Command Services

Admiralty Letter Report

"Any personal injury, loss of life, property damage, salvage, oil spill recovery/clean-up or rescue, whether occurring at sea or on land, arising in whole or in part from the operation of any DON-owned or operated ship, submarine, boat, gig, tug, barge or other vessel upon navigable waters, or caused by ship-launched aircraft or weapons, is considered an admiralty incident." Do Not Include: Opinions Recommendations Endorsement by the convening authority or the chain of command

Accountability & Transparency of FOIA

"Profound national commitment to ensuring an open Government." - President Obama, 21 January 2009 Presumption of openness in responding to FOIA requests

Goldman v. Weinberger (1986)

"The First Amendment does not prohibit the challenged regulation from being applied to petitioner even though its effect is to restrict the wearing of the headgear required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations.

SC Standard on Military Free Speech

"While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it"

9 FOIA Record Exemptions

(1): Classified material Must be classified at the time of the request (2): Internal Personnel Matters (3): Specifically exempted from disclosure by statute (4): Trade secrets and commercial or financial information obtained from a person and privileged or confidential (5): Privileged Information Deliberative process or inter/intra-agency memo Attorney work-product Attorney-client relationship material *****CMD investigations. What if portions were not appr*** (6): Personal Privacy TRIAD has no right to privacy (7): Law Enforcement purposes (8): Records of agencies responsible for the regulation or supervision of financial institutions (9): Geological and geophysical information and data, including maps, concerning wells

Impermissible Political Activities

- Campaign for anyone - Campaign or hold public office (generally) - Special rules for reservists - Political posters in govt housing - Stuff envelopes - No large bumper stickers or signs on POV - Speaking appearances for a candidate (even privately) - Fundraising for candidate, party, or cause - Distribute partisan political literature - "Sharing" or suggesting others "like" a political post/candidate on social media

Letter of Instruction (LOI)

- NOT non-punitive censure - written administrative counseling tool - Not a substitute for disciplinary action - Includes description of weaknesses, recommendations for improvement, description of desired performance standards, reasonable period of time for correction *CAN be quoted in FITREPS* and used in separation processing and DFC (unlike NPLOC) Often used in detachment for cause cases

Non-mandatory Bases for Separation

- Pattern of Misconduct - Unsatisfactory Performance - Commission of a Serious Offense (Non-Mandatory) - Civilian Conviction

Types of Administrative Investigations

- Preliminary Inquiry - LitRep - Command Investigation - Board of Inquiry - Admirality Letter

Nonpunitive Measures Characteristics

- Used only for minor infractions - Increase efficiency of Commands Develop acceptable behavior Can be verbal or in writing - NOT Punishment

Big 3 Questions

1. Has a basis for ADSEP been met? 2. If at least one basis has been met: Should he member be separated or retained? 3. If the board votes to separate: What should the characterization of service be? -Honorable, General, Other than Honorable

Grounds for NJP Appeal

1. NJP was Unjust NJP was unlawful or improper (e.g., lack of evidence) 2. Punishment Disproportionate Unfair punishment for offense(s) committed Practice tip: provide a sampling of similar cases punishment received for consistency Time considerations Appeals must be filed five working days from NJP; extension granted for good cause by the review authority.

CI for LODD

A command must *convene an investigation* and make findings concerning misconduct and line of duty when: (1) the injury was incurred under circumstances which suggest a finding of "misconduct" might result. These circumstances include, but are not limited to, all cases in which a qualifying injury was incurred: (a) while the member was using illegal drugs or abusing prescription drugs; (b) while the member's blood alcohol content was equal to or exceeded the lesser of .10 percent by volume or the blood or breath alcohol content limit under the law of the State in which the conduct occurred. This does not preclude the convening of an investigation if the blood-alcohol percentage measured less than .10 percent by volume or the blood or breath alcohol content limit under the law of the State in which the conduct occurred, if the circumstances so indicate; or (c) as a result of a bona fide suicide attempt. (2) the injury was incurred under circumstances that suggest a finding of "not in line of duty" might result; (3) there is a reasonable chance of permanent disability and the commander considers the convening of an investigation essential to ensure an adequate official record is made concerning the circumstances surrounding the incident

Command Investigations - Overall

A more comprehensive means of investigation Used to analyze information about a significant incident of interest to the command and superiors Command Investigation JAGMAN most appropriate for: Significant property losses Line of duty investigations Deaths - USS COLE Groundings, floods, fires, and collisions - USS GEORGIA, USS GUARDIAN But not generally used for major international incidents or incidents likely to result in claims or litigation against or for DoN or US - LITREP

LODD - Relationship to Disciplinary Action

An adverse line of duty/misconduct determination is not a punitive measure Commanders may/should take independent disciplinary action when deemed appropriate Line of duty and misconduct determinations are not binding at subsequent disciplinary or administrative proceedings

NPM - Request for Redress

Article 1150, Navy Regulations: Any person in the naval service who considers him or herself wronged by an act, omission, decision or order of a person who is superior in rank or command may report the wrong to the proper authority for redress. Article 138, UCMJ: any member of the armed forces who believes they've been wronged by their CO may request redress

ADSEP Board Members

At least three E-7 or above, senior to respondent Senior member is O-4 or above Majority must be commissioned or warrant officers Reservist Respondent = at least 1 reserve officer

Nieto v. Flateau

Banning anti-Islamic decals while allowing pro-islamic ones in a military base is illegal viewpoint discrimination

FOIA Redaction Techniques

Black Marker Redactions - DoD says NO White tape and Hand-drawn boxes Technologically Enhanced processes ***Adobe Pro 8 or 9**** RedactXpress w/in FOIAXpress REDAX Software

Investigations - Command Responsibilities

Commander initiates investigations into incidents occurring within his/her command If CO believes an incident is inappropriate for his/her command to investigate, another command may conduct the investigation Which other command? Why? If more than one command involved in an incident, only one investigation should be conducted; COs will discuss and decide What are the concerns?

Non-Judicial Punishment - Impose

Commanding Officers ALL military members of command (including TAD) Date of NJP, not date of offense, determines jurisdiction and which CO can impose Embarked? XO as Acting CO OICs (Officers in Charge) Principal Assistant for Flag/General Officers (COS)

CI: Opinions

Conclusions and reasonable inferences based upon the findings of fact Each opinion MUST cite the finding of fact(s) upon which it is based

Step 6: Begin the search for responsive records

Conduct a reasonable search of all records created or maintained by your activity (including Privacy Act systems) Created some sort of tasker

Normal liberty as a form of punishment

Deprivation of normal liberty as a punishment, except as authorized under the UCMJ, is ILLEGAL.

CI: Recommendations

Derived from / Based on the mandate in convening order No need to cite to specific findings or opinions Usually contains disciplinary recommendations, administrative corrective recommendations, operational corrections (safety stand down). NOT NOT NOT only recommendations for disciplinary action(s)

Who can Order EMI?

During normal working hours: Any superior officer, non-commissioned or Petty Officer After normal working hours: USN/USMC - Only CO/OICs

Administrative Separation Definition

Enlisted Service members who do not demonstrate the commitment or potential for further service should be separated. Training investment and potential future service v. separating that investment when no potential exists Cheaper/faster alternative to Court Martial

Step 4. Multi-Track Processing

Expedited: 10 working days Simple: 20 working days Complex: Varies

CI: Findings of Fact

Findings of fact must be as specific as possible as to times, places, persons, and events. Each finding of fact must identify one fact only, and be supported by and cite to at least one enclosure to the report. Findings of fact must reference the supporting enclosure(s) for each finding of fact - no "floating" facts! Each finding of fact contains just one fact.

Characterization of Service

Honorable "Generally met the standard of acceptable conduct and performance" General (Under Honorable Conditions) "Honest and faithful," but "significant negative aspects [of the member's record] outweighed positive aspects" Other Than Honorable "One or more acts . . . that constitute a significant departure from the conduct expected"

Parker v. Levy

I: Is Captain Levy's right to free speech in regards to negatively speaking about the Vietnam War to recruits he checks allowed to be hindered by the military? R: 2nd Amendment and UCMJ "good order and discipline" A: Parker's speech and his refusal to conduct checks on medical recruits who are going to Vietnam is having a strong negative effect on the good order and discipline of the recruits he is speaking to and thus causing potential issues for future commands. Therefore the military can limit his speech because of their stance as a separate portion of society with its own unique needs and rules. C: Parker's speech is limited and he must follow the orders given to him in order to maintain good order and discipline (you can't tell people to disobey a direct order.)

Step 2: Determine if the request falls under your cognizance

If it falls under you cognizance, continue to step 3 If it does not, refer the request to the cognizant agency or activity for direct reply to the requester

Step 1: Receiving FOIA Requests

In receipt via: Letter Email **FOIAonline** Place the request in your tracker

LODD Types

In the line of duty, not due to misconduct - or - Not in the line of duty, not due to misconduct - or - Not in the line of duty, due to misconduct One's injuries can never occur in the "line of duty" and due to his/her misconduct

Types of NPM

Informal Resolution (verbal warning) NPLOC Withholding privileges Written Counseling Extra Military Instruction Withholding or Withdrawing Advancement/Promotion/ Training/Assignment Adverse Evaluation / FitRep / Proficiency and Conduct Marks Denial of Re-Enlistment (Reenlist Code) Detachment For Cause (USN) Removal of qualifications Loss of Security Clearance Administrative Separation (getting fired)

Preliminary Inquiry

Informal tool to gather initial facts Should be completed within 3 working days Used to determine if further investigation is warranted Convening Authority (CA) can conduct personally (rare) or appoint an Investigating Officer (IO) IO is usually not a judge advocate Convening order template in JAGMAN (Sec. A-2-d) The PI report may be oral or in writing - Oral can be appropriate (facts, circumstances???) Writing strongly recommended - Report template in JAGMAN (Sec. A-2-c)

Extra Military Instruction

Instruction in a phase of military duty in which an individual is deficient, and is intended for and directed towards the correction of that deficiency EMI is not punishment! - Not excessive; - Only during reasonable times of the day; Be a reasonable number of days or hours; - Normally not more than 2 hours per day; - Not on member's Sabbath; Not mentioned in FITREP/EVAL.

Step 3: Perfect the Request

Is it a "Perfected request": - Be in writing; - cite or imply FOIA; and - reasonably describe the records being sought - if fees are applicable, fee agreement If not, reach out to the requester and assist them in perfecting the request

Political Activities ALLOWED by Service Members

Limited "private citizen" standard. May: - Register to vote and vote - Encourage others to participate in political process - Express purely personal opinions (caution) - Join a political club - Sign petitions - Attend meetings, rallies as spectator - Give money to political organization - Personal letters to editor (caution) - "Like" or "follow" political candidate/party on social media

Off-Base Assembly

MAY be prohibited if any of following: On duty Foreign country Illegal march (no permit) Violence likely No wearing uniform where: service discrediting, or military support inferred

Rights Prior to NJP

Member informed in writing: CO is considering imposing NJP Charges (with UCMJ, Article number) Right to review evidence Right to assistance Right to refuse NJP, if applicable - not right to CM Right to personal appearance - but can't waive an order 2 Year SOL (waivable by member) NOTE: No right to refuse NJP if attached to ship (Booker Rights)

Ethredge

Military officials at air force base may impose regulation on speech so long as restriction is reasonable and not an effort to suppress expression merely because public officials oppose speaker's view. We hold that the administrative order barring from RAFB "bumper stickers or other paraphernalia" that "embarrass or disparage" the President is viewpoint neutral and reasonable. Accordingly, the order does not violate the First Amendment. Therefore, we affirm the judgment of the district court.

Command Investigations - Witness Warnings

Misconduct: Art. 31(b) rights advisements only when misconduct suspected No requirement for custodial interrogation; trigger is merely if you suspect misconduct Chilling effect? Illness: If being asked about origin or injury of disease the subject has a right not to answer related questions - JAGMAN A-2-j Each witness should be told not to discuss their particular interview with other witnesses Privacy Act Waiver must be signed by anyone from whom personally identifiable information is obtained - template in the JAGMAN A-1-l

LODD Misconduct

Misconduct: The injury is intentionally incurred, or conduct that is intentional or willful neglect which demonstrates reckless disregard for the foreseeable and likely consequences of an action (this is proximate cause). In the absence of clear and convincing evidence to the contrary, all members presumed to be mentally responsible

In the Line of Duty Unless

Misconduct; Deserter; UA (sometimes... military duties) Court-Martial (DD) conviction w/ confinement Civilian felony conviction w/ confinement

Convening Order

Must be in writing. Convening Order details: Name of investigator Scope of inquiry / purpose Explicit instructions - findings of fact, opinions, recommendations Focus attention on specific interest items Set time limits - normally within 30 days SHOULD direct the IO to seek the assistance of a judge advocate

ADSEP - Notifying Respondent

Must notify the service member ("respondent") in writing: That they are being processed for administrative separation The basis or bases (reasons) for ADSEP processing The least favorable characterization of service they may possibly receive Their rights during the process There are two types of ADSEP processing: Notification procedure Administrative Board procedure

Non-Punitive Letter of Caution (NPLOC)

Nonpunitive Letter of Caution (NPLOC) is typical method of nonpunitive censure NPLOC is personal matter between servicemember and the superior *Issuance of NPLOC cannot be mentioned in FITREP/Evals* The conduct behind the NPLOC can be mentioned in FITREP/Evals - Scared Straight kind of issue

Investigating Officer

Normally one person from the command (uninvolved in the subject of the investigation), although there can be an investigative team Do we want to assign the new check-in as the IO? Why? Why not? Can be senior enlisted or civilian, although normally an officer Seniority principle coupled with experience Absolutely should not be a potential witness or victim of incident

Liberty Risk

Only applies in Foreign Countries Limits liberty of Sailors in order to preserve relations with the host country Least restrictive means (typically tiers of liberty risk) Must be reviewed frequently (typically every 2 weeks) Only the CO can put servicemembers on liberty risk

CI Report Format

Opening block (list of enclosures) The first enclosure is the appointing order Preliminary statement (details on next slide) Findings of fact Opinions Recommendations

Litigation Report Characteristics

Opinions and recommendations will be included only if directed by supervising judge advocate - RARE Report must be marked, "For Official Use Only. Litigation/Attorney Work Product." Statements: Unsigned summary only by investigating officer - except when JAG believes signed statements of witnesses would benefit U.S. - again, rare No audio or video recorded statements

Privileges v. Rights

PRIVILEGE: A benefit, advantage, or favor provided for the convenience or enjoyment of an individual. Authority to withhold rests with authority that granted it Ex: Access to base recreation facilities Navy Exchange / Commissary use Driving on base or on-base parking Special liberty Access to base or ship libraries RIGHT: Legal compensation or required for duty *CANNOT* be withheld as a non-punitive measure Ex: Regular Pay BAH and BAS Medical/Dental Care Audience with the CO Access to your Congressman Regular Liberty

Handling Dissident & Protest Activities Among Members of the Armed Forces (DoD Instruction 1325.06)

Preserve member's right to expression to maximum extent possible consistent with good order & discipline & national security. Proper balancing of these interests depends on calm and prudent judgment of Commander.

Litigation Report Overview

Primary purpose is to gather facts and evidence to protect the legal interests of the U.S./DoN Conducted in nearly the same fashion as command investigations _ Convened only after consultation with a judge advocate and OJAG Code 15 (Claims/tort litigation) - They exist to assist you - Conducted under the direction and supervision of a judge advocate - as directed in the appointing order - The convening order must name the judge advocate

NJP Punishments

Reprimand or admonition (oral or written) Restriction Extra duties Reduction in rank Forfeiture of pay * Arrest in quarters (comm. & warrant officers) ** Suspended Punishment

NPM Remedies

Request Mast Complaint: Article 138, UCMJ Complaint: Article 1150, Navy Congressional Inquiry IG/Hotline Complaint

FOIA Fees

Requesters should submit a fee declaration appropriate for the below, if fees are expected to exceed the minimum fee threshold of $15.00. - Commercial. Requesters should indicate a willingness to pay all search, review and duplication costs. - Educational, Noncommercial Scientific Institution, News Media. Requesters should indicate a willingness to pay duplication charges in excess of 100 pages if more than 100 pages of records are desired. - All Others. Requesters should indicate a willingness to pay assessable search and duplication costs if more than 2 hours of search effort or 100 pages of records are desired. If the above conditions are not met, then the request need not be processed and notify the requester.

Line of Duty Determination

Required when: - Injury or disease may result in permanent disability - Injury or disease result in member physically unable to perform duties for a period exceeding 24 hours - Death of a service member

Blogs and Social Media

SMs are personally responsible for all content they publish . Must ensure that content is accurate and appropriate. Must be acutely aware that they lose control over content they post. Must use their best judgment at all times and keep in mind how the content of their posts will reflect upon themselves, their unit, and the Armed Forces. May identify themselves as SMs, to include their rank, military component, and status. When expressing personal opinions, should make clear that they are speaking for themselves and not on behalf of the DoD. Use a disclaimer.

Step 8: Final Review of Redacted Records

Second review will need to take place Simultaneously... Final response letter Staff Action Processing Form (SAP). Route through appropriate channels Once the IDA has signed the release letter, release documents to requestor via FOIAonline, or if applicable, PAO. Complete appropriate entries in FOIAonline and office tracker.

Types of NJP Modifications

Set Aside - like it never happened (clear injustice) can only set aside NJP results up to four months after imposition or provide a sound justification for delay (See MILPERSMAN 5812-010) Remission - Cancel unexecuted portion of the punishment Mitigation - Lessen amount or type of punishment Suspension - Maximum of 6 months or until end of current enlistment

Mandatory Bases for Separation Processing

Sexual misconduct Sexual harassment (certain circumstances) Violent misconduct which resulted in, or had potential to result in, death or serious bodily injury Possession of drug paraphernalia Drug abuse Unlawful use of designer drug/OTC drugs/prescription drugs Supremacist or extremist conduct FAP failure Alcohol Rehabilitation failure Second substantiated DUI PFT/CFT Failure- Navy suspends PFA failure ADSEP Nonconsensual distribution or broadcasting of an intimate image

Steps Prior to NJP

Some kind of investigation Disciplinary Review Board (DRB) USN only Executive Officer's Inquiry (XOI) USN only DRB & XOI are not required before NJP, but cannot be refused by Sailor. DRBs and XOIs cannot make guilty findings, but XO can dismiss the case.

Step 7: Reviewing responsive records

Sort records by originator and make necessary referrals Classified documents properly and currently classified Is there a need to consult with another agency? Begin Redactions (Adobe pro is a must)

Line of Duty Determination Assessment

Starts off with the presumption that the injury occurred in the line of duty and not due to the his/her own misconduct Need "clear and convincing" evidence to change or overcome that presumption -Cannot overstate the importance of understanding and implementing this presumption and standard.

Constraints on Imposing NJP

Statute of limitations 2 years from actual date of offense to imposition of NJP (not the date the command learned of offense). Waivable by MBR. Double punishment prohibited Cannot go to another NJP and receive punishment twice for same offense Multiple NJPs to stretch out punishment prohibited All known offenses appropriate for NJP must be adjudicated in one NJP

Prohibited Associations

Supremacist / extremist, hate groups, and criminal gangs "Active participation:" includes demonstrating, rallying, fundraising, recruiting, training, organizing, or leading. Not affiliation Other organizations inconsistent with service in armed forces = "catch all"

FOIA Timelines

The FOIA permits agencies to toll the twenty-day time period (i.e., stop the clock) under two circumstances: (1) one time to obtain information from the requester; and (2) as "necessary" to clarify fee-related issues with the requester. The one-time tolling permitted to seek information is limited to situations where the agency is awaiting information that it has "reasonably requested" from the requester. While an agency may only toll once while seeking information from the requester, as a matter of sound administrative practice, an agency is not prohibited from contacting a requester as many times as needed to facilitate processing the request.

Request Mast

The Right to personally speak to the Commanding Officer A Commanding Officer must address the specific grievance There can (and should) be restrictions on this meeting - e.g. date/time of meeting, length of meeting, witnesses in the room, etc.

ADSEP - Notification Procedure

The least favorable characterization of service possible is General (Under Honorable Conditions). No right to elect an administrative board unless 6+ years of total service and/or reserve military service.

ADSEP - Administrative Board Procedure

The least favorable characterization of service possible is Other Than Honorable (OTH) An OTH eliminates most post-active duty benefits, therefore more due process is afforded Servicemembers with 6 or more years of service have the right to elect an administrative board. If the gov't is seeking an OTH, administrative board procedure must be used.

NJP Review Authority Action

The review authority is merely looking to see if the CO who imposed NJP abused his/her discretion or violated a punishment restriction. May make any inquiry and/or examine additional evidence Cannot make guilty findings, change charges, or increase punishment CO (original or succeeding) may modify down the NJP

Limitiations of Rules of Evidence

There are some limited rules of evidence that will apply. Privileges are going to be in place as is relevance. Just because there are no rules does not mean anything goes. Relevance is always in play, and that can be plied a number of different ways. Moreover, the senior member is doubling as judge. You can convince them to follow the legal guidelines in a way that favors you.

Accused's Rights at NJP

To be present Remain silent - Art 31(b) rights Personal representative (not counsel) Examine evidence Present evidence, including witnesses Present extenuation and mitigating evidence Public hearing (CO can't close NJP over objection of accused, but accused can't waive the right and make it private if CO wants an All Hands NJP. Exception for security concerns)

Command Investigations - Deadlines

Usually 30 days from date of order; or Death cases, 20 days from death or discovery - Required unless extension granted As necessary, the CA may grant extensions of a reasonable amount of time as the CA deems appropriate. Requests and authorizations for extensions need not be in writing but must be memorialized in the preliminary statement and/or endorsement, as applicable.

Misconduct Must be Proximate Cause

Violations of law/regulations/intoxication alone are not necessarily misconduct. It is more than just inappropriate behavior. BAC > .10 = mental or physical faculties are impaired, but misconduct not necessarily presumed .10 is military standard but the local limit may apply if lower The intoxication must be the proximate cause of the injury

Freedom of Religion

Wearing visible religious apparel allowed, but: Request permission to CO first* At each new command Does not interfere with proper wearing of the uniform Religious importance to requestor Cumulative impact of repeated accommodations of a similar nature

Free Press

When can a CO limit publication or distribution of unofficial periodicals on a military installation? Can require prior approval Must be viewpoint neutral (Rep vs Dem) Can't prohibit sale of specific article of an otherwise authorized publication Ex: 1 particular issue of TIME magazine Porn? 10 USCS § 2495b & DODI 4105.70 Display & distribution can be controlled

Step 5: Acknowledging the FOIA request

When your office received the request Tracking number assigned Restate what records they have requested What track the request has been placed Final action on fee waiver or expedited processing Appeal options Point of contact to include number and email

Priest

accused distributed extremist newspaper on base - advocated overthrow of the govt and advised SNM's how to desert CONVICTION UPHELD

Convening Authority (CA)

commander initiating investigation Normally CO of the unit involved in the incident

Initial Denial Authorities

decide to withhold information in whole or in part based on one or more of the 9 exemptions deny a fee category claim or fee waiver deny an expedited processing request review a fee estimate confirm that no records were located in response to a request deny an improper request release the redacted/modified records to the requester

Wilson

guard detail blew his nose into flag - dereliction of duty because it was his duty to protect flag. No content-based restriction. CONVICTION UPHELD

Wilcox

sends racist comments to seemingly like-minded civilian individuals (and clearly says he's in the Army). Court found there was no "direct and palpable connection between speech and the military mission or military environment" for Article 134 CONVICTION OVERTURNED BY CAAF