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Legal Issues for the First Sergeant. Major Andrew Barker Captain Satura Gabriel. Legal Issues for the First Sergeant. Where To Turn? JAG Office JAG Relationship- What to expect Military Justice – Discipline/Truths and Myths ADC & Accused Professional vs. Unprofessional Relationships - PowerPoint PPT Presentation
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I n t e g r i t y - S e r v i c e - E x c e l l e n c e
The Judge Advocate General’s School
1
Major Andrew Barker
Captain Satura Gabriel
Legal Issuesfor the
First Sergeant
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Legal Issues for the First Sergeant
1. Where To Turn? JAG Office JAG Relationship- What to expect
2. Military Justice – Discipline/Truths and Myths3. ADC & Accused4. Professional vs. Unprofessional Relationships5. Sexual Harassment Law6. Religion in the Workplace7. Private Organizations8. Commander-Directed Mental Health Evaluations9. Questions?
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
1. Where To Turn
What does typical base legal office look like? SJA (0-5/senior 0-4) Deputy SJA Assistant SJAs
0-7 years of experience Captain after 6 months of good service All have undergraduate and law school
degrees Most attend COT and JASOC (some are
ROTC and FLEP)
Paralegals Many cross-trainees = military
experience
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
JAG Corps TodayDemographics
Judge Advocates and Paralegals come from diverse backgrounds. Together, they
are a strong, capable, and competent team that delivers legal capabilities worldwide to command and the warfighter
16%84%
Paralegal Sources
Non-Prior ServiceRetraining
81%
14%4%
1%
JAG Commissioning Sources
Direct Appointment
ROTC
USAFA
OTS
70%
30%
JAG Corps Gender Distribution
Male
Female
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Deliver Capabilities to Command & the Warfighter
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Is it legal? If not, is there a way to make it legal? SJAs and ASJAs:
- Give a range of options
- Make a recommendation
- Provide rationale Should also advise on prudence and practicality Do the RIGHT thing
JAGs advise Commanders decide
OUR Relationship – Discipline
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
2. Disciplinary Options
NOTHING - COUNSEL - LOC - LOA - LOR - ART 15 - COURT-MARTIAL
1. Type of Offense2. Facts and Circumstances3. Offender4. Impact on Unit5. Consequences on the Offender
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Truth or Myth?
We have felonies and misdemeanors. If you get tried by a state court, the military
cannot court-martial you. Officers cannot be reduced in rank in court
or at an Article 15. Military retirees can be court-martialed. You have no appeal rights in a LOR. A General Discharge automatically upgrades
in 6 months.
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Truth or Myth?
A First Sergeant can serve an Article 15. A member can be found NOT GUILTY in an
Article 15. A First Sergeant can prefer charges against
anyone. If an airman is in trouble, you must tell him
not to talk and see the ADC. The ADC must tell you if a member is visiting
his office.
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
DO NOTHING COUNSEL LOA LOR ART 15 COURT-MARTIAL
What happens when the JAG is here
And a squadron commander is here
If they just can’t agree, they should jointly take it up a level
Advice – What if We Do Not Agree?
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
And a word about Inspections
Primary purpose is KEY!!! Mil. R. Evid. 313(b): Determine & ensure
security, military fitness, or GOAD DOCUMENT the purpose!
Urinalysis and/or dorm inspection? May be done with or without notice Unlawful weapons, contraband or other
evidence of crime can be seized
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Program began in 1974 to offset negative perceptions ADC normally selected from legal office
Competent litigator Critical role in promoting justice
and preventive law efforts
Independence of the ADC enhances
effectiveness Full-time job: represent individuals facing
disciplinary or adverse administrative actions Outside of installation chain of command Reports through USAF Judiciary to TJAG
Needs and deserves strong command support
3. Area Defense Counsel
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Dealing with an Accused
Mental health watch Limited Privilege for Suicide Prevention
Right to ADC and ADC visits Confinement bag
Is it right? If not, unit may pay. Unit Role
Pretrial confinement Confinement
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
4. Professional vs. Unprofessional Relationships
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
AFI 36-2909 Professional: “Contribute to the effective operation
of the Air Force” Unprofessional: “On or off duty…detract from
authority…result in, or reasonably create the appearance of:” Favoritism Misuse Mission abandonment
Who can be in one? So, what’s fraternization?
Professional vs. Unprofessional Relationships
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
High Risk! Organizational relationships
Supervisory or command authority Dating and close friendship Shared activities
Accommodations, vacations, transportation, off-duty interests
Test: Frequency & official purpose/benefit
Example: Regular golf game
Unprofessional RelationshipsExamples
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Prohibited conduct – Officers will not Gamble Lend money* Borrow money* Date Sexual relationships Live together* Go into business together
Fraternization Examples
* Limited exception exists
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Practical advice It’s now YOUR job! Don’t hesitate to act
Appearances count Uncorrected, it’s corrosive! Minimum: stop what’s
unprofessional Full spectrum
JA is there to help!
Professional and Unprofessional Relationships
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Sexual Harassment
Quid pro quo Sexual favors for job benefit Job detriment for lack of sexual favors Generally supervisor/subordinate Law and policy clear
Hostile Work Environment Abusive work environment created
(words/actions) Interferes with job performance Between “mere utterance” and “nervous breakdown”
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Preventive Measures Written policy updated? Training Advertise complaint
system
Take prompt, corrective action
Coordinate action with JA, EO, civilian personnel
What can I do?
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
6. Religion in the Workplace
SOURCES US Constitution (1st Amendment) 10 USC 774, Religious Apparel: Wearing While in Uniform 10 USC 2000bb et seq., Religious Freedom Restoration Act DoDI 1300.17, Accommodation of Religious Practices
Within the Military Services (10 Feb 09) AFJI 48-110, Immunizations and Chemoprophylaxis, (29
Sep 06) Memorandum, Military Chaplains, The Under Secretary of
Defense for Personnel and Readiness (30 Sep 11) Memorandum, Uses of DoD Facilities, General Counsel of
the Department of Defense (21 Sep 11)
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Religion in the Workplace
AF-SPECIFIC SOURCES AFI 36-2706, Equal Opportunity Program Military and
Civilian (5 Oct 10) AFI 36-2903, Dress and Personal Appearance of Air Force
Personnel (18 Jul 11) AFI 36-3204, Procedures for Applying as a Conscientious
Objector (15 Jul 94) Revised Interim Guidelines Concerning Free Exercise of
Religion in the Air Force (9 Feb 06) Memorandum, Maintaining Government Neutrality
Regarding Religion, Chief of Staff (1 Sep 11)
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Staff Meeting PrayerAccommodation
PracticeApparel
Religion in the Workplace
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7. Private Organizations
Is it a PO or UA? What difference does it make? Mandatory Membership?
Official Endorsement?
Fundraisers? AFI 34-223 & AFI 36-3101 Location, Activity, Frequency, Liability
Why involve JA?
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Legitimate mental health problems
You can encourage voluntary mental health care Don’t coerce!
Only commanders can make members go to MHE Non-Emergency Emergency
LPSP
8. Commander-Directed Mental Health Evaluations
I n t e g r i t y - S e r v i c e - E x c e l l e n c e
Conclusion
1. Where To Turn? JAG Office JAG Relationship- What to expect
2. Military Justice – Truths and Myths3. ADC & Accused4. Professional vs. Unprofessional Relationships5. Sexual Harassment6. Religion in the Workplace7. Private Organizations8. Commander-Directed Mental Health Evaluations
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