legal issues

OFFICE OF THE STAFF JUDGE ADVOCATE

LEGAL ISSUES

Captain Greg WeissChief, Military JusticeTelephone: 242-6394

OFFICE OF THE STAFF JUDGE ADVOCATE

AGENDA

• Fraternization

• Homosexual Conduct Policy

• Ethics

• Military Justice

OFFICE OF THE STAFF JUDGE ADVOCATE

FRATERNIZATION

OFFICE OF THE STAFF JUDGE ADVOCATE

FRATERNIATION

• REFERENCES (Punitive in nature):

• DLIFLC & POM Command Policy, 12 April 2002.

• Army Regulation 600-20, Army Command Policy, 15 July 1999.

• TRADOC Regulation 350-6, Enlisted Initial Entry Training (IET) Policies and Administration, 3 July 2001.

OFFICE OF THE STAFF JUDGE ADVOCATE

FRATERNIZATION

Definitions:

• Initial Entry Training (IET) Student

• Carrerist Student

• Permanent Party

• Improper Relationships

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FRATERNIZATION

• General Prohibition:

• Compromises the integrity of the chain of command.

• Preferential treatment

• Improper use of rank or position for personal gain

• Exploitative or coercive in nature

• Adverse impact on good order, discipline,authority, morale, or the ability of the command to accomplish its mission

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FRATERNIZATION

Specific Prohibitions:

• Enlisted Permanent Party Personnel:

– Any Military or Civilian employee in their supervisory chain of command

– Any Officer– Any IET Student

• Officer Permanent Party Personnel:

– Any Officer or Civilian Staff in their supervisory chain of command

– Any Enlisted member (IET Student, Careerist Student, School Staff or Permanent Party)

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• Equipment

• Communications

• Time

• Personnel

• Vehicles

• Government Position

GOV

USING GOVERNMENT RESOURCES

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THE ARMY’S ADVOCATES FOR 225 YEARSTHE ARMY’S ADVOCATES FOR 225 YEARS

Department of DefenseHomosexual Conduct Policy

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Homosexual Conduct Policy

• Implements 10 U.S. Code § 654

• Implements DoD Policy, DoD Directives 1332.14; 1332.30

• Policy is a balance between the legal prohibition of homosexual conduct and the privacy rights of servicemembers

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What does the Law Say?

• “A member of the Armed Forces shall be separated if one of the following findings is made:– “the member has engaged in, attempted to engage in, or

solicited another to engage in a homosexual act or acts,”

– “the member has stated that he or she is a homosexual or bisexual, or words to that effect,”

– “the member has married or attempted to marry a person known to be of the same sex.”

OFFICE OF THE STAFF JUDGE ADVOCATE

THE ARMY’S ADVOCATES FOR 225 YEARSTHE ARMY’S ADVOCATES FOR 225 YEARS

What are the Limits on Inquires into Homosexual Conduct?”

Applicants for enlistment will not be asked or required to reveal their sexual orientation. Applicants for enlistment will not be asked if they have engaged in homosexual conduct. Only a service member’s commander is authorized to initiate fact finding inquires involving homosexual conduct. A commander may initiate a fact-finding inquiry only when he or she has received credible information that there is a basis for discharge.

OFFICE OF THE STAFF JUDGE ADVOCATE

What Happens if a Service member Tells Others that he/she is Homosexual or a Bisexual?

• If a service member makes a statement that he or she is a homosexual or bisexual, or makes other statements indicating a propensity to engage in homosexual acts, the commander may initiate an inquiry to determine whether that member should be discharged.

• Discharge is not required if it is determined that the service member made the statement for the purpose of avoiding or terminating military service.

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Credible Information

• A statement by a reliable person that a service member has:

– engaged or solicited another to engage in a homosexual act or said that he/she is homosexual or bisexual

– observed or heard the service member make any other statement that a reasonable person would believe was intended to convey that the service member has a propensity to engage in homosexual acts

– observed behavior by a service member that amounts to a non-verbal statement that the service member is homosexual or bisexual.

OFFICE OF THE STAFF JUDGE ADVOCATE

What Is Not Credible Information?

• Rumors, suspicious, or capricious claims that a service member is homosexual

• Others opinions that a service member is homosexual

• Going to a homosexual bar, reading homosexual publications, associating with known homosexuals or marching in homosexual rights rallies in civilian clothes

• Reports by a service member of being harassed on the basis of perceived sexual orientation

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What are Grounds for a Fact-finding Inquiry?

• Credible information must exist.

• A commander must have a reasonable belief that a service member has:

– Engaged or solicited to engage in a homosexual act

– Stated that he or she is a homosexual or otherwise indicated a propensity to engage in homosexual conduct

– Married or attempted to marry a person of the same sex

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Substantial Investigation

• The initiation of any substantial investigation into whether a service member stated that he/she was homosexual or bisexual for the purpose of avoiding or terminating military service must be approved at the Service Secretary level.

• Definition of substantial investigation: Any investigation that extends beyond questioning the member, individuals suggested by the member for interview and the member’s immediate chain of command.

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Zero Tolerance for Harassment

• Definition: Derogatory, abusive, threatening or annoying behavior directed toward an individual or group.

• Possible types of harassment– Verbal (on or off duty)

– Jody calls regarding homosexuals

– Derogatory, abusive, threatening or annoying language or references about homosexuals

– Graffiti in latrines, bulletin boards, etc.

– Anonymous threats; telephonic, electronic, etc.

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Harassment

• All servicemembers will be treated with dignity and respect and will be afforded a safe and secure environment in which to live and work.

• Harassment of servicemembers for any reason, to include perceived or alleged homosexuality, will not be tolerated.

• Commanders at every level will take appropriate action to prevent harassment of or threats against any member of the Armed Forces.

OFFICE OF THE STAFF JUDGE ADVOCATE

What Can a Service member Do If Threatened, Harassed or Accused of

Being Homosexual?

• Report harassment at once to the commander

• Commanders will take appropriate action to protect the safety of servicemembers who report threats or harassment.

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Who Can a Soldier Talk with Confidentially?

• Legal Assistance Attorney

• Chaplain

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Summary

The challenge to commanders and leaders is to enforce the statutory ban on homosexual conduct in the military while respecting the limits that the policy places on investigations of such conduct.

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ETHICS

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“Employees shall protect and conserve Federal property and shall not use it for other than authorized purposes”

5 CFR 2635.101(b)(9)

USING GOVERNMENT RESOURCES

OFFICE OF THE STAFF JUDGE ADVOCATE

USING GOVERNMENT RESOURCES

WHAT IS AUTHORIZED?WHAT IS AUTHORIZED?

Unrelated to Mission(no permission)

Supportive of Mission(with supervisor’s permission)

Directly Related to Mission

No

Ca

utio

nY

es

OFFICE OF THE STAFF JUDGE ADVOCATE

Rule: Government resources are for the benefit of the Government.

Exception: Government may benefit by allowing employees to use Government resources:-Efficiency-Morale-Public Confidence

USING GOVERNMENT RESOURCES

OFFICE OF THE STAFF JUDGE ADVOCATE

OFFICIAL USE: Accomplish mission

PERSONAL USE:

- No adverse affect official duties- Reasonable duration and frequency- Personal time- Legitimate public interest- No adverse reflection on DoD- No significant additional cost to DoD- AUTHORIZED BY SUPERVISORAUTHORIZED BY SUPERVISOR

Equipment (Computers, Copiers, Printers)

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VEHICLES

REFERENCES:

• AR 58-1, Management, Acquisition and Use of Motor Vehicles, dated 28 January 2000.

• DoD 4500.36-R, Management, Acquisition, and Use of Motor Vehicles, dated March 1994.

• DoD 5500.7-R, Joint Ethics Regulation (JER), August 1993.

• Command Policy on the Use of Government vehicles

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VEHICLES

• Official Use.

• Personal Use Prohibited.

– Home and place of duty

– Social functions

– Meals

– Side-trips

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OFFICIAL USE: Accomplish mission

PERSONAL USE:

- May not create significant additional cost to DoD- Must serve legitimate public interest

CONCLUSION: Rarely appropriate

SUPPLIES(Paper, Pens, Paper Clips, Etc.)

OFFICE OF THE STAFF JUDGE ADVOCATE

1. May I use the office copier to make myself a personal copy of my daughter’s report card to send to her grandparents?

2. May I use the copier to reproduce 75 color copies of my daughter's graduation picture?

3. May I use the copier to reproduce 200 copies of the President's address to my daughter’s graduating class?

4. May I use the office fax to receive a 40 page personal fax during working hours?

POP QUIZ...

OFFICE OF THE STAFF JUDGE ADVOCATE

OFFICE OF THE STAFF JUDGE ADVOCATE

(Not at Government Expense)(Not at Government Expense)Limited Personal Use:Limited Personal Use:- No adverse effect on official duties- Reasonable duration and frequency- Serve legitimate public interest- No adverse reflection on Government- Do not overburden communications- No significant additional cost to DoD

GOVERNMENT COMMUNICATION SYSTEMS

OFFICE OF THE STAFF JUDGE ADVOCATE

Privacy:

Any official or personal use may be monitored by the Government:

- E-mail - Internet searches/ use

USING GOVERNMENT SYSTEMS

OFFICE OF THE STAFF JUDGE ADVOCATE

You may use Government communications systems to:You may use Government communications systems to:

1. Send Faxes to advertise sale of your car?

2. Do a 12-minute lunchtime internet search about Gator Football?

3. Make off-duty toll-free long-distance call for honeymoon reservations?

4. Use DSN to call your friend at a DoD installation in Hawaii?

Pop Quiz - True/False

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GOVERNMENT TIME

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Supervisors may permit:

Excused absences: (for a reasonable length of time)- Non-profit professional associations

a. Related to employee’s dutiesb. DoD derives some benefit, andc. Participation does not interfere with official duties

- Volunteering

GOVERNMENT TIME

OFFICE OF THE STAFF JUDGE ADVOCATE

CONFLICTS OF INTEREST

• Personal Financial Interests– Includes Spouse, Minor Child, General Partner, or

Organization In Which Serving as Director, Officer, Employee, etc.

– Job Hunting and Post-government Employment

– Stock Ownership (More Than $5,000)

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CONFLICTS OF INTEREST Appearance of Impartiality

“Where an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts toquestion his impartiality in the matter,

the employee should not participate in the matter unless he has informed the

agency designee of the appearanceproblem and received authorization fromthe agency designee . . .”

5 C.F.R. Part 2635, Subpart E

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GIFTS

• Shall Not Solicit or Accept a Gift (Directly or Indirectly)

– From a Prohibited Source; or

– Because of One’s Official Position

• Gift Includes:– Services, Training, Transportation, Local Travel, Lodging

and Meals

• Prohibited Source– Anyone Seeking Official Action by the Agency

– Does Business or Seeks to Do Business W/ Agency

– Conducts Activities Regulated by Agency

– Has Interests Substantially Affected by Agency Decision

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GIFTS

What Is Not a Gift:

• Value Less Than $20

• Based on Personal Relationships

• Political Organizations

• “Doughnut Rule”

• Cards

• General Availability

• Value Paid

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GIFTS BETWEEN EMPLOYEES

• Subordinate to a Superior

• Special Infrequent Occasions– $300 Per Donating Group

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GIFTSFREQUENT TRAVELER MILES

• New DA Travel Policy (11 JANUARY 2002):– Soldiers on official travel can keep promotional

benefits

– Restrictions:

• Traveling in premium classes in uniform

• Advertising position or rank

• City-Pairs

– Frequent Traveler Benefits:

• Points or miles

• Upgrades

• Access to carrier clubs or facilities

OFFICE OF THE STAFF JUDGE ADVOCATE

SUMMARY• Be Honest - Don’t Act on Anything That May

Impact Your Own or a Family Member’s Financial Interest.

• Use Common Sense - Don’t Do Anything That Will Appear Unethical.

• Don’t Accept Gifts From Strangers or Prohibited Sources Exceeding $20 Each or $50 Combined Annually.

• Subordinates Should Not Give Gifts Exceeding $10 to Superiors Unless for a Special Occasion.

• Use Government Resources for Official Purposes Only

• Questions? Call Your Ethics Counselor.

OFFICE OF THE STAFF JUDGE ADVOCATE

Commander’s OptionsCommander’s Options

• Do Nothing

• Counseling

• Memorandum of Concern/Reprimand

• Administrative Separations

• Other Administrative Actions

• Article 15

• Court-Martial

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Adverse Administrative MeasuresAdverse Administrative Measures

• Bar to Reenlistment (AR 601-280)

• MOS Reclassification (AR 600-200)

• Revoke Security Clearance (AR 380-67)

• Corrective Training (AR 600-20)

• Relief from Duties

• Removal from Special Status

• Rehabilitative Transfer

• Adverse NCOER/OER

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Procedures for Administering an Article 15

• Part I (Initial Reading)

• Part II (Hearing before the Commander)

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Courts-MartialCourts-Martial

• Summary Court-Martial– Convened by Battalion CDR (SCMCA)

– Maximum Punishment

» 1 month confinement (E-4 and below)

» 2/3 forfeiture of pay for 1 month,

» 2 months restriction

OFFICE OF THE STAFF JUDGE ADVOCATE

Courts-MartialCourts-Martial

• Special Court-Martial– Convened by Brigade CDR (SPCMCA)

– Maximum Punishment

»6 months confinement

»2/3 forfeiture of pay for 6 months

»Reduction to E-1

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Courts-MartialCourts-Martial

• BCD Special Court-Martial– Convened by the General Officer with General Court-Martial

Convening Authority (GCMCA)

– Maximum Punishment

» 6 months confinement

» 2/3 forfeiture for 6 months

» Reduction to E-1

» Bad Conduct Discharge

OFFICE OF THE STAFF JUDGE ADVOCATE

Courts-MartialCourts-Martial

• General Court-Martial– Convened by the General Officer with General Court-Martial

Convening Authority (GCMCA)

– Maximum Punishment

» Confinement as authorized by law/death

» Total forfeiture of all pay

» Reduction to E-1

» Bad Conduct/Dishonorable Discharge

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