Your Military Defender Blog


September 2019
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Some interesting observations from David Householder’s mystery , FIRST, KILL THE LAWYERS.

Lawyers: ”When you become an attorney, you’re making a commitment to the values found in the Bill of Rights, the process  the government must go through before it can punish any one of us – the right to counsel, privilege against self-incrimination, the right to confront witnesses and to call witnesses. These are values that protect the dignity and freedom of the individual.  As a lawyer, you serve the public.  You act as an officer of the court by upholding those values all of your resources.  It’s the only way that we can maintain a free society.”

“Average people have become so accustomed to any number of personal inquiries on Facebook or Twitter or God knows what else that we are nearly incapable of telling people to mind their own damn business.”

Reasonable doubt?  “If a woman perceives that she was powerless to stop a sexual encounter, then she may develop symptoms that mirror those exhibited by women were actually raped, such as feelings of betrayal, fear, embarrassment, guilt, depression, and even symptoms of PTSD.  Defense lawyers often argue that she might mistakenly believe she was raped, even though the sexual encounter was consensual.”

LIBERALS AND STATES RIGHTS.  A recent Washington Post Outlook relates how liberals have changed their position on delegating more power to the states.  In the Trump era, this appears to be the best way forward for progressives – given a recalcitrant Congress.  The author – law  professor Ilya Somin — cites how this approach works with so-called sanctuary cities; they act “despite” Federal guidance to the contrary.   Important to the modern trend was Murphy v NCAA .  In that case, the Supreme Court struck down part of Federal law prohibiting states from authorizing sports betting.

CIVIL WAR, WOMEN, AND RULES OF ARMED CONFLICT.   Author Stephanie Belknap relates how the US Civil War forged new innovations regarding law of war.  In the US Civil War, Southern civilian women actively participated to a degree seldom seen before .  Union leaders had with no systematic legal guidelines governing the treatment of such noncombatants, but Union generals implemented to the so-called Lieber Code.   It eliminated the concept that women were always innocent; and implemented a loyalty test – all citizens, male or female, were entitled to protection if they rejected treason and remained neutral.

RULES FROM BILL GATES?  Going around on the Internet, his purported rules of the road.

  • Life is not fair – get used to it.
  • The world does not care about your self-esteem. The world will expect you to accomplish something before you ‘feel good about yourself’.
  • If you think your teacher is tough, wait until you get a boss.
  • Your school may have done away with testing, but life does not “everybody gets a free pass.”

WHAT’S GOING ON IN NAVY JAG?  Navy Times reports that Secretary of the Navy Richard V. Spencer has ordered a comprehensive review into the JAG Corps of the Marine Corps and Navy.

A Marine Corps veteran, Spencer ordered both the Chief of Naval Operations and the Marine commandant to put the reports on his desk within 90 days.

Spencer’s memorandum ordered the Navy and Marines to study the laws, regulations, policies, resourcing   then offer  “any corrective actions necessary” to revamp a host of topics – legal community training and professional development; organization and command relationships and oversight; staffing levels; and career progression of sea service attorneys.

Some believe this review is tied to the dismissal of a SEAL officer charged with covering up war crimes.

 Others point to court-martial sanctions of  a prosecution team for  violating the rights of accused military members – allegedly by improper warrantless surveillance, manipulation of witness statements, and unfair use of immunity grants.

Still others point to what they insist are violations  of Due Process at Guantanamo.

CHINA TRADE WAR?  A recent news story in the Washington DC area notes that the leases are up on two giant pandas lent to the Washington DC zoo by the Chinese government.  Will trade war force the pandas to return to China?


ON SOCIAL MEDIA SPEECH INCITING VIOLENCE.  Can speech on a social media site incite violence?   Danielle Allen, a political theorist at Harvard, lists three criteria:

  • The speaker must directly advocate a crime; denigrating someone is insufficient.
  • The crime being incited must be imminent – more or less “now.”
  • It must be probable the crime will be committed soon.

TRAINING FOR JUDGES?   Bruce Cannon Gibney points out that judges are required to attend less training than manicurists, who need 400 hours of experience before they can be licensed in California.

WHITE COLLAR CRIME. The new Champion magazine contains interesting articles on white-collar crime including:

  • Challenging facial recognition
  • The law on body-worn cameras
  • Effective defense in cases involving decryption devices

CONGRATULATIONS, EF!    We recently received good news that our Coast Guard client EF received a disability rating of 100%.

MANY THANKS.  Client RB, whose native language is Spanish, complemented our rebuttal of his correction board packet, saying, Your letter is very powerful and smartly short and concentrated targeting strategic points…

GETTING AROUND TO THINGS….  Some articles from the Army Lawyer:

Emoluments clause and the DOD – June 2013

Jurisdiction over Reservists – August 2013

AWOL and fugitive entitlement –February 2015

The Writs process – February 2015

TMcK has a great sense of humor.  He offers

*    respect your elders.  They graduated from school without the internet.

*   Ive decided I am not old………………I am 25 — plus shipping and handling.

*    behind every angry woman stands a man who has absolutely no idea what he did wrong.

*    vegetarian:  ancient tribal name for the village idiot who can’t hunt, fish, or light fires!

*    my decision-making skills closely resemble those of a squirrel when crossing the road.

*    some things are just better left unsaid and I usually realize it right after I say them.

*    camping: where you spend a small fortune to live like a homeless person.

GREAT PEB MATERIALS.   Hats off to the Coast Guard for excellent handouts for personnel going through the PEB process.  

ETHICS CORNER.  Ethical?  Consider the alleged sexist conduct of world-famous tenor Placido Domingo.  Do you still attend his concerts or buy his CDs.  Presumably, he will get royalties based on your payment.

A similar question can be asked about purchasing the World War II recordings of the Berlin Philharmonic.   For many, their recordings of Beethoven or Wagner are breathtaking.  Yet they were created by the premier “Nazi” orchestra, which failed to protect its Jewish members.


Manker v. Spencer was recently filed in the Federal District Court for Connecticut.  It contains valuable information on those seeking an upgrade due to post-traumatic stress.

Main points:

News Update

On September 3, 2014, then-Secretary of Defense Chuck Hagel directed correction boards to give “special consideration” to PTSD diagnoses by the VA and “liberal consideration” to diagnoses of PTSD by civilian providers when adjudicating discharge upgrade applications submitted by veterans. 

Secretary Hagel issued a 3 September, 2014 memo.  In it, he directed military review boards to consider PTSD and “PTSD-related conditions” as “potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.”  

In 2016 Congress codified parts of the Hagel Memo.  Discharge Review Boards are now statutorily required to grant “liberal consideration “to the discharge upgrade applications of veterans with symptoms related to PTSD or traumatic brain injury (TBI).  10 U.S.C.  §1553(d)(3)(A)(ii).   Boards must now review each case “with liberal consideration to the former member” claiming PTSD.

On 25 August 25, 2017, commenting “that clarifications are needed regarding mental health conditions,” Acting Under Secretary of Defense for Personnel and Readiness Anthony M.  Kurta issued additional guidance.   He stressed that “[l]iberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions.”

“Bad Paper” – Historical Context

Since 2001, more than 2.7 million U.S.  military personnel—including approximately one million sailors and Marines—have served on active duty in Iraq and Afghanistan.  Over half have deployed more than once. 

In that time, approximately 15 % of all service members have left the military with less-than-honorable discharges.   By contrast, only 7 % of Vietnam-Era veterans and less than 2 % of World War II-Era veterans received less-than-honorable discharges. 

 Hundreds of thousands of veterans with “bad paper” are thus generally ineligible for numerous earned benefits  —  compensation for service-connected disabilities, special unemployment compensation programs, military burial, and benefits for surviving family members.

  • Veterans with a less-than-honorable discharge are categorically denied GI Bill education benefits and civil service retirement credits; they are generally denied veterans’ benefits provided by state and local governments.
  • Without these benefits, veterans are unable to access the health care they need, must pay out of pocket for educational and vocational training opportunities, and are left largely without the support vital to ensuring a successful transition back into civilian life.
  • Many employers reject applications from veterans with less-than-honorable discharges, even when those discharges are associated with only minor misconduct. 
  • Employers regularly learn of an applicant’s discharge status through a routine background check or by requesting the veteran to submit a discharge certificate, DD-214.
  • A derogatory narrative reason for separation, which appears with the discharge status on the veteran’s DD-214, can impose a similar or additional stigma.  For example, many less-than-honorably discharged veterans receive a damning reason for separation of “personality disorder “or “misconduct” without additional explanation.
  •  “Bad paper” carries a stigma that casts doubt on a veteran’s personal character and ability to perform as civilian.

Many veterans with “bad paper” were discharged due to misconduct attributable to undiagnosed PTSD, TBI, or other related mental health conditions triggered as a result of their military service and/or military sexual trauma.

Troubling Data on PTSD

PTSD is a psychiatric disorder that can result from experiencing, witnessing, or confronting a traumatic event.  Events that lead to PTSD are frequently life-threatening.   PTSD is the most prevalent mental disorder arising from combat experience, and it is also frequently developed after sexual assault.  Its symptoms include flashbacks or nightmares relating to the traumatic event, avoidance of anything associated with the trauma, and hypervigilance, which often manifests in difficulty concentrating and irritability.

According to the VA, 11 % of Afghanistan veterans and 20 % of Iraq veterans suffer from PTSD.  Similarly, 10 % of Gulf War veterans and 31 % of all vets have PTSD.   Other researchers estimate that approximately 16 % of servicemembers experience such stress.  Victims with sexual assault histories are four times more likely to suffer from PTSD compared to other veterans.

Researchers have found that, among troops deployed to Iraq and Afghanistan, Marines with a diagnosis of PTSD were eleven times more likely to have a misconduct discharge compared to their peers who did not have a psychiatric diagnosis.

The GAO estimates that from 2011-2015, more than 57,000 servicemembers were separated from the military for misconduct despite a diagnosis of PTSD, TBI, or another mental health condition that could be associated with misconduct.  This amounts to 62 % of all servicemembers separated for misconduct during the same period.  See Government Accountability Office, DOD Health: Actions Needed to Ensure Post-Traumatic Stress Disorder and Traumatic Brain Injury Are Considered in Misconduct Separations, GAO-17-260 (May 2017) (“GAO Report”), available at

Rates of Relief

According to records released by the DOD in a Freedom of Information Act lawsuit, since January 2016, the BCNR granted discharge upgrades in just 15% of cases in which PTSD was alleged to have been a contributing factor.

By contrast, in the same period and subject to the same legal regime, the Army granted discharge upgrades in 45% of such cases, and the Air Force granted discharge upgrades in 37 %.

A GREAT WORLD WAR II READ.   As reported by skilled author

James Benn –

  • About 40% of all crimes in the Army in 1944-19 45 were related to the theft of materiel. 
  • Some got rich on the black market in England.  The rate for a single can of coffee in 1944 was $10 — equal to $140 in 2014 dollars.  A crate holding 50 cartons of cigarettes went for $1000, equivalent to $13,500 in today’s dollars.
  • About 39 British female agents were sent into occupied France.   Some 14 were executed.
  • Hitler issued an infamous Death Order – Allied commandos faced execution if captured.   Approximately 80 died as a result of this directive.

GOLDEN OLDIES.   My mother knew very little about the military.   So when I became an Air Force judge advocate, I would explain things to her, including the different forms of discharge from the service.

My mom was a quick learner– sort of.   When visiting me at an installation in Texas, she came upon a row of pictures showing the chain of command.  Typically, it began with the Secretary of Defense [”the Honorable Donald. Rumsfeld”] then went through civilian senior leadership, ending with military commanders…

“It’s pretty clear how these discharges work,” my mom commented.  “Look at these civilians.   They have honorable discharges…but the men in military uniforms have poor records – each has the name general under his picture!”



Positive thoughts:

  • A pleasure to watch the wonderful James Cagney movie YANKEE DOODLE DANDY.  Lots of wonderful  pro-American sentiment.
  • … and a moving picture in the Washington Post of immigrants from around the world becoming American citizens just before Independence Day.

But there are negative thoughts as well.

  • My Jewish racquetball buddies tell me that at their local synagogue, the Rabbi begins each service by reminding people where the exits are – just in case of trouble.  My buddies advise that there is a retired policeman/armed guard on duty at their Temple 24 hours a day.
  • The church where I play the organ likes “Gathering Music” each Sunday before the prelude.  For the Sunday before Independence Day, I selected the wonderful old Fred Waring arrangement of the famous Emma Lazarus poem – with the words “give me your tired, your poor….”.  I wondered if anyone in the congregation would protest any positive mention of “huddled masses” or “wretched refuse.”  Thankfully, no such protest at my wonderful church.

For what it’s worth, here is the entire Lazarus poem –



A lot of bad information about VA benefits exists.  So says the Swords to Plowshares website.   

We agree.

Those benefits are often very important – the include healthcare, education, housing, vocational rehabilitation, and even burial.

There is a little-known loophole – relief for GIs separated with “bad paper.” Cases typically involve veterans having more than one period of active military service.

If so:

  • A “bad” discharge does not necessarily bar an individual from receiving benefits.
  • The loophole – a separate period of service terminated under honorable conditions.

This happened to one of our clients recently.  She enlisted in the Air Force, served honorably, then completed her initial enlistment with an honorable discharge.  During her second enlistment, there were two uses of marijuana. This led to a discharge in lieu of court-martial and an undesirable-type discharge.

Our client was not necessarily out of luck.  As noted, VA benefits are possible based on the first tour and honorable discharge; this holds true even if the second enlistment‘s bad paper would normally deny benefits.

To say it another way: Suppose the claimant has two or more periods of service.  , He/she has “good paper” for the first period of service and “bad paper” for the second.  The individual may be eligible for compensation and health care for any disabilities that occurred or were aggravated during the “good” period of service.  

The situation can be complicated.    If applicants were injured during the “bad” period of service, they are out of luck unless the VA issues a good character of service determination.  An easy-read VA website clarifies that “you earned your benefits during the period in which you served honorably.”   

Based on this, the VA makes a case-by-case determination in “bad paper” cases, reviewing:

  • The entire military record.
  • Mitigating/extenuating circumstances.
  • Supporting evidence provided by third-parties
  • Length of service.
  • Performance.
  • The nature of the infraction.
  • Character of the service prior to the offense[s]

Overall, the VA typically denies Federal benefits to those sentenced by a general court-martial, deserters, or those guilty of a lengthy AWOL.

PTSD?    The VA does not close the door completely.  According to their website, the VA will take into consideration the impact of disabilities on the claimant’s misconduct in making a determination. The reader-friendly summary appears at the VA website.  Go to

Veterans Benefits Administration

PTSD Triggered by a Dead Body, Other Catastrophes

One of the mainstays of popular “haunted houses” is make-believe dead bodies.  Haunted houses use such fake cadavers to scare patrons, relying on strong reactions when humans confront corpses. 

The trauma can be profound after a person finds a dead body in real life.

This traumatic response is magnified if an individual discovers a human body undergoing decomposition.    

War zone experiences can trigger horrific post-traumatic stress; however, experiences in garrison can also lead to such trauma.  We recently completed a lengthy brief for an Air Force client – a medical technician whose PTSD was triggered by encountering dead bodies during his assigned duties. 

During the 1990s, the Center for Research on End of Life Care at Cornell Medical College discovered that many individuals acquired what is now known as traumatic grief.

Traumatic grief involves what are classified as intrusive symptoms. These symptoms leave a person to deeply fear that the event will recur in the future.  Disturbing symptoms include:

  • Nightmares
  • Hyper-vigilance
  • Startle reactions
  • Feelings of helplessness
  • Feelings of insecurity

Coming across a dead body is not the only PTSD trigger. Situations that cause PTSD can include:

  • Combat
  • Kidnapping
  • Natural disaster
  • Catastrophic accident
  • Violent sexual assault
  • Violent physical assault
  • Witnessing a person violently killed or injured

Certain risk factors render a person more apt to suffer PTSD following the discovery of human remains. These include:

  • Previous trauma
  • Preexisting mental health condition
  • Lack of post-trauma support
  • The severity of the traumatic event itself.

We have gathered useful materials on encountering dead bodies – including comments from a national mortician association recognizing such dangers for funeral home staff.

We are available to discuss this aspect of PTSD with potential clients!


      Recently, client Cadet CF was disenrolled from the Army
ROTC program, owing almost $175K.  He had developed a
disqualifying medical condition.  Because he no longer
meets medical qualification standards, CF is ineligible for a
commission or enlistment. A formal hearing and his case
was held several months ago, where we advocated on his
The good news just arrived –the entire amount of his ROTC
scholarship – $174, 440 – is being waived. Thanking us, CF
writes: Mission success!!  I just wanted to say thank you for
your hard work and guidance. I’m really grateful for your
help. Warmly.” …..

LAWYER’S CORNER.  Every once in a while, we run in to an
attorney who likes to quote Scripture against our client.  In such cases, the following ten items might be helpful…and

perhaps even a bit amusing.

. No one whose testicles are crushed or whose male organ is cut off shall enter the assembly of the Lord. (Deuteronomy 23:1 RSV)

2. If two men, a man and his countryman, are struggling together, and the wife of one comes near to deliver her husband from the hand of the one who is striking him, and puts out her hand and seizes his genitals, then you shall cut off her hand; you shall not show pity. (Deuteronomy 25:11-12 NASB)

3. Anyone arrogant enough to reject the verdict of the judge or of the priest who represents the LORD your God must be put to death.  Such evil must be purged from Israel. (Deuteronomy 17:12 NLT)

. As you approach a town to attack it, first offer its people terms for peace. If they accept your terms and open the gates to you, then all the people inside will serve you in forced labor. But if they refuse to make peace and prepare to fight, you must attack the town. When the LORD your God hands it over to you, kill every man in the town. But you may keep for yourselves all the women, children, livestock, and other plunder. You may enjoy the spoils of your enemies that the LORD your God has given you. (Deuteronomy 22:28-29 NLT)

5.  If a man is caught in the act of raping a young woman who is not engaged, he must pay fifty pieces of silver to her father. Then he must marry the young woman because he violated her, and he will never be allowed to divorce her.  Deuteronomy 22:28-29 NLT)

6. Make ready to slaughter his sons for the guilt of their fathers; Lest they rise and possess the earth, and fill the breadth of the world with tyrants. (Isaiah 14:21 NAB)

7.. Anyone who is captured will be run through with a sword. Their little children will be dashed to death right before their eyes. Their homes will be sacked and their wives raped by the attacking hordes. For I will stir up the Medes against Babylon, and no amount of silver or gold will buy them off. The attacking armies will shoot down the young people with arrows. They will have no mercy on helpless babies and will show no compassion for the children. (Isaiah 13:15-18 NLT)

8. However, you may purchase male or female slaves from among the foreigners who live among you. You may also purchase the children of such resident foreigners, including those who have been born in your land. You may treat them as your property, passing them on to your children as a permanent inheritance. You may treat your slaves like this, but the people of Israel, your relatives, must never be treated this way. (Leviticus 25:44-46 NLT)

9. When a man strikes his male or female slave with a rod so hard that the slave dies under his hand, he shall be punished. If, however, the slave survives for a day or two, he is not to be punished, since the slave is his own property. (Exodus 21:20-21 NAB)

10. Slaves, obey your earthly masters with deep respect and fear. Serve them sincerely as you would serve Christ. (Ephesians 6:5 NLT)