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Sample Appeal Letters for Wrongful Discharge

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Sample Appeal Letters for Wrongful Discharge Powered By Docstoc
					MILITARY JUSTICE


         Maj Sean R. Dunn
         DSJA MARFORRES
         DSJA MARFORNORTH
         (504)678-2593
         sean.dunn@usmc.mil
           OBJECTIVES
•   Military Justice Refresher
•   Investigations
•   Article 31b Rights
•   Pretrial Confinement
•   Search vs. Inspection
•   Reservists and Jurisdiction
•   Art 112a “Tricks of the Trade”
      Courts-Martial
• Summary Courts-Martial

• Special Courts-Martial

• General Courts-Martial
    COURT-MARTIAL OPTION

       CONVENING ORDER

          PREFERRAL

                       Article 32 Hearing

                          IO Report

                      ART 33/34 LETTERS



SPCM REFERRAL     GCM REFERRAL
         SUPREME COURT

                  CAAF
(COURT OF APPEALS FOR THE ARMED FORCES)


NMCCA       CGCCA ACCA             AFCCA
       (COURTS OF CRIMINAL APPEAL)



 NAVY, MARINE, COAST GUARD, ARMY & AIR FORCE
             TRIAL COURTS
    What to do with Misconduct?
Who CAN report an Offense?

Who MUST report an Offense?

Who should Offenses be reported to?
         INVESTIGATIONS
          ARE REQUIRED
•R.C.M. 303
•Receipt of information that a member
of the command is accused/suspected of
offense under UCMJ
•“the Immediate Commander SHALL
MAKE or CAUSE TO BE MADE a
preliminary inquiry . . .”
   TYPES OF INVESTIGATIONS

• RCM 303 - Preliminary Inquiry
• CID
• NCIS
       NCIS INVESTIGATION
       SECNAVINST 5430.107
•Major criminal offenses
•Espionage/Classified information
•Ordnance/Arson
•Deaths
•Thefts ($500)
•Controlled Substances/Drugs
•Missing UA (Foul Play?)
•WHEN IN DOUBT CONTACT NCIS
                 OFFENSE

               INVESTIGATION

                 OPTIONS

No Action                       Court-Martial

Non-Punitive       SUMMARY
 Measures
                      SPECIAL
Non-Judicial                       GENERAL
Punishment




WHAT TO DO WITH MISCONDUCT
          Courts-Martial
          Considerations
• Cost of Courts-Martial
  (time, money, manpower)
• Gamble of no discharge or acquittal
• “The Lost Battalion”
• ADSEP v Court-Martial
            Article 31(b)
“ It is far more pleasant to sit comfortably in the
  shade rubbing red pepper in some poor devil’s
  eyes than to chase about in the sun hunting up
  evidence.”
                                 British Army Officer
                                 India, 1883
     Article 31, UCMJ
• No person subject to the
  code may compel self-
  incrimination
• Requires rights warnings prior
   to questioning
    Article 31 Warnings
Suspected of (? Offense).
Right to remain silent.
Consequence of waiving
 right to remain silent.

NO RIGHT TO ATTORNEY
UNDER 31(b)!
    WHEN MUST YOU WARN?

Mil.R.Evid 305
1) Person Subject to the Code
2) Person is suspected of
   offense
3) Interrogation or request
    for any statement
    WHO IS A SUSPECT?
Person who is believed
              --or--
reasonably should be believed to
have committed an offense

When considering all the facts and
circumstances at time of interview
       WHAT IS AN
    INTERROGATION?

Any formal or informal
questioning intended to
             --or--
reasonably likely to elicit an
incriminating response.
    RIGHT TO ATTORNEY
• Constitution and U.S. v. Miranda

• Trigger is “Custodial Interrogation”

• What is “Custodial Interrogation”?

• Best Practice – Give Right to Counsel
  Warning!
     THE SPONTANEOUS
       CONFESSION
• Listening to spontaneous
  confessor is not an
  interrogation
• No need to warn
• No need to stop spontaneous
 confession
      WHAT IF?
New offense arises during
questioning?

 – Stop and Provide 31(b)
  rights for new offense.
       WHEN A SUSPECT
        WAIVES THEIR
          RIGHTS
• Knowing, Voluntary, and
  Intelligent Waiver
• Best if Waiver is in writing
• See, JAGMAN appendix
  A-1-m for sample form
  CLEANSING WARNINGS

• Used to correct a previous
  violation of article 31
• Should be given in all cases
   where a prior statement was
   made
     CLEANSING WARNINGS
• The statement you gave to
  [ ] is not admissible . . . .
• Regardless of the fact that
  you talked about this
  offense before, you still
  have right to remain
  silent . . . .
     PENALTY FOR VIOLATING
           Art. 31 (b)
• “Exclusionary Rule” –
  Statement will be suppressed at
  Trial
• “Fruit of the Poisonous Tree” –
  All evidence obtained as a result
  of the statement will be
  suppressed
      PRETRIAL CONFINEMENT

• R.C.M. 305 (h)(2)(b)

• Probable cause (PC) that an offense
  triable by court –martial has been
  committed, and

• PC The accused committed the offense,
  and
       Pretrial Confinement
• PC to believe confinement is
  necessary b/c it is foreseeable that …
  – Will not appear
  – Will engage in serious criminal
    misconduct
  – Lesser forms of restraint are
    inadequate.
         INSPECTION VS.
            SEARCH
• 4th Amendment
• Search?

• MRE 313 “Inspection”
• MRE 314 “Consent Search”
• MRE 315 “Probable Cause Search”
          US v. LCPL Long
•   Art 112a
•   Search of NMCI computer
•   Expectation of Privacy?
•   DOD Computer Warning?

• How do you search a computer?
           RESERVISTS
• MUST HAVE JURISDICTION OVER
  RESERVE MARINE AT TIME
  OFFENSE WAS COMMITTED
• UCMJ Art. 2(a)(1) – AD, AT, ADSW
• UCMJ Art. 2(a)(2) – IDTs (“Drill”)
• NO JURISDICTION 28 days out of the
  Month!
        RESERVISTS


• Drill Weekend Drug Pops – What
  can you do?
     Drill Weekend Pop
• NJP or Court-Martial?

    • Reduce at CRB?

         • ADSEP?
          URINALYSIS!
• UCMJ 112a – “Wrongful Use”
• Urinalysis allows “INFERENCE” of
  “KNOWLEDGE” and “WRONGFUL”
  USE
• No requirement for Government to
  provide ANY evidence of wrongful use!
• SANCTITY OF TEST IS KEY!
                 Defenses
•   Not my Urine
•   Altered Urine
•   Innocent Ingestion
•   Legal Use, Legal Substance
•   Alibi
•   Good Military Character
QUESTIONS?

				
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Description: Sample Appeal Letters for Wrongful Discharge document sample