Manning Update: Now only 90

Refer back to what I said here under #3. It concerns multiplicity for sentencing.

Defense did make such motions (they’d have been crazy not to do so), and the military judge agreed to the extent that Manning’s maximum possible punishment is reduced from 130ish years of total confinement to:

Reduction to the pay grade of E-1, total forfeiture of all pay and allowances, 90 years of confinement and a dishonorable discharge.

As before, the minimum possible sentence is as follows:

No punishment.

I give both of these because many news outlets like to tout the maximum punishment due to the shock value they may elicit. Ken White at Popehat often bristles when maximum punishments are presented in a way that makes them appear to be the most likely punishment, and my reaction is similar, if not identical. In reality, the maximum possible punishment is rarely given, though it is possible. It all depends on evidence presented in aggravation, mitigation, and extenuation. That’s why the sentencing phase of a court-martial is akin to a trial in itself.

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VRAP for “Other Than Dishonorable Discharge”

Most of my clients and potential clients received a less-than-honorable discharge from the military. For many, the most immediate consequence is a loss of educational benefits (most notably, the Post-9/11 GI Bill (worth tens of thousands of dollars)).

They are left looking to obtain employment and training. Most lack means and are forced to accept menial employment and day-labor tasks. It’s a helluva fall from military member with pay and benefits to day-labor.

Help exists in the form of VRAP (Veterans Retraining Assistance Program), but slots are limited. Per the VA:

The VRAP offers 12 months of training assistance to Veterans who:

  • Are at least 35 but no more than 60 years old
  • Are unemployed on the date of application
  • Received an other than dishonorable discharge
  • Are not be eligible for any other VA education benefit program (e.g.: the Post-9/11 GI Bill, Montgomery GI Bill, Vocational Rehabilitation and Employment Assistance)
  • Are not in receipt of VA compensation due to unemployability
  • Are not enrolled in a federal or state job training program

The program is limited to 45,000 participants from July 1, 2012, through September 30, 2012, and 54,000 participants from October 1, 2012, through March 31, 2014. Participants must attend full-time in order to receive up to 12 months of assistance equal to the monthly full-time payment rate under the Montgomery GI Bill–Active Duty program ($1,564 effective October 1, 2012). DOL will offer employment assistance to every Veteran who participates upon completion of the program.

Participants must be enrolled in a VA approved program of education offered by a community college or technical school. The program must lead to an Associate Degree, Non-College Degree, or a Certificate, and train the Veteran for a high demand occupation.

Many veterans who leave the military with a less-than-honorable characterization of service abandon hope of receiving educational/vocational benefits. Here’s why they should consider this program.

  • Most do not have a Dishonorable Discharge. 5 types of discharges exist, and 4 of them are “other than dishonorable.” The discharges (characterizations of service) are:
  1. Honorable
  2. General (Under Honorable Conditions)
  3. Other-Than-Honorable (OTH)
  4. Bad-Conduct Discharge (BCD)
  5. Dishonorable Discharge
  • Anyone receiving a General, OTH, or BCD loses eligibility for any other VA educational benefit (Montgomery and Post 9/11 GI Bills).
  • This policy also does not appear to exclude individuals who receive Entry-Level/Uncharacterized separations during their first 6 months of service.

So, please pass this word to any down-and-out veterans you know. It may be just what they need to get back on their feet after a less-than-auspicious exit from the military.

When in doubt, apply.

Note: I didn’t write this post as a solicitation for questions. It is for informational purposes only. To determine your eligibility for this program, contact the VA through the internet or your local VA service center.

Sex, Swingers, and Porn Stars in Military Justice

You never quite know where someone's dogtags have been. Image via Wikipedia

I suppose I have your attention now. For those who seek to condemn me for this post, please refer your negative comments to Charlie Thomas, the Felonious Munk. It was a dare, and a double-dog one at that. If you have positive comments, however, forget sending them to Charlie, keep sending those to me.

Charlie was chatting with me the other day about the conviction of Air Force Technical Sergeant (Tech Sgt) David Gutierrez. Who is he? Well, you may be thankful that you never met him at a party.

An Air Force sergeant convicted of exposing multiple sex partners to HIV at swinger parties was sentenced Wednesday to eight years in military prison and will be dishonorably discharged after serving his time.

A court martial judge earlier found Tech. Sgt. David Gutierrez guilty on seven of eight counts of aggravated assault and violating his commander’s order to notify partners about his HIV status and usecondoms. The judge also convicted Gutierrez of indecent acts for having sex in front of others and eight counts of adultery.

The judge, Lt. Col. William Muldoon, delivered the sentence after a brief hearing, during which Gutierrez had begged between sobs not to be discharged so he could keep the military medical benefits he will now lose. Gutierrez also will be reduced to the lowest enlistment rank while serving out his military confinement.

Charlie really doesn’t have a problem with the aggravated assault and violating the order to inform sex partners. He gets it, and I get it too. Gutierrez was, after all, slinging his body fluids around someone’s living room with multiple partners without their knowledge of his loathsome disease.

Really, Charlie’s consternation arises from the Adultery charges. It seems strange that a crime should result from a consensual, adult act. What’s up with the bedroom police? (or, in the case of Gutierrez, the Bedroom/Living Room/Spare Room/Utility Room…..well, you get the point….police?).

What is adultery in the minds of the military? Well, we must look to Article 134 of the Uniform Code of Military Justice. Article 134 is a catch-all for any conduct deemed “prejudicial to good order and discipline” or “service discrediting.” That doesn’t leave much to the imagination, does it?

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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.

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Azimuth Check: DADT Edition

A potpourri of thoughts regarding the military policy of Don’t Ask/Don’t Tell (DADT) that was eliminated reinstated repealed partiallyreinstated stayed. I can’t figure out where it is now. I think it is still in effect, but I’m not quite sure.

Oh boy, now these folks are really going to be ticked-off.

I agree with half of the policy. The Don’t Ask part is completely appropriate and consistent with how our government should generally treat its citizens. A person’s sexual orientation is none of their damn business. As far as the last half, I have no use for the threat of losing one’s job for revealing one’s preferred sexuality.

Which brings me to the topics du jour…

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Justice is in the Eye of the Beholder

Used as a gunnery target at Cannon Range near ...

This is how my clients feel when subjected to "justice." Image via Wikipedia

Several months ago, while still the Senior Defense Counsel at Fort Leonard  Wood, Missouri, I learned a valuable lesson about justice and its definition.

As those who read this blog know, I have no use for justice in my work as a Criminal Defense Lawyer (CDL). My goals do not involve it unless “justice” benefits my client. At the same time, I am mindful of the opinions and views of others involved in the process. After all, determining what the prosecutors might/will do is part of my job.

As a prosecutor, I talked a lot about “justice.” As with many in the business of representing the government, I used the word like a professional nervous tick. I used it to make others feel good about taking away a human’s freedom. I used it to sleep at night.

At the same time, I tried to be fair. Balancing the needs of the government/military command/public with the life of a fellow human being was a necessary part of my job. I used prior cases throughout the military, current judicial trends, the facts of the case, the history of the soldier, and the sentencing history of the particular military judge to determine a fair deal for each of my cases. This is what I was taught, and it seemed a decent way to do business.

My assumption was that all (or at least the vast majority), saw things similarly. Even if you have one bad apple, the presence of several layers of oversight would dampen their perspective.

I was wrong.

One particular situation came to mind today.

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