Posted on Nov 24, 2018
Do our legal provisions and processes allow Government to pronounce a uniformed service member guilty w/o trial & w/o evidence?
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The Constitution stipulates that all are innocent, until proven guilty, in a Court of Law, by the Preponderance of the Evidence. Given this legal premise, does a Court of Law include a Board of Inquiry in the Armed Forces and; does the Preponderance of the Evidence include a presumption of regularity and; is there a six-year rule under Military Law? Kindly explain the fine line in Law and in Practice; legal professionals are encouraged to reveal the truth about Law.
Law
Military Community Awareness (MCA)
Constitution
655x: Law
Posted 7 y ago
Responses: 8
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Gene, it appears many things are being mushed together that shouldn't be. Criminal law requires quilt beyond reasonable doubt. The "preponderance" aspect is found in civil law which is a lower standard to meet. Innocent until proven guilty isn't in the Constitution. Closest aspect would be the 14th Amendment which talks about equal protection under the law. When it comes to administrative procedures, that's where you find much of what goes on in the military. The two prior standards don't have to be met in administrative procedures. You also don't have 5th Amendment or double jeopardy protection in the administrative arena. If a duly appointed investigator is performing a JAGMAN and you refuse to answer questions, you can be punished for not answering. If one authority issues say a reprimand and a senior authority decides to bust you a rank, that's legal (although a morale killer and demonstration that the CoC isn't wired together well).
Even Courts-Martial are not the same as criminal courts although they share several process, rules of evidence, etc. stuff. Courts-Martial was established by Congress under Article 1 of the Constitution and Federal Courts under Article 3. They operate differently. Article 3, 5th Amendment RIGHT not to self incriminate, Article 1 PRIVILEGE not to self incriminate. You see Congress felt the 5th Amendment aspect should be conveyed to military members but couldn't grant a "right" under Article 1 (why? a lawyer is needed here because I don't remember). That's the extent of my engineering legal mind as I learned some of these differences when having to do JAGMANs, sit Court-Martials, etc. The worst thing you can do is make broad sweeping statements that somehow by saying them, makes it true.
Finally, if a member believes their DD-214 that gave them a DD, nasty RE Code, or whatever, the DD-214 is an administrative document in which an administrative appeal can be made to the governing Service's board. In the Navy, it's the Board of Correction of Naval Records. The other services have a similar board. These boards only look at if the process was conducted correctly, not necessarily the end result. The boards don't substitute themselves into the judgement arena either. A typical correction that a board will approve is an improper RE code (criminal act) when the reason the member was tossed was flunking the physical fitness test. A clear error. The correction that would be made would be to change the DD to honorable or other and the RE code to the one that talks about flunking the PFT. That's an unlikely extreme example but illustrates the point.
Even Courts-Martial are not the same as criminal courts although they share several process, rules of evidence, etc. stuff. Courts-Martial was established by Congress under Article 1 of the Constitution and Federal Courts under Article 3. They operate differently. Article 3, 5th Amendment RIGHT not to self incriminate, Article 1 PRIVILEGE not to self incriminate. You see Congress felt the 5th Amendment aspect should be conveyed to military members but couldn't grant a "right" under Article 1 (why? a lawyer is needed here because I don't remember). That's the extent of my engineering legal mind as I learned some of these differences when having to do JAGMANs, sit Court-Martials, etc. The worst thing you can do is make broad sweeping statements that somehow by saying them, makes it true.
Finally, if a member believes their DD-214 that gave them a DD, nasty RE Code, or whatever, the DD-214 is an administrative document in which an administrative appeal can be made to the governing Service's board. In the Navy, it's the Board of Correction of Naval Records. The other services have a similar board. These boards only look at if the process was conducted correctly, not necessarily the end result. The boards don't substitute themselves into the judgement arena either. A typical correction that a board will approve is an improper RE code (criminal act) when the reason the member was tossed was flunking the physical fitness test. A clear error. The correction that would be made would be to change the DD to honorable or other and the RE code to the one that talks about flunking the PFT. That's an unlikely extreme example but illustrates the point.
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"The Constitution stipulates that all are innocent, until proven guilty," It actually does not stipulate, or state that. Remember that guilty only applies to a criminal charge. And even in a criminal proceeding, the court will find you "guilty" or "not guilty". No one is ever found innocent.
"...in a Court of Law, by the Preponderance of the Evidence." Again, guilty is only in a criminal context. Using Preponderance of the Evidence as the burden of proof is for civil matters only.
"Given this legal premise, does a Court of Law include a Board of Inquiry in the Armed Forces"
No.
"and; does the Preponderance of the Evidence include a presumption of regularity and; is there a six-year rule under Military Law? Kindly explain the fine line in Law and in Practice; legal professionals are encouraged to reveal the truth about Law."
I'm going to stop right here. This is kind of a messy question, and asking anyone to explain the "fine line in Law and in Practice" is something you can teach an entire class on, and not meant for a small comment section. Also, the specific context and facts relating to your overall question were not included, which makes it hard to provide a response. (Does someone have a Board of Inquiry pending? Has it concluded? Did the person have, or was denied counsel?)
Which leads me to my final suggestion. Make an appointment with an attorney to discuss the specific issue, with all of the facts, and ask for advice. Most attorneys offer a free consultation. Good luck
"...in a Court of Law, by the Preponderance of the Evidence." Again, guilty is only in a criminal context. Using Preponderance of the Evidence as the burden of proof is for civil matters only.
"Given this legal premise, does a Court of Law include a Board of Inquiry in the Armed Forces"
No.
"and; does the Preponderance of the Evidence include a presumption of regularity and; is there a six-year rule under Military Law? Kindly explain the fine line in Law and in Practice; legal professionals are encouraged to reveal the truth about Law."
I'm going to stop right here. This is kind of a messy question, and asking anyone to explain the "fine line in Law and in Practice" is something you can teach an entire class on, and not meant for a small comment section. Also, the specific context and facts relating to your overall question were not included, which makes it hard to provide a response. (Does someone have a Board of Inquiry pending? Has it concluded? Did the person have, or was denied counsel?)
Which leads me to my final suggestion. Make an appointment with an attorney to discuss the specific issue, with all of the facts, and ask for advice. Most attorneys offer a free consultation. Good luck
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CPT Gurinder (Gene) Rana
Thanks LTC (Join to see); the Board or Boards have concluded and although the Recorders failed to present any evidence supporting the charges made, the officer was pronounced guilty, and; although the Service IG was still investigating reprisals against the said officer, the said officer was discharged from service prior to conclusion of IG investigation.
I will definitely pass along your sage advice.
I will definitely pass along your sage advice.
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W/o trial, w/o evidence? Just what the hell is an Art 32 then? Sir you need to expound in better than general terms. I never heard or so such in 23 years.
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CPT Gurinder (Gene) Rana
Neither had I heard of "Found Gilty of being AWOL and of Groggy Appearance without evidence and without trial by a court martial" in less time than your 23 years , but then there are always first time experiences and this was one for me. So; I questioned the concerned IG and I was told that the subordinate officer's Commander "pleaded ignorance of the law". I clarified whether ignorance was pleaded by the Commander prior to or after his subordinate officer was wrongly incriminated. The IG responded that the case was decided by a Board of Inquiry. I reminded the IG that the subordinate officer had been subjected to two Boards of Inquiry in one year based upon the same charges of "AWOL and Fatigue", for which charges the service had not shared any evidence with the service member?
Guess how this inquiry unfolded.
Guess how this inquiry unfolded.
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With less than six months after enlistment, I was charged with smoking in an unauthorized area. It was referred to a Summary Courts Martial. This particular legal action has the lowest bar of any. The O-4 explained he was acting as my defense, so I explained exactly what happened. He then said he was the prosecution. Shortly thereafter, I was found guilty. Didn’t affect me career wise or getting the highest security level possible, but adds fuel to your topic.
http://www.monterey.army.mil/Legal/trial_defense/summary_court_martials_fact_sheet.pdf
http://www.monterey.army.mil/Legal/trial_defense/summary_court_martials_fact_sheet.pdf
summary_court_martials_fact_sheet.pdf
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MCPO Roger Collins
SrA John Monette I wouldn’t say he lied, but mislead me. Had he said he would listen to my “defense” and be the person that decided my guilt or innocent, perhaps I would have kept quiet. Water under the bridge. My story was a bit of a precaution to others.Summary Courts Martial are the lone exception that misses judicial norms.
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The Constitution does not state one is innocent until proven guilty. The presumption of innocence was adjudicated in a 1895 Supreme Court case. The level of damaging evidence to determine guilt varies upon the court and accusation. Military Courts of Inquiry is non-judicial. Each session is created anew within limits of the convening authority. These "courts" are just investigative. No legal judgement is given. Information gathered could be used in a court of law.
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I'll start with being nit-picky. Show me a passage in the Constitution that stipulates innocent until proven guilty? While the right to a jury trial and the right not to self incriminate can be assumed to point to that principle in law, but as far as I can find, it's not in US Code, let alone in the Constitution.
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CPT Lawrence Cable
SGT (Join to see) - Yes, the presumption of innocence can be traced back to English Common Law, but it isn't mentioned at all in the Constitution. Coffin Verses US is a legal precedence based on the Bill of Rights, but that Right is not stated in the Constitution. There are others we take for granted, such as the Right to Privacy, which also is absent in the Constitution.
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SGT (Join to see)
CPT Lawrence Cable - for sure, but that’s why I wrote, “like many issues, it takes a Supreme Court ruling to determine the Constitutionality of something.” I never said it was mentioned in the Constitution. You wrote, “but as far as I can find, it's not in US Code, let alone in the Constitution.” Once the Supreme Court deemed it to be Constitutional, it was. It doesn’t need to be written into to Constitution with an amendment. You couldn’t find it, so I provided it for you.
The Constitution isn’t designed to be a list of rights. “You can/can’t do xyz”. It’s a framework for our government to operate within. And one of the best aspects of the Constitution is that it allowed for the ability of Judicial Review. Intended by the Framers, it was established in legal precedent in Marbury v Madison (1803). This allows for the Courts, and ultimately the Supreme Court to determine the Constitutionality of issues. (As every issue can’t possibly be addressed in the Constitution).
You can list almost 230 years of topics that are constitutional, like privacy, the presumption of innocence, abortion, th right to bear arms as an individual, etc, that aren’t expressly listed in the Constitution. But they are, due to Supreme Court rulings.
You write, “Coffin Verses US is a legal precedence based on the Bill of Rights, but that Right is not stated in the Constitution. There are others we take for granted, such as the Right to Privacy, which also is absent in the Constitution.” To be clear. Coffin is the precedent. The rationale for the opinion in Coffin is partially rooted in several of the Amendments in the Billif Rights. But the majority of the rights we enjoy aren’t expressly listed in the Constitution.
The Constitution isn’t designed to be a list of rights. “You can/can’t do xyz”. It’s a framework for our government to operate within. And one of the best aspects of the Constitution is that it allowed for the ability of Judicial Review. Intended by the Framers, it was established in legal precedent in Marbury v Madison (1803). This allows for the Courts, and ultimately the Supreme Court to determine the Constitutionality of issues. (As every issue can’t possibly be addressed in the Constitution).
You can list almost 230 years of topics that are constitutional, like privacy, the presumption of innocence, abortion, th right to bear arms as an individual, etc, that aren’t expressly listed in the Constitution. But they are, due to Supreme Court rulings.
You write, “Coffin Verses US is a legal precedence based on the Bill of Rights, but that Right is not stated in the Constitution. There are others we take for granted, such as the Right to Privacy, which also is absent in the Constitution.” To be clear. Coffin is the precedent. The rationale for the opinion in Coffin is partially rooted in several of the Amendments in the Billif Rights. But the majority of the rights we enjoy aren’t expressly listed in the Constitution.
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CPT Lawrence Cable
SGT (Join to see) But precedent isn't witten Law and rulings from SCOTUS tend to reflect the views of the current ruling class, just look at the views on race and equality.
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SGT (Join to see)
CPT Lawrence Cable - respectfully, current views not withstanding, a Supreme Court ruling is the effective law of the land. The Supreme Court has the final say on legislation (if it gets to their level).
Also, as Justices receive life terms, they tend to not reflect views of the current ruling class. For example, five current justices have been on for over 12 years, three of whom have served 24+ years.
Back to precedent. Now that the presumption of innocence has been determined to be a constitutional, it is. Until it’s challenged in the Courts (good luck with that), it won’t change.
This ties back to Judicial review. Yes, the Courts determine the Constitutionality of legislation. And yes, the opinion of the Court will undoubtedly change with the times. But this was what the Framers wanted. A dynamic, not static, system that could adapt to serve the needs of the people as times changed. Without amending the Constitution every time.
Also, as Justices receive life terms, they tend to not reflect views of the current ruling class. For example, five current justices have been on for over 12 years, three of whom have served 24+ years.
Back to precedent. Now that the presumption of innocence has been determined to be a constitutional, it is. Until it’s challenged in the Courts (good luck with that), it won’t change.
This ties back to Judicial review. Yes, the Courts determine the Constitutionality of legislation. And yes, the opinion of the Court will undoubtedly change with the times. But this was what the Framers wanted. A dynamic, not static, system that could adapt to serve the needs of the people as times changed. Without amending the Constitution every time.
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Seems preposterous to me, Captain. My father was a Federal Administrative Law Judge. I don't believe that he would condone this. (I am no legal professional myself.) CPT Gurinder (Gene) Rana
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