. Different systems, different record keeping procedures and different programs that do not talk to each other.
In the Court of Appeals for Veterans Claims, three judgeships were vacant for most of the year. One still is. Congress authorized additional judgeships but they were not filled. As a result, the backlog continues to grow.
Attorneys are not allowed to participate for pay at the Regional office level. As a result, Veterans Service Officers throughout the country, of varying education, background and knowledge, file the initial claims. They often do not have complete access to all medical records and must wait until the Claims file is complete before requesting it. More importantly, the VA has no outreach program to train the VSOs, leaving them to their own devices or to receive the training their sponsoring organization provides. No lessons learned or videos on how to file a claim have been distributed by the VA.
To top it off, the Regional Offices use the VA M 21-MR manual to process claims, while the Board of Veterans Appeals and the Court of Appeals for Veterans Claims uses the Code of Federal Regulations.
The answer to the problem is simple. Process the claim quickly and do it right the first time. Train the people reviewing the claim and train the people submitting the claim. Scrap the veterans hotline and allow the preparer to talk directly with the reviewer. Stop filling up the file with useless paperwork and communicate.
Have you ever read a statement of the case that the VA issues if the veteran wishes to appeal a denial? 3/4 of it is taken up with quotations from statutes and the Code of Federal Regulations - many of which are inapplicable to the case. These quotes are the actual language of the statute or regulation and not summarized in layman’s terms. As an attorney my eyes sometimes glaze over when reading these documents. Just think about the poor guy or gal out there trying to do it on their own.
Bottom line, the Veterans benefits system as become more about form than substance This must change. St. Tammany President Pat Brister has appointed a Veterans and Military Advisory Counsel that is trying to take on some of these problems. A new non-profit, Military-Veterans Advocacy Inc., will be starting up next year. And Loyola Law School has expressed an interest in establishing a Veterans Legal Clinic.
These are starts in the right direction but true reform must come from Congress. Much work must still be done to ensure that there is adequate treatment and compensation for the victims of Agent Orange, Gulf War Syndrome and new victims of the burn pits in Iraq and Afghanistan. We must work hard to establish Veterans Courts to process veterans who are charged with minor offenses that are symptomatic of PTSD.
The nation of Australia has fought beside the United States in every war of the last and current century. They have taken the lead in caring for their veterans and track the physical and mental health of every veteran from time of discharge until their death. Unlike our own system, they outreach to veterans and their families and work tirelessly to discover new areas where veterans treatment is required. Perhaps it is too late to establish such a program for the veterans of past wars - the numbers may be too great. But we can start with the veterans of today and over time keep the promise made by President Abraham Lincoln, "To care for him who shall have borne the battle and for his widow and his orphan."
Everyone talks the talk on Veterans Day, Memorial Day, the Fourth of July and occasionally Armed Forced Day. It is time to walk the walk 365 days of the year. We have just finished electing a President and a Congress. There were a few words bandied around by both parties but where is the plan? Where is the action? As veterans and as those who support veterans, it is time for us to demand action and not words from our elected leaders. When we meet our Congressmen and Senators ask them what are you doing for veterans. Take a minute to educate yourself. All bills filed are online www.thomas.gov. Use the search engine for the word veteran and you will find dozens of bills supporting veterans. The texts of the bills are available as well as a list of sponsors. If your Congressman and Senator is not a co-sponsor to a bill that you think is meritorious, ask them why. Carry a copy of the bill with you and let them look at it. Then require a response. Or write them a letter and ask the same question. These letters are read and the Congressmen and Senators are briefed on them. I know when I meet with staff members and occasionally with Members of Congress. They tell me when they have heard about the issue from their constituents. Always remember – they work for you.
I hope that I have not painted too bleak a picture because believe it or not, the system works. But it only works if you make it work. The VA needs to be overhauled but it will not happen until enough people contact Congress and demand it. Individual letters from constituents rather than mass emailouts is the best approach.
We enjoy our freedom today because of our veterans. It is time to put action behind the words. Veterans are being left behind. That needs to stop. Not only must we include those returning today but we must do a better job of taking care of those who have served before. We must work together to ensure that all veterans receive the care and the benefits they have earned. Thank you.
President Obama has signed the Don’t Ask Don’t tell repeal and it is now the law of the land. What is the impact of this historic legislation? Is this a great civil rights milestone or will it lead to homosexualization of the military? The answer is neither. Despite all of the hoopla the law will have little immediate effect. The fact is that military readiness has been sacrificed on the altar of political correctness with little real benefit to the homosexual military member. At best, this is a pyrrhic victory for the homosexual community.
What is the immediate impact of the repeal? Nothing! President Obama’s signature does not mean that homosexuals will be allowed to serve openly now or in the immediate future. The law will not even take effect until the President, Secretary of Defense, and Chairman of the Joint Chefs of Staff consider a report concerning implementation strategies and prepare the necessary regulations to implement the law. Additionally, the President, Secretary of Defense and the Joint Chiefs Chairman must certify that implementation "is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces." Who knows when that will occur.
Revision to military regulations takes time. The Defense Department must revise several personnel regulations. Once these directives have been rewritten, the individual service Secretaries must rewrite their manuals to comply with the new DOD regulation. Individual administrative commands must then rewrite their regulations. Sensitivity and command climate groups at each major headquarters must be established or expanded. Training will have to be devised and held throughout the services. Compliance reports will be completed and submitted up the chain of command. Only then can the military hierarchy accurately say that the program is ready for implementation.
I think the military will make an honest effort to implement the law but it will not be easy. We are dealing with human beings, after all, and all of their various beliefs and prejudices. Racial integration was ordered in the 1940's but true acceptance took decades. In the late 1960's racial stress resulted in riots aboard Navy carriers and racial tensions continued well into the 1970's and 80's. Gender integration was done progressively, starting in the 1970's, but gender equality has not yet been achieved. Tension from gender discrimination contributed to Tailhook and other less publicized sexual scandals. Allegations of fraternization and sexual harassment are still made on a routine basis. Over half of the fifteen Navy Commanding Officers fired in 2010 were accused of sexual offenses such as fraternization, sexual harassment or inappropriate behavior, which is often a code word for sexual misconduct. Resentment at orientation integration will surface whenever a homosexual makes a real or perceived pass at a heterosexual in a crowded tent, berthing compartment, barracks or shower. Uneasy heterosexuals will react, sometimes violently, to what they perceive to be undesired sexual approaches. Disciplinary complaints by persons of both orientations will increase causing more investigations, courts-martial and discharges.
Ironically, the new law may not make much difference to homosexual soldiers, sailors or airmen. The repeal specifically prohibits same sex spouses from being eligible for any military benefits. Nor can anyone file suit to seek reinstatement from a previous discharge. The repeal specifically states that no private cause of action is created.
Most peculiar of all, homosexual conduct is still illegal under the new law! Article 125 of the Uniform Code of Military Justice (10 U.S.C. § 925) specifically prohibits "unnatural carnal copulation with another person of the same or opposite sex." Unnatural carnal copulation includes oral or anal sex. It will take another act of Congress to repeal or modify this statute.
Despite all of the turmoil on both sides, homosexuals can serve but they cannot have sex. "Don’t Ask, Don’t Tell" has morphed into "Tell Us But Stay Celibate." Was this an oversight or a bait and switch? It is certainly not the outcome that the homosexual lobby thought it was. It appears to me that Congress has sold a bill of goods for political purposes at the expense of military readiness. In other words, this was a lose/lose proposition for everyone.
As a result of the President’s decision to cancel land based missile defense and shift responsibilities to shipboard systems, the Navy is moving warships into the Persian Gulf to guard against an Iranian missile threat. While the Navy’s Standard Missile (SM-3) system coupled with the Aegis radar has performed admirably, the Obama plan over-tasks the system and forces it into situations for which it was never designed.
Properly positioned along any threat axis, Navy ships present an effective threat to ballistic missiles. Due to size limitations, however, the radar acquisition system and its interceptor missiles are range restricted. While the Navy system is a formidable defense in a limited geographic area, outside of its radar and missile envelope, the system is useless.
Land based missiles have larger radar systems. The missiles themselves have an extended range and carry a bigger payload. Storage facilities are larger and reloading capability is much more efficient. With a larger detection and kill envelope, land based systems allow for multiple shots at the incoming missile. Land bases are also cheaper to build than warships.
Aegis ships are primarily designed to defend Carriers and Amphibious Strike Groups in a multi-threat environment, provide gunfire support to expeditionary forces, conduct surveillance, search and rescue, etc. These missions will be compromised or degraded if several ships are diverted to the Persian Gulf. The need to rotate ships through the deployment and maintenance cycles requires several Aegis Cruiser/Destroyer hulls to be dedicated to this operation. Today’s Navy is half the size of its Cold War counterpart. Simply speaking, we cannot afford to divert these ships from their primary missions.
Additionally ships in the Persian Gulf are susceptible to attack. Cruisers and Destroyers are deigned for open ocean blue water operations where they have room to maneuver. The Persian Gulf is a shallow restricted waterway. When entering or exiting through the Strait of Hormuz, the ships’ crews have their attention focused on a narrow channel with tricky winds and currents. While concentrating on the navigation problem, the ship is very vulnerable to attack.
The geography of the Persian Gulf complicates the problem. Once into the Gulf, United States ships are also forced to transit and patrol along the western portion of the waterway. The Iranians claim sovereignty over a number of islands in the Gulf, which requires the American ships to steer to the west. Under international law, warships cannot pass within twelve nautical miles of these islands. As a matter of policy American ships give them an even wider passage. This also reduces the ability of the ships to maneuver.
Aegis Cruisers and Destroyers are at their best when they are in front of the target. Incoming missiles approaching at virtually the same target angle allow for follow-up salvos. In the Gulf, missiles launched from Northern Iran towards Israel will pass at a right angle, forcing a cross shot. The ship will be limited in the number of interceptor missiles they can fire. If the Iranians launch a multi-missile salvo, the American missiles may quickly find themselves in a tail chase as the enemy missiles pass out of range.
The Iranians have a moderate multi threat anti-ship capability. This includes surface to surface missiles, fighter bombers and quiet Kilo Class diesel submarines capable of laying on the shallow bottom undetected until an American ship passes. Additionally they possess a number of fast attack boats manned by the Revolutionary Guard capable of carrying anti ship missiles. These boats can also be used to ram a larger ship such as occurred with the U.S.S Cole. This exposes the ships to a surface, subsurface and air threat which could overwhelm shipboard defenses. The sailors countering these threats would be same people trying to shoot down a ballistic missile. Missiles launched against Israel at the same time as a combined arms attack against the ships could sneak past them.
The Navy has a place in the strategic and tactical anti-missile environment. The entire burden of theater ballistic missile defense should not fall on the Navy’s shoulders, however. Proper funds must be made available to develop and deploy land based systems. The ballistic missile threat, especially if topped with nuclear warheads is substantial. We need to foster a comprehensive and effective defense that works the first time. We cannot afford to get this one wrong.
DNA has been called "The Hand of God" and in many respects it is. Certainly the science is at the cutting edge of our technology. DNA has simplified the accurate identification of disfigured remains. Countless criminals have been imprisoned based on DNA evidence and many innocents have been released from prison, and even death row, because of DNA.
Properly performed, DNA tests are unfailingly accurate. Criminal prosecutors and juries, buoyed by exposure to crime shows such as CSI and Law and Order are convinced that DNA testing always targets the culprit. DNA strikes terror into many defense attorneys, who scurry to the prosecutor’s office to try to negotiate a plea, once they receive the dreaded report.
Even DNA evidence deserves a second look, however. A DNA report should never be the end of the case. While it is strong evidence, it is not perfect evidence. Prosecutors, defense attorneys, judges and jurors must remember that the science is only as good as the human involvement. Unfortunately, the human element is just as fallible now as it was before DNA testing came upon the scene.
In evaluating DNA, the most important action is to secure independent testing. Unless your client is independently wealthy, this may take a court order. But it is essential to preparing a defense. Independent testing will minimize or even eliminate the possibility of cross contamination, evidence manipulation or intentional falsification.
Few people know that there have been several cases of falsified DNA results. The West Virginia criminal justice system was shaken in the early 1990's when authorities discovered that Trooper Fred Zain, who was in charge of the Serology Division at the State Police Crime Laboratory was investigated for falsifying results. Zain was alleged to have overstated the strength of results and the frequency of genetic matches. He is also alleged to have misreported the frequency of genetic matches on multiple pieces of evidence and reported that multiple items had been tested, when only a single item had been tested. Inconclusive results were reported as conclusive. Records were supposedly altered and the lab failed to report conflicting results or to conduct additional testing to resolve conflicting results. See, Matter of Investigation of West Virginia State Police Crime Laboratory, Serology Div. 438 S.E.2d 501, 503 (W.Va.,1993). After ascertaining that irregularities were systematic rather than inadvertent, the courts ordered new trials for a number of people convicted on Zain’s testimony.
A similar situation occurred a decade later at the United States Army Criminal identification Laboratory at Forest Park Georgia. Serologist Phillip Mills was also accused of falsifying results as well as allowing cross-contamination. The Court of Appeals for the Armed Forces ruled that Mills’ actions triggered the requirement for a hearing to determine whether or not a new trial should be ordered. United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006). In another case the Judge Advocate General of the Navy set aside the conviction of a Naval Officer which was based on Mills’ testimony. In this case a re-test exonerated the officer. See, http://www.mcclatchydc.com/military-injustice .
The wise defense attorney does not rely on the report alone but demands the laboratory notes, protocols, calibration records and audits of the laboratory. The laboratory notes may reveal discrepancies in the examiner’s testimony and the raw results on the strength of the reading and number of matching loci may provide fertile grounds for cross-examination. Protocols and the adherence thereto may give rise to questions of cross-contamination.
The type of DNA discovered is also important. Obviously semen or blood is strong evidence, but epithelial cells (skin cells) could be less damning evidence. Skin cells are passed by a handshake or a head scratch and are routinely left by everyone in their travels. If the defendant had been at the crime scene prior to or even after the crime, for a benign purpose, the impact of the epithelial cells can be diminished. Additionally, do not underestimate the effect of cross-contamination. Remember that many deaths in the anthrax attacks came from cross-contamination at Post Offices. The same type of cross-contamination can occur at crime scenes and in the lab.
DNA evidence is evidence. Like all evidence it must be examined and evaluated. Like other evidence it has its strengths and weaknesses and those need to be investigated. DNA can only be introduced through the testimony of an expert. That expert is subject to cross-examination. Independent investigation, analysis and good lawyering can shake DNA evidence and possibly keep an innocent person from being convicted.
The current health care debate reminds me of one of the most memorable episodes of the 1960's Sci-Fi series, The Twilight Zone. In this episode, a middle aged librarian, played by Burgess Meredith, stood before an enormous dias while a unformed bureaucrat repeatedly screamed that he was "obsolete!" The term "obsolete" was a code word for euthanasia and/or execution. Former Alaska Governor Sarah Palin’s reference to "death panels" invokes this scene. While not as dramatic as the Twilight Zone setting, many veterans claim that federal government health care "death panels" have been operating for decades by the Department of Veterans Affairs (VA).
The VA is required to provide free medical care to veterans who suffer from service connected illnesses or disabilities. Unfortunately, many of the reviewers who adjudicate these claims lack the medical or legal training or experience, to determine who actually suffers from service connected disabilities.
In the VA system, a veteran must first apply to the local Regional Office for benefits. After a six to nine month wait, the veteran may receive a compensation and pension exam, conducted by a VA doctor which may or may not validate his claim. Even if a disease or defect exists, the veteran must still show that it is service-connected. Although the VA is required to assist the veteran in developing a "well grounded" claim, the reality is that little or no assistance is provided. Rejection at this stage is common place.
The veteran may appeal a rejection to the Board of Veterans Appeals (BVA) and appear before a Veterans Law Judge hired by and paid for by the Department of Veterans Affairs. Veterans often wait years for these hearings. Although the system is supposed to be non-adversarial the burden is on the veteran to convince the BVA to overrule the Regional Office. In many cases, the BVA rules against the veteran or remands the matter back to the Regional Office where it will languish for additional months or years before being rejected again.
A veteran may appeal a decision of the Board of Veterans Appeals to the Court of Appeals for Veterans Claims, a court unique to the VA. Unfortunately this court is limited in its jurisdiction and can generally examines only legal issues. Factual review is extremely limited. Again the pace is excruciatingly slow and a decision by the court will take many months.
For decades the VA refused to allow attorneys to practice before the BVA or the Regional Office. Although volunteers and paid employees of service organizations tried valiantly to represent the veteran, they were not experienced attorneys. It was an unfair fight and the losers were the veterans. Even now, attorneys cannot be compensated until after the Regional Office has rendered their initial decision.
The key to solving the real and perception problem is the BVA. Thorough preparation and a fair non-adversarial hearing can go far to resolving the issues. This process allows the veteran to go one on one with a Veterans Law Judge to make his case. The careful application of laws and regulations to the facts should be the watchword of the BVA. The Veterans Law Judges must ensure that the issues are fully vetted and strive to make the right decision the first time. This will eliminate the need for costly and time consuming remands and increase the confidence of the veterans in the system. More importantly, it will allow scarce funding to be utilized for veterans benefits and not procedural missteps. Hopefully it will end the comparison of the VA health benefits system to the feared "death panels."
President Obama's choice of General Eric Shinseki for Secretary of Veterans Affairs was a good one and the process appears to be slowly improving. It is certainly headed in the right direction. A comprehensive approach at the BVA level will streamline the claims process and provide needed guidance to the Regional Offices to assist in their initial adjudication of veterans' claims.