Recently arrested

I think with the drawdown on numbers DUI is automatic discharge
 
From what I have seen:

If it occured off base, and you are getting prosecuted offbase, a LOR is given with 30 days extra duty. (Double Jepordy)

If on base, Article 15 UCMJ, not kicked out, but denied reenlistment.

As for "fighting it". I do not see PTSD being used justification. You won't be able to use it a mental defense. You drank, your ride left, you could have called a friend, safe ride, supervisor, first seregant, taxi, ect. Sounds like your ride who left was drinking also. Also if you had a ride, why was your car even there and your keys should have been taken from you. Leaving the scene is even worse, and must mean you caused damage- to person or property.

Not sure what you are asking about it affecting your VA rating. It shouldn't. But just being able to have friends, or being able to go out socially would not give you a 70-90% rating for PTSD or depression.
 
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I have the 70/90 because there is a long list of medical problems, but the primary is PTSD. Believe me, the list of should've and could'ves is very long. I drove to the bar to meet old friends that I haven't seen in a long time. Then I drank, which is something I didn't really ever do. Things got really emotional between all of us, and I drank more. The rest is bad, bad history. I did cause damage to a parked car, and I left to get a ziplock bag for my information, since it was snowing heavily. When I got back, the police were there, and I got busted.

My main concerns are based on how to help others learn from my bad decision. Am I concerned about the Med Board? Yea, oh yea, but if I can emerge stronger from this, in helping others to see the errs of my way, then maybe I can save a life.

I think it's human nature to question how the future will look when a bad decision is made, but I hope my owning up to it and trying to help others makes a difference or saves a life. I've devoted my career to saving lives, and I very easily could've taken some innocent lives on Saturday night. There can be no more regret in my heart for that.

Thanks for the input everyone. I have a lot of work to do, and it's going to be a tough road, but I know that I will emerge a better person because of this.
 
AmyGallay said:
From what I have seen:

If it occured off base, and you are getting prosecuted offbase, a LOR is given with 30 days extra duty. (Double Jepordy)
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LOR cannot result in imposition of punishment. Corrective training can be given, but "extra duty" is not an authorized punishment. (Also, technically, double jeopardy does not apply, as there are two different sovereigns involved- Federal and State).

If on base, Article 15 UCMJ, not kicked out, but denied reenlistment.
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A flag/bar to re-enlistment would likely be issued, but it would not stand on its own as a ultimate bar to re-enlistment absent further action once Art. 15 punishment is completed. Separation is not an outcome of Art. 15 (though, the underlying misconduct can be the basis of a separate administrative separation action).

As for "fighting it". I do not see PTSD being used justification. You won't be able to use it a mental defense. You drank, your ride left, you could have called a friend, safe ride, supervisor, first seregant, taxi, ect. Sounds like your ride who left was drinking also. Also if you had a ride, why was your car even there and your keys should have been taken from you. Leaving the scene is even worse, and must mean you caused damage- to person or property.
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I can't go into depth here....there are way to many issues. But, for the dual action processing when misconduct is a factor, the issue is whether a condition/disability was a contributing cause of the misconduct. This is assuming that there is a finding of guilt or culpability in the first place. I get the instinct/analysis provided, but the legal issues are much more complicated than you suggest here. It is unknown if he made admissions of guilt or provided inculpatory statements, if there was a breathalyzer administered, what his degree of intoxication was, whether there was probable cause to arrest at the time he was arrested, and about a million other issues.

Not sure what you are asking about it affecting your VA rating. It shouldn't. But just being able to have friends, or being able to go out socially would not give you a 70-90% rating for PTSD or depression.
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Ratings were already assigned, so there is no issue here. What he may or may not "deserve" has already been initially adjudicated.
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Combat Eng said:
I think with the drawdown on numbers DUI is automatic discharge
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No. There may be a trend for increased "bad outcomes," but there is no "automatic discharge."
 
ranger2992 said:
I don't think a command is going to go for the throat when you have had a stellar career up until this point. A commander has a lot of flexability when it comes to handing out punishment. There is no hard fast rule that says they have to give you a misconduct discharge. This to me, really breaks down into two stages.
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Mostly agree....DUI is a serious issue in the military (compared, by far, with the civilian world- the impacts are much greater in the military). But, yes, a good military history will likely weigh in some degree of consideration of mitigation of harsh punishment.

First is the UCMJ punishment phase. This will fall under Article 110 and the commander will more than likely offer an Article 15. This Article 15 in itself normally would not carry punishment that results in a discharge unless it is directed by the base commanders policy. If the company commander, or battalion commander do the reading, chances are there will be a lot of flexability when it comes to punishment. Some base commanders do require all DUI offenses to come through their office, and that could be worse.
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There is no absolute rule on this....but, if the civilian authorities are prosecuting an offense that occurred off base, then most likely, the military will defer to the civilian authorities in punishing....now, in this Soldier's case this could be key...because, with the PEB finalization in the works, it is likely/probable that the civilian case can be deferred for a long time. Now, the question becomes not one of Art. 15, but if the command tries to initiate a separation action. Lots of moving parts here, but it is possible that there is a "threading of the needle" that works in the Soldier's favor (guilt/innocence/or proper disposition aside).

The second part of the equation is does the command want to go after a misconduct discharge? They can choose to pursue it or not. They have that leway with less serious offenses. The command could choose to give a General Letter of Repremand, or 45/45, or any other punishment deemed appropriate, and let the offense go. You don't see every soldier with a DUI get chaptered. It just really depends on the command, and the base.
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This part is spot on correct. I would add, though, that off the top of my head, part would depend on whether he has a right to a separation board in the first place and some of the administrative issues in effectuating a board. It might be too much of a bother, unless someone is head hunting.

Work with your lawyer, and don't say or do anything until he gives you a green light. Remember, anything you say or do can be held against you.
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YES!!! And, also, don't make statements/admissions to military authorities. Invoke your rights!


What branch of service are you? Rank? How was your relationship with the command prior to this? Does the base commander have a policy letter addressing DUI?
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Good questions, and another point, with policy letters, is that there is often withholding policies for E6 and above (regardless of nature of offense).
 
The posters have been helpful in raising a lot of issues for consideration. I have weighed in because I think there have been some posts or statements that are not quite right. But, bottom line, the issues can be VERY complicated, so I wanted to point out at least some issues or concerns with some of the statements.

The issues in the case are going to be VERY fact specific and DEPENDENT. It is really hard to seek, give, or get meaningful advice in such cases on a forum. He may well end up with a fine outcome. He may end up getting horribly shafted. Hopefully, it is a good result. However, I am not sure that anyone can do much to assist, help at this point by offering advice here. It really is going to be an "on the ground" situation and the Soldier is advised to get good legal advice and fight for the best outcome. We can provide moral support, but, this is one of those situations where there is not much prospectively to be done. The situation and facts are mostly fixed, so it is now up to the process and how it plays out that will determine the outcome.
 
MattR77 said:
For all you out there who partake in alcohol while dealing with these kinds of issues, don't do it.
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Amen! For whoever reads this, DO NOT DRINK while in the WTU or CBWTU. We soldiers work to hard and have to much at stake to risk it. Not only will it affect our lives, it affects the lives of our family (even future family) as well as the command in place to guide us through the MEB/PEB.
 
Jason Perry said:
The posters have been helpful in raising a lot of issues for consideration. I have weighed in because I think there have been some posts or statements that are not quite right. But, bottom line, the issues can be VERY complicated, so I wanted to point out at least some issues or concerns with some of the statements.

The issues in the case are going to be VERY fact specific and DEPENDENT. It is really hard to seek, give, or get meaningful advice in such cases on a forum. He may well end up with a fine outcome. He may end up getting horribly shafted. Hopefully, it is a good result. However, I am not sure that anyone can do much to assist, help at this point by offering advice here. It really is going to be an "on the ground" situation and the Soldier is advised to get good legal advice and fight for the best outcome. We can provide moral support, but, this is one of those situations where there is not much prospectively to be done. The situation and facts are mostly fixed, so it is now up to the process and how it plays out that will determine the outcome.
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Non-judicial punishment (NJP). Commanding officers can levy NJP to their service members for minor disciplinary offenses under Article 15 of the UCMJ. Each of the Services uses different names for NJP to include "Article 15" in the Army and Air Force, "Captain's Mast" or "Mast" in the Navy and Coast Guard, and "Office Hours" in the Marine Corps. 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.
Judicial punishment (court-martial). If you are stopped on the installation, or the civilian authorities are not prosecuting you, you can still receive a court-martial for a 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.

Military administrative actions
Regardless of whether you are being charged by civilian authorities or receiving UCMJ action, your commanding officer can take administrative actions against you. These actions may 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

COMMENT BY JASON PERRY: Please ensure you read comments below for clarification
 
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2nd part DUI laws
These laws apply to anyone including active military that are stopped by any state, county, or city law enforcement. Active military will be dealt with the same as a civilian. Then within 24 hours of their arrest they must report to their commander.

They cannot be charged again for the DUI or punished by the military for that actual charge because that is a double jeopardy type situation, but they can be charged for misconduct and face the consequences of that as well as the charge for DUI in civilian court. This to me became a little confusing, this is still being charged twice it’s just worded differently to avoid the legal circle of double jeopardy. RCW 38.38.088 (Article 13) Punishment prohibited before trial states “no person, wile being held for trial or the result of trial may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon the person be any more rigorous than the circumstances required to insure their presence, but the person may be subjected to minor punishment during that period for infractions of discipline” (2009).

COMMENT BY JASON PERRY: Please ensure you read comments below for clarification
 
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MattR77 said:
...For all you out there who partake in alcohol while dealing with these kinds of issues, don't do it...
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gsfowler said:
Amen! For whoever reads this, DO NOT DRINK while in the WTU or CBWTU. We soldiers work to hard and have to much at stake to risk it. Not only will it affect our lives, it affects the lives of our family (even future family) as well as the command in place to guide us through the MEB/PEB.
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Indeed albeit as it should be applicable to being in any military organization while navigating through the DoD IDES MEB/PEB process in my opinion!

To that extent, if the unfortunate event occurs then the same potential negative dispositions may result regardless of the command affiliation.

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
AmyGallay, I posted a comment in your posts advising folks to read on as there are some errors. Normally, I would just reply, but, with the posts spread over three separate posts, I was concerned readers would miss a single reply without more indication of a reply.

Your first post (excerpted below) was mostly right. But there were a couple of issues:

AmyGallay said:
.....
Judicial punishment (court-martial). If you are stopped on the installation, or the civilian authorities are not prosecuting you, you can still receive a court-martial for a 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."
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This suggests that you need to be on the installation to be tried at Court-Martial. The UCMJ applies world-wide, 24/7...Many years ago, there was a nexus-test between the offense and the military. One of the elements of that test was where it occurred. That is no longer the case- it does not matter if you are on base or off as to whether there is military jurisdiction.

Also, as I explained before, there is no double jeopardy issue if there sovereigns are different (i.e, state and federal). If a civilian state authority prosecutes for DUI, there is no prohibition on the military, as the federal sovereign, prosecuting.

The
AmyGallay said:
2nd part DUI laws

....They cannot be charged again for the DUI or punished by the military for that actual charge because that is a double jeopardy type situation, but they can be charged for misconduct and face the consequences of that as well as the charge for DUI in civilian court. This to me became a little confusing, this is still being charged twice it’s just worded differently to avoid the legal circle of double jeopardy. RCW 38.38.088 (Article 13) Punishment prohibited before trial states “no person, wile being held for trial or the result of trial may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon the person be any more rigorous than the circumstances required to insure their presence, but the person may be subjected to minor punishment during that period for infractions of discipline” (2009).

COMMENT BY JASON PERRY: Please ensure you read comments below for clarification
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The above bolded is just wrong. I am not going to cite the cases- this whole topic is a spin off from the subject of the PEB FORUM in the first place. However, I can tell you as a former Senior Trial Counsel (military prosecutor) that this double jeopardy statement is flat wrong. Most times, out of comity, judicial efficiency, and other principles, the military will not choose to prosecute if the civilian authorities do. But, different sovereigns make double jeopardy not an issue.

AmyGallay said:
The Supreme Court decision does not allow commands to punish members for offenses committed outside the jurisdiction of the military.

http://bbvm.wordpress.com/2009/12/10/court-rejects-rule-making-sailors-report-dui-arrests/

Read up on your rights. Don't believe what you are told by those who have not seen or been in your situation.


COMMENT BY JASON PERRY: Please ensure you read comments below for clarification
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Again, this is wrong. First, the rule about this changed, I think it was 50 or 60 years ago. Second, the post links to a Navy Marine Corps Court of Criminal Appeals case- not the Supreme Court.

I would say to the original poster or anyone in their situation, don't just read up on your rights- take the advice of your attorney (meaning you should get one).

I am not trying to blast anyone here...it is just important that accurate information be put out and I was worried there might be some confusion.
 
My mistake. I was thinking about drugs.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. All Soldiers must be processed for separation after a second offense.
 
Here is some current guidance found on Military One Source:


Punitive actions under the Uniformed Code of Military Justice (UCMJ) are available to the military if you are not being prosecuted by civilian authorities, which is typically the case if you were stopped for a DUI while on the installation. The military cannot administer action under the UCMJ for the same offense if you are being charged by civilian authorities. This applies regardless of the outcome of the civilian case. You may still be subject to UCMJ actions for associated misconduct that is not being prosecuted by civilian authorities, such as disorderly conduct or resistance to law enforcement officials.

  • Non-judicial punishment (NJP). Commanding officers can levy NJP to their service members for minor disciplinary offenses under Article 15 of the UCMJ. Each of the Services uses different names for NJP to include "Article 15" in the Army and Air Force, "Captain's Mast" or "Mast" in the Navy and Coast Guard, and "Office Hours" in the Marine Corps. 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.
  • Judicial punishment (court-martial). If you are stopped on the installation, or the civilian authorities are not prosecuting you, you can still receive a court-martial for a 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.
Military administrative actions
Regardless of whether you are being charged by civilian authorities or receiving UCMJ action, your commanding officer can take administrative actions against you. These actions may 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.
Additional assistance
If you have been charged with a DUI or DWI, you should consult your military area defense counsel (ADC) for further advice.The ADC can provide you confidential advice while allowing you the right to hire a civilian defense attorney.

If you have been charged under the UCMJ (i.e., LOR, Article 15, or court-martial), you are entitled to free representation by a military ADC, or you may opt to hire a civilian attorney, at your own expense. If you are facing criminal charges off-installation, then the ADC cannot represent you in civilian court and you may need to hire a civilian attorney for representation. Dependents and civilian family members are not entitled to representation by a military ADC regardless of the location of the incident, and would need to seek civilian representation regardless, if they deem necessary.

Please note that if a member faces trial in an off-installation civilian court, he or she may need to consult a civilian defense attorney.
 
One thing to consider is other misconduct such as failure to follow a direct order. I know I have counseling that I have signed as well as a personal profile that have alcohol restrictions. As long as I have been in the WTU/CBWTU alcohol consumption has been forbidden.
 
Jason Perry said:
AmyGallay, I posted a comment in your posts advising folks to read on as there are some errors. Normally, I would just reply, but, with the posts spread over three separate posts, I was concerned readers would miss a single reply without more indication of a reply.

Your first post (excerpted below) was mostly right. But there were a couple of issues:



This suggests that you need to be on the installation to be tried at Court-Martial. The UCMJ applies world-wide, 24/7...Many years ago, there was a nexus-test between the offense and the military. One of the elements of that test was where it occurred. That is no longer the case- it does not matter if you are on base or off as to whether there is military jurisdiction.

Also, as I explained before, there is no double jeopardy issue if there sovereigns are different (i.e, state and federal). If a civilian state authority prosecutes for DUI, there is no prohibition on the military, as the federal sovereign, prosecuting.

The


The above bolded is just wrong. I am not going to cite the cases- this whole topic is a spin off from the subject of the PEB FORUM in the first place. However, I can tell you as a former Senior Trial Counsel (military prosecutor) that this double jeopardy statement is flat wrong. Most times, out of comity, judicial efficiency, and other principles, the military will not choose to prosecute if the civilian authorities do. But, different sovereigns make double jeopardy not an issue.



Again, this is wrong. First, the rule about this changed, I think it was 50 or 60 years ago. Second, the post links to a Navy Marine Corps Court of Criminal Appeals case- not the Supreme Court.

I would say to the original poster or anyone in their situation, don't just read up on your rights- take the advice of your attorney (meaning you should get one).

I am not trying to blast anyone here...it is just important that accurate information be put out and I was worried there might be some confusion.
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That was quoted from military.com

If it occured off base, it is not military jurisdiction. The DUI. Now they can charged you with something else. Conduct unbecoming, ect. Well, just letting you know what I saw working at the hospital and dealing with the drunks.

Isn't dual prosecution rare?
I have NEVER seen an off base DUI get an Article 15, only on base.

Get a lawyer, take it day by day and never do it again.
 
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AmyGallay said:
That was quoted from military.com

If it occured off base, it is not military jurisdiction. The DUI. Now they can charged you with something else. Conduct unbecoming, ect. Well, just letting you know what I saw working at the hospital and dealing with the drunks.
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Not so. The elements of the UCMJ jurisdiction are that the member is "subject to the code," and that there is an offense under the code. It does not matter where the offense occurs. Article 111 covers "Drunken or reckless operation of vehicle, aircraft, or vessel." There is no requirement, or limitation, that the offense occurs "on base."

(If you really wanted to get into the vagaries or details of this type of situation, there are some issues with whether the State can prosecute on a military installation. That issue turns on whether it is an "exclusive federal installation" or whether there is reservation of state jurisdiction. This actually is the case with all crimes. Some bases are dual federal and state reservations, some are purely one or the other. It can get quite complicated). But, what everyone should understand is that the UCMJ is not based on location. It is based on status of the accused.

Isn't dual prosecution rare?
I have NEVER seen an off base DUI get an Article 15, only on base.
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It is rare. It is usually the case that if the civilian authorities are prosecuting and there is no military nexus/interest in the crime, then the military will almost always defer the prosecution. Most of the reason for this is that it so long as someone is prosecuting, there is not really a need to also prosecute in the military. It saves resources for the military, and it keeps down issues that can crop up with having multiple prosecutions. I personally prosecuted a case for a period of time when the Soldier was charged by the civilian authorities, then they dropped the charges and the command then preferred charges, the GCMCA referred the charges to a court-martial. All offenses occurred off post.

When I was in command, several of my Soldiers were given Art. 15's for DUI off post (even though the civilians were prosecuting as well. This was based on policy letters in my command on how DUIs were to be handled- as always, though, under UCMJ commanders are to be free to decide how to handle cases unless there is a withholding policy. At that time, there was a withholding policy for Senior NCO/Officer misconduct, cases involving violence, and DUIs. In some cases, the civilian charges were dismissed, or there was a plea bargain). Years later, while a JAG, the post where I was located at would usually not take any direct UCMJ action... if there was an off-post DUI, the civilians would handle it. On post, the Federal Magistrate court would take the case and the JAGs who were Special Assistant US Attorneys would prosecute. It is handled differently at different posts, different commands, and, like always, it is dependent on the circumstances. However, just because it does not happen often, does not mean it cannot. It is also the case that sometimes a command will call the civilian authorities and ask them to not prosecute if the military will. (I have had cases dealing with administrative discharges where this has happened- Soldier is arrested off post, civilian authorities deferred to the military, and the military took UCMJ action.

Get a lawyer, take it day by day and never do it again.
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I agree.
 
I think you bring up some great points Jason. I also want to point out that an article 15 does not have to be exclusive to the DUI offense. What I very commonly saw was an article 15 given for Article 92, failure to obey. It is a catch all. The commander gives a safety brief and says "don't drink and drive". The soldier goes out and does just that, they have failed to follow the order, and get hammered on it. This is generally what a CG uses via his policy letter on a post if a soldier gets a DUI on or off base. This in the end gives the SM the double whammy of a civilian prosecution, and UCMJ. It also tends to cover the backside of a command, and sends a message.
 
Also a friendly reminder that some forget, that I have seen Jason mention I believe. If you are a blue ID card holder, you can still fall/be prosecuted under the UCMJ.
 
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