Who are these people, and why are they giving legal advice?

WWE Champion John Cena poses with Marines at C...

I bet John Cena has as much legal training as one of the Marine Corps' "non-lawyer counsel." Image via Wikipedia

OK, Marines, something fishy is going-on (I’ll avoid, for the moment, any double entendres on the word “fishy”).

When one client tells me something strange, I consider it akin to a lightning strike.

When two tell me something strange, I consider it a mild aberration.

When three tell me something strange, I consider it a possible systemic problem.

Then, when I hear it consistently and repeatedly, I consider it a serious flaw in the system.

This flaw, as I see it, is the use of untrained, unlicensed “non-lawyer counsel” by the United States Marine Corps.

First, let’s start with a bit of background.

Many of my potential clients are individuals seeking to clean-up problems with their military records. Most seek to upgrade the characterization of their military discharge. For those of you who do not know, a departing servicemember can receive one of three characterizations of service upon an administrative discharge from the Armed Forces.

First is the Honorable Discharge. These are great, and they mean that a person receives all the rights and privileges of being a veteran. Wunderbar.

The second is the General, Under Honorable Conditions (General) characterization. Don’t let the “under honorable conditions” thing fool you. This is far from the noble status of Honorable Discharge. With a General, an individual loses their GI Bill (their potential full-ride college scholarship) along with other privileges. Also, it is a permanent black mark on their record that is discoverable by potential colleges and employers.

Finally, there is the Other than Honorable characterization of service. Here, a former Servicemember loses nearly every important veteran benefit normally afforded to those who serve our nation. Not only is this a black mark, it is a black mark tattooed on their forehead and highlighted in orange fluorescent paint. It’s just awful. Really awful. These are so serious that, generally, a person has the right to an administrative separation board (kind of like an administrative trial) to determine whether one is warranted.

Today, I’m focusing on Marines who receive an Other than Honorable (OTH) characterization. Most never see an Administrative Separation Board.

Since starting private practice, I’ve received calls from many former Marines who received OTH’s. My first question is, “Did you have an administrative separation board?” The answer, unwaveringly, is no. Then, I ask, “Did you talk to a lawyer before all of this happened to you?” They reply that they talked to some sort of “legal officer.” Upon further questioning, it is revealed that they did not talk to an actual attorney. Instead, they talked to an officer that the Marine unit assigned to act as a legal representative. My potential clients are systematically denied attorney representation and are instead appointed this “non-lawyer counsel.” The advice given by these officers usually comports to one of the following:

  • You have no chance, just go quietly.
  • If you fight this, things will just get worse.
  • Here’s where you sign (typically the box waiving all substantive rights). OK. You’ll be out by next week.
  • You aren’t entitled to an administrative board. You’ll just have to take the OTH. Sucks to be you.
  • Marine, you will do exactly what I tell you! Do you understand, Marine?!?!

Now, I’ve read the Marine Corps Separation and Retirement Manual (MARCORSEPMAN if you prefer the Orwellian abbreviation). In paragraph 1004(2)(c)(2), it states the following:

OTH characterization is authorized only if (1) the member has been afforded the opportunity to request an administrative board, or (2) the member requests separation in lieu of trial by court-martial under paragraph 4104 or 6419.

The cases that I see generally do not involve separations in lieu of trial by court-martial, so most fall under (1).

An aside: Before writing this, I talked to several USMC current and past Noncommissioned Officers. All believed that the rules allowed for a Marine to be separated without a board with an Other than Honorable Discharge as long as it is their first enlistment (usually under 4 years of total service). If they’d only read the manual. Back to the main point…

Paragraph 6303 of the Separation and Retirement Manual specifies that consulting qualified counsel is a right–except when qualified counsel is not “reasonably available.”

Options for legal counsel include the following:

A respondent has the right to consult with a lawyer qualified counsel, or non-lawyer counsel before returning the acknowledgement of rights. “Qualified Counsel” is a trial or defense counsel certified under Article 27b of the UCMJ, or a civilian attorney authorized to practice law.

Non-lawyer counsel, you say? Hey, that sounds like a great, expedient, and cost-effective way to get someone out of your hair with maximum prejudice. (Never mind that the rest of the nation considers it a crime to engage in the unlicensed practice of law). In order to get one of these fantastic officers with no legal training, degree, or license, several conditions must be satisfied (from the same manual):

(a) The respondent is away from or deployed outside the United States, or attached to a vessel away from its overseas home port, or attached to a shore activity remote from judge advocate resources;

(b) No qualified counsel is assigned and present at the vessel, unit, or activity; and

(c) The commanding officer does not anticipate having access to qualified counsel from another vessel, unit, or activity, for at least the next 5 days if qualified counsel is assigned and present on another naval vessel, unit, or activity located in the same geographic area where the Marine’s vessel, unit, or activity is located, or will be located within the next 5 days. It is considered that, for purposes of this Manual, the commanding officer has access to qualified counsel unless that counsel is currently absent from duty station; i.e. leave, or TAD outside the immediate geographic area; and

(d) The commanding officer determines that the requirements or needs of the Marine Corps warrant processing before qualified counsel will be available.

Wow, that certainly can’t be skewed against the Marine with a little creative writing. Mind you, most of the potential clients who call me were stationed at Camp Lejeune (many JAG lawyers available), Camp Pendleton (oodles of JAG lawyers available) or other Marine locations where I’ve verified the presence of licensed attorneys. Yet, the commanders chose to go with the untrained, unlicensed legal advisor.

Let’s assume that the commander satisfies a-d above. Is the use of a non-lawyer counsel the right thing to do? On a ship, are you really that isolated that the Marine cannot speak over radio, satellite phone, VOIP, internet chat, or email with a qualified military lawyer? Come on, this is not WWII where the isolation of sea duty was real and, in some cases, extreme. Those metal things up above the atmosphere are called satellites, and we own a lot of them.

Another aside: I’ve advised plenty of clients of their legal rights over the telephone for administrative separations. It’s usually a 15-20 minute conversation where I tell them the pros and cons of each legal decision they must make. It is not a hard legal task, but it does require some insight into the process, knowledge of the regulations, and the ability to advocate for their interests. In any case, it was done in one short telephone conversation.

Before assigning the case to a “legal advisor,” the commander must substantiate, in writing, why he/she decided to go without an attorney for their Marine. I’ve read a few of these. They were massively underwhelming. In fact, many of the separation packets I read fail to include the required writing altogether.

Don’t get me wrong, I appreciate cases handed to me on a silver platter. What galls me is that a Marine must go through discomfort and effort to retain me in order to correct something that the command should have gotten right in the first place. Plus, the Marine suffers for several months or years before their records are corrected. In that time, they find themselves the subject of the prejudice and lost opportunities.

I’d rather the case never had the opportunity to be mine.

An Administrative Separation Board affords a Marine a fighting chance. In fact, they often result in nothing worse than a General, Under Honorable Conditions since the officers on the board are neutral, detached, and without an emotional tie to the case. By waiving the right to one of these boards, a Marine guarantees himself/herself the worst possible outcome–the OTH. How is waiving that opportunity ever a sound legal decision? It’s not.

Yet, these non-lawyer advisors advocate waiving the board again and again. Likely, it is because they don’t understand advocacy, rules, and the separation board process, and that is a disservice to every Marine subjected to these proceedings.

Maybe the Marine did something bad. Maybe they are annoying. Maybe they lack military bearing and a professional demeanor. They still deserve better because of the consequences of an OTH. They deserve better because they are Marines.

They deserve better because they are our American Servicemembers.