Complaining – UCMJ

I’m going to complain!

That is a frequent and understandable response to potential UCMJ investigations and actions, which often take weeks, months, sometimes years before charges are preferred. All the while the person is flagged, can’t take leave, and generally treated like dirt.

Should you contact your Congressman, the IG, or file an Article 138, UCMJ, complaint? Answer – you should seriously consider not doing that.

That is one of the first questions a client or client’s family member asks when they are in trouble – should I contact my congressman, or I’m going to get my congressman to help, or we want to go to the media.

The services do not allow an Article 138, UCMJ, complaint for actions related or connected to a UCMJ action. That is because there are other built in means to review and appeal wrongful actions.

I do not recommend contacting the congressional representatives or the IG. So why do I say that. You will not get help to terminate any adverse actions, and in some cases it will help get you convicted and put in the Brig.

Some years ago I was able to get a U.S. senator to assist in the post-trial case of a National Guard officer. The reason the senator helped was his own belief in the case and because a large majority of his ‘parishioners’ believed in the client’s cause. Media, organizations, and people across the state were unhappy about what was happening to the client and they voiced their opinions. That gave the senator the reason and ability to intercede, with some success. This was an unusual case. There have been many high visibility cases over the years where there has been congressional interest but no help to the client(s).

If you are accused of a sexual assault or child abuse it is unlikely the congressman is going to get involved to help you – it’s just not a good political stand to make. This is especially so in light of all the politicking about lack of prosecution of sexual assaults in the military.

When you make a congressional complaint, the congressman’s staffer first sends it to the Service congressional liaison office. Most of the work is done by staffer’s or operatives at the congressman’s local field office. That office then sends it through the bureaucratic change to your commanding officer for an answer.

The SJA for the commanding officer, the same SJA reviewing your case, will assist prepare a response. The most frequent response to a congressional inquiry is that you are going to have a fair trial, you are or will be represented by a military lawyer or can hire a civilian, and that your rights will be protected. That’s about the best you can expect. That response then goes back up the bureaucratic chain to the congressman’s office. You will, in most cases, get a nice letter saying, “thanks for your inquiry, here is the Army’s answer.” That’s the best news.

Now, this could happen to you.

Client A is facing administrative discharge for drug use. She writes to her congressman asking for help. The letter goes through the process and ends up at her command for them to prepare an answer. In that letter she makes various statements about the allegations being untrue and why they are untrue. That letter – her own statements – became evidence against her in the administrative discharge hearing, which recommended an other than honorable conditions discharge for drug abuse.

Client B was facing court-martial for various offenses. At the time the offenses came to light the client decided to complain to his congressman about a number of issues. In the process the client made several admissions against interest – effectively a confession – to some of the charges. Thus client B’s letter to his congressman became evidence against him.

Neither client was helped by 10 U. S. Code §1034. This statute is intended to protect servicemembers from retaliation for contacting your member of congress or the inspector general’s office.

The Court of Appeals for the Armed Forces has decided that the contents of a congressional inquiry may be used against an accused in a prosecution. See the case of United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003). In Gogas the prosecution was allowed to use information in the congressional letter as aggravation in sentencing.

To have such evidence excluded from trial you would need to show that it was the government’s intent to punish you for making the complaint in the first place.

Also, litigation by media seems to be in vogue. Be VERY careful what you are your defense lawyer say to the media. What is said can come back to haunt you at trial. Several accused’s in high visibility cases have make the mistake of saying stuff to the media, having it reported, and then hearing the words used at trial against them. There have been several high visibility cases where the government has tried to subpoena the notes and full interviews for use in prosecutions. Generally they fail, but there may come a day when there is some success.

These issues are ones to be discussed thoroughly with your military defense lawyer.