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Legal Issues for the First Sergeant

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

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Legal Issues for the First Sergeant

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  1. Legal Issuesfor theFirst Sergeant Major Andrew Barker Captain Satura Gabriel

  2. 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 • Sexual Harassment Law • Religion in the Workplace • Private Organizations • Commander-Directed Mental Health Evaluations • Questions?

  3. 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

  4. 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

  5. Deliver Capabilities to Command & the Warfighter

  6. OUR Relationship – Discipline • 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

  7. Another Resource http://milcom.jag.af.mil

  8. 2. Disciplinary Options NOTHING - COUNSEL - LOC - LOA - LOR - ART 15 - COURT-MARTIAL • Type of Offense • Facts and Circumstances • Offender • Impact on Unit • Consequences on the Offender

  9. 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.

  10. 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.

  11. Advice – What if We Do Not Agree? What happens when the JAG is here DO NOTHING COUNSEL LOA LOR ART 15 COURT-MARTIAL And a squadron commander is here If they just can’t agree, they should jointly take it up a level

  12. 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

  13. 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

  14. 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

  15. 4. Professional vs. Unprofessional Relationships

  16. Professional vs. Unprofessional Relationships • 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?

  17. Unprofessional RelationshipsExamples • 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

  18. Fraternization Examples • Prohibited conduct – Officers will not • Gamble • Lend money* • Borrow money* • Date • Sexual relationships • Live together* • Go into business together * Limited exception exists

  19. Professional and Unprofessional Relationships • 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!

  20. 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”

  21. What can I do? • Preventive Measures • Written policy updated? • Training • Advertise complaint system • Take prompt, corrective action • Coordinate action with JA, EO, civilian personnel

  22. 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)

  23. 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)

  24. Staff Meeting Prayer Accommodation Practice Apparel Religion in the Workplace

  25. 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?

  26. 8. Commander-Directed Mental Health Evaluations • 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

  27. Conclusion • Where To Turn? • JAG Office • JAG Relationship- What to expect • Military Justice – Truths and Myths • ADC & Accused • Professional vs. Unprofessional Relationships • Sexual Harassment • Religion in the Workplace • Private Organizations • Commander-Directed Mental Health Evaluations

  28. QUESTIONS? COMMENTS?

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