THE MILITARY COMMANDER
AND
THE LAW
______
Sixth Edition 2002
______
Colonel Thomas L. Strand, USAF
Commandant, Air Force Judge Advocate General School
Lieutenant Colonel Walter S. King
Editor, The Military Commander and the Law
Captain Bradley L. Knox
Co-Editor, The Military Commander and the Law
EDITORIAL BOARD
Lieutenant Colonel Kenneth J. David, USAF
Lieutenant Colonel Jody A. Evans, USAF
Lieutenant Colonel Polly S. Kenny, USAF
Lieutenant Colonel Robert M. Mitchell, USAF
Major Calvin N. Anderson, USAF
Major Renee T. Bennett, USAF
Major Donnie W. Bethel, USAF
Major Todi S. Carnes, USAF
Major David S. Castro, USAF
Major Douglas P. Cordova, USAF
Major Juan-Carlos Guerrero, USAF
Major Thomas J. Herthel, USAF
Major Joseph A. Keeler, USA
Major Eric F. Mejia, USAF
Capt Bruce A. Barnard, USAF
Capt Tracey Y. Madsen, USAF
and
Mr. W. Darrell Phillips
9
PREFACE
Today’s Air Force commanders face a wide range of issues, many of which involve complex statutes, laws, regulations, and rules. Our commanders must deal with challenging legal matters ranging from military justice to environmental law to operations law. To assist commanders with these formidable tasks, we’ve created this helpful volume, The Military Commander and the Law.
This deskbook contains a series of papers that give commanders a head start on the wide array of issues they will handle. Each article is intended to give a commander the basics in the law on any given subject. The papers are not intended to make the commander a legal expert or to resolve specific questions relating to any unique problem. After reviewing the materials in this deskbook, commanders should always contact their Staff Judge Advocate for personal assistance with specific issues.
I encourage all commanders to use this outstanding guide. I am certain that as you become familiar with its contents, The Military Commander and the Law will become one of your most useful resources.
DONALD A. LAMONTAGNE
Lieutenant General, USAF
Commander, Air University
9
TABLE OF CONTENTS
Introduction 1
FUNCTIONS OF THE STAFF JUDGE ADVOCATE 2
Chapter 1 – CRIMINAL INVESTIGATIONS 7
A COMMANDER’S GUIDE TO THE AFOSI 8
ADVISING SUSPECTS OF RIGHTS 15
ADVISEMENT FOR MILITARY SUSPECTS 18
ADVISEMENT FOR CIVILIAN SUSPECT 18
THE AIR FORCE URINALYSIS PROGRAM 19
AREA DEFENSE COUNSEL 26
INSPECTIONS AND SEARCHES 27
PRELIMINARY INQUIRY INTO REPORTED OFFENSES 34
PRETRIAL CONFINEMENT 35
PRETRIAL RESTRAINT 39
STEROIDS 41
UNAUTHORIZED ABSENCE 42
Chapter 2 – COURT-MARTIAL ISSUES AND PROCEDURES 45
COURT-MARTIAL JURISDICTION UNDER THE UCMJ 46
UCMJ JURISDICTION OVER RESERVISTS 49
IMMUNITY 51
PREPARATION, PREFERRAL, AND PROCESSING OF CHARGES 53
PRETRIAL AGREEMENTS 55
SERVING AS A COURT MEMBER 57
SPECIAL COURT-MARTIAL CONVENING AUTHORITY DUTIES 60
TESTIFYING AS A WITNESS 62
TRIAL FORMAT 64
POST TRIAL MATTERS, CONVENING AUTHORITY ACTION, AND APPEALS 66
Chapter 3 – MILITARY JUSTICE ISSUES FOR COMMANDERS 69
MEDIA RELATIONS IN MILITARY JUSTICE MATTERS 70
COMMAND SUCCESSION 75
FRATERNIZATION AND UNPROFESSIONAL RELATIONSHIPS 78
COMMAND AND SUPERVISORY RESPONSIBILITIES 79
MILITARY JUSTICE ACTIONS AND THE INSPECTOR GENERAL 80
MILITARY MAGISTRATE PROGRAM 82
NATIONAL SECURITY CASES 83
EVIDENCE AT COURT-MARTIAL 86
AIR FORCE VICTIM AND WITNESS ASSISTANCE PROGRAM 87
THE RIGHT TO FINANCIAL PRIVACY ACT 89
UNLAWFUL COMMAND INFLUENCE 91
Chapter 4 – NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, UCMJ 93
NONJUDICIAL PUNISHMENT OVERVIEW AND PROCEDURES 94
Supplementary NONJUDICIAL PUNISHMENT ACTIONS 100
VACATING SUSPENDED NONJUDICIAL PUNISHMENT 102
QUALITY FORCE MANAGEMENT EFFECTS OF NONJUDICIAL PUNISHMENT 104
REMOTIVATION PROGRAM 106
Chapter 5 – QUALITY FORCE MANAGEMENT 109
ADMINISTRATIVE COUNSELINGS, ADMONITIONS, AND REPRIMANDS 110
ADMINISTERING RICs, LOCs, LOAs, and LORs 111
UNFAVORABLE INFORMATION FILES 112
CONTROL ROSTERS 115
ADMINISTRATIVE DEMOTIONS 117
THE AIR FORCE FITNESS PROGRAM 120
OFFICER AND ENLISTED PERFORMANCE REPORTS 122
OFFICER PROMOTION PROPRIETY ACTIONS 125
ENLISTED PROMOTION ACTIONS 127
RESERVE OFFICER PROMOTION PROPRIETY ACTIONS 130
WEIGHT AND BODY FAT MANAGEMENT PROGRAM (WBFMP) 132
SELECTIVE REENLISTMENT 135
Chapter 6 – ADMINISTRATIVE SEPARATION FROM THE AIR FORCE 137
PRIOR TO EXPIRATION OF TERM OF SERVICE 138
INVOLUNTARY SEPARATION OF AIRMEN: GENERAL CONSIDERATIONS 140
INVOLUNTARY SEPARATION OF AIRMEN: TYPES OF ACTIONS 143
INVOLUNTARY SEPARATION OF AIRMEN: pROBATION AND REHABILITATION 148
INVOLUNTARY SEPARATION OF AIRMEN: PROCEDURES 152
OFFICER SEPARATIONS 154
ADMINISTRATIVE SEPARATION OF RESERVISTS 159
LOSS OF VETERANS’ BENEFITS 162
Chapter 7 – PERSONNEL ISSUES FOR THE COMMANDER 165
ADOPTION REIMBURSEMENT 166
ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) 168
ALCOHOL ABUSE 172
ANTHRAX IMMUNIZATIONS 180
ARREST BY CIVIL AUTHORITIES 183
ARTICLE 138 COMPLAINTS 186
BAD CHECKS 188
CHILD ABUSE AND NEGLECT AND SPOUSAL ABUSE 189
COMMANDER DIRECTED MENTAL HEALTH EVALUATIONS 192
CONSCIENTIOUS OBJECTION TO MILITARY SERVICE 195
DRUG ABUSE 198
EQUAL OPPORTUNITY AND TREATMENT 204
FINANCIAL RESPONSIBILITY 210
HATE GROUPS 213
HAZING 214
HOMOSEXUAL CONDUCT 216
HUMANITARIAN REASSIGNMENTS / DEFERMENTS 223
JURY SERVICE 225
LIMITED PRIVILEGE FOR SUICIDE PREVENTION 227
LINE OF DUTY DETERMINATIONS 230
OFFICER GRADE DETERMINATIONS 234
PATERNITY CLAIMS 236
PERSONNEL RELIABILITY PROGRAM 237
POLITICAL ACTIVITIES BY AIR FORCE MEMBERS 240
RELIGIOUS ACCOMMODATION 243
ALLEGATIONS AGAINST SENIOR OFFICIALS AND 245
FAMILY MEMBERS FROM OVERSEAS FOR TRIAL 247
SEXUAL HARASSMENT 250
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT 258
SUMMARY COURT OFFICERS 260
TATTOOS AND BODY PIERCING 262
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT 265
Chapter 8 – ETHICS ISSUES 269
STANDARDS OF ETHICAL CONDUCT 270
FINANCIAL DISCLOSURE FORMS 272
FOREIGN GIFTS 274
FREQUENT FLYER PROGRAMS 276
GIFTS TO SUPERIORS 278
HONORARIA 280
HONORARY MEMBERSHIPS 281
OFFDUTY EMPLOYMENT 282
PROCUREMENT INTEGRITY 283
USE OF GOVERNMENT COMMUNICATIONS SYSTEMS 285
USE OF GOVERNMENT RESOURCES FOR MEMENTOS AND GIFTS 288
Chapter 9 – INSTALLATION ISSUES 291
ARMY AND AIR FORCE EXCHANGE SERVICE AND COMMISSARY BENEFITS 292
BANKRUPTCY: GOVERNMENT CONTRACTORS 295
BASE CLOSURES 297
CHILD DEVELOPMENT PROGRAMS 299
COMMERCIAL ACTIVITIES 301
DEBARMENT 306
DISPOSAL OF PERSONAL PROPERTY 308
DRIVING PRIVILEGES 309
FAMILY MEMBER MISCONDUCT 312
FEDERAL MAGISTRATE PROGRAM 314
FREE SPEECH, DEMONSTRATIONS AND OPEN HOUSES 316
INSTALLATION JURISDICTION 319
MEDIA RELATIONS DURING AIRCRAFT ACCIDENTS 321
MINOR MILITARY CONSTRUCTION 324
MWR AND NONAPPROPRIATED FUND INSTRUMENTALITIES 326
NATIONAL DEFENSE AREAS 327
OFF-LIMITS ESTABLISHMENTS 331
OUTSOURCING AND PRIVATIZATION 333
POSSE COMITATUS 335
PRIVATE ORGANIZATIONS 338
REMOVAL FROM BASE HOUSING 340
SMOKING IN AIR FORCE FACILITIES 341
SPOUSES' CLUBS 343
UNOFFICIAL ACTIVITIES / SQUADRON SNACK BARS 346
UTILITY CONTRACTING AT BASE LEVEL 348
VOLUNTEER SERVICES 351
Chapter 10 – CIVIL LAW ISSUES FOR THE COMMANDER 353
BANKRUPTCY: PERSONAL 354
CONFIDENTIALITY AND PRIVILEGED COMMUNICATION 355
FREEDOM OF INFORMATION ACT 359
PERSONAL LIABILITY OF COMMANDERS AND SUPERVISORS 363
THE PRIVACY ACT 366
REPORTS OF SURVEY 370
RESERVE FORCES 377
AIR FORCE SAFETY AND ACCIDENT INVESTIGATIONS 380
SOURCES OF COMMAND AUTHORITY 384
UNAUTHORIZED PROCUREMENT 387
ADMINISTRATIVE INQUIRIES AND INVESTIGATIONS 390
FLYING EVALUATION BOARDS 393
Chapter 11 – THE AIR FORCE LEGAL ASSISTANCE PROGRAM 397
LEGAL ASSISTANCE PROGRAM 398
ETHICAL CONSIDERATIONS 399
NOTARIES 401
PREVENTIVE LAW PROGRAM 404
WILLS AND POWERS OF ATTORNEY 406
Chapter 12 – THE AIR FORCE CLAIMS PROGRAM 409
INTRODUCTION TO CLAIMS 410
PERSONAL PROPERTY CLAIMS 411
ARTICLE 139 CLAIMS 414
AVIATION CLAIMS 416
CARRIER RECOVERY CLAIMS 419
HOSPITAL RECOVERY CLAIMS 420
PROPERTY DAMAGE TORT CLAIMS IN FAVOR OF THE UNITED STATES 421
RENTAL VEHICLES 424
TORT CLAIMS 431
Chapter 13 – CIVILIAN PERSONNEL AND FEDERAL LABOR LAW 437
EEO COMPLAINT PROCESS 438
OVERVIEW OF FEDERAL LABORMANAGEMENT RELATIONS 442
BASE CLOSURE CIVILIAN PERSONNEL ISSUES 448
AIR FORCE CIVILIAN DRUG TESTING PROGRAM 451
CIVILIAN EMPLOYEE DISCIPLINE 456
CIVILIAN EMPLOYEE INTERROGATION 461
COLLECTIVE BARGAINING 464
FAMILY AND MEDICAL LEAVE ACT 467
UNACCEPTABLE PERFORMANCE BY CIVILIAN EMPLOYEES 470
UNEMPLOYMENT COMPENSATION 477
WHISTLEBLOWER PROTECTION ACT 480
WORKPLACE SEARCHES 483
Chapter 14 – ENVIRONMENTAL LAW 485
ENVIRONMENTAL LAWS: OVERVIEW 486
AIR FORCE FEE/TAX POLICY 487
CLEANUP OF CONTAMINATION FROM PAST ACTIVITIES 488
CONTROLS ON AIR FORCE DECISION-MAKING: NEPA 491
ECAMP 493
ENVIRONMENTAL LAW OVERSEAS 495
LIABILITY UNDER ENVIRONMENTAL LAWS 498
MEDIA RELATIONS AND ENVIRONMENTAL INCIDENTS 501
NATURAL AND CULTURAL RESOURCE PRESERVATION LAWS 503
SIKES ACT 504
MIGRATORY BIRD TREATY ACT (MBTA) 504
NATIONAL HISTORIC PRESERVATION ACT (NHPA) 504
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT 506
NOISE AND LAND USE 508
CLEAN AIR ACT 510
SOLID AND HAZARDOUS WASTES 513
CONTROL OF TOXIC SUBSTANCES 516
CLEAN WATER ACT/SAFE DRINKING WATER ACT 518
RESPONDING TO AN ENFORCEMENT ACTION 521
Chapter 15 – INTERNATIONAL AND OPERATIONS LAW 525
INTRODUCTION TO INTERNATIONAL & OPERATIONS LAW 526
FISCAL LAW DURING DEPLOYMENTS 531
FOREIGN CRIMINAL JURISDICTION 536
THE LAW OF ARMED CONFLICT 539
LEGAL ASPECTS OF INFORMATION OPERATIONS 545
OPERATIONS LAW 551
RULES OF ENGAGEMENT 552
INDEX 557
9
Introduction
FUNCTIONS OF THE STAFF JUDGE ADVOCATE
PRELIMINARY MATTERS
- Mission: The Judge Advocate General's Department provides essential legal support for
military operations; advocates and litigates to preserve command prerogatives; administers civil and criminal law programs; educates and counsels leaders and personnel in the law; and recruits, trains, and equips quality people.
- Definitions
-- Judge Advocate: An AF officer designated as such by The Judge Advocate General
--- Graduate of an accredited law school, a member in good standing of the legal bar of some state, and a graduate of the Judge Advocate Staff Officer Course
--- Approximately 1,340 active duty Air Force JAGs
-- Staff Judge Advocate: Senior judge advocate on extended active duty normally on the installation commander's staff unless otherwise specified by The Judge Advocate General
-- Assistant Staff Judge Advocates: Other judge advocates assigned to the staff judge advocate's office. May wear other hats, such as
--- Claims Officer
--- Chief of Military Justice
--- Chief of Civil Law, etc.
-- Area Defense Counsel (ADC): Judge advocate performing defense counsel duties (for additional information, see “Area Defense Counsel” article in chapter 1)
FUNCTIONAL ORGANIZATION OF THE BASE LEGAL OFFICE
- Military Justice Division: Commanders make decisions about discipline and impose punishment. SJAs provide advice on how best to achieve good order and discipline
-- “On-call” JAG available 24 hours a day
-- Assists commander in determining appropriate forum for disciplinary actions
-- Article 15 Actions (Nonjudicial Punishment [NJP]). SJAs advise on
--- Whether there is enough evidence for the action. (Offender may demand trial by courtmartial)
--- Who should offer the Article 15
--- What type of punishment fits the offense, the offender, and is consistent with base-wide and Air Force-wide discipline
--- Whether supplementary actions should be taken after an Article 15 is concluded
(vacation actions, suspensions, set asides, etc.)
-- CourtsMartial
--- Pretrial matters
---- Pretrial confinement propriety
---- Search and seizure questions
---- Response to media inquiries
---- Subpoena of witnesses
--- Prosecution at trial
--- Posttrial review
- Claims Office: Investigates, adjudicates, and processes claims
-- Claims against the United States
--- Personnel claims "incident to service" (household goods damage, paint overspray, etc.)
--- Third party (from outside the AF) claims
---- Resulting from AF operations
---- Resulting from personnel actions committed outside the scope of duties
--- Overseas
--- Article 139 claims (willful damage by military personnel)
--- Tort claims (slip & fall, motor vehicle, medical malpractice, etc.)
-- Claims asserted on behalf of the United States
--- Carrier Recovery Claims (against household goods carriers)
--- Hospital Recovery Claims (for cost of medical care to injured U.S. personnel)
--- Property Damage Tort Claims (for negligent damage to U.S. property)
- International and Operations Law Division
-- Foreign Criminal Jurisdiction
-- International Agreements
-- Law of Armed Conflict training and guidance
-- Operations law issues (rules of engagement, targeting, etc.)
- Civil Law Division
-- Administrative discharges
--- Advice to squadron commanders, convening authority, and separation authority
--- Obtains Legal Advisor and Recorder in board hearing cases
-- Legal Assistance
--- Consultation on personal, civil (noncriminal) legal matters
--- No court representation
--- Wills, notary public services, and powers of attorney provided
--- Active duty, retirees, and family members
--- Attorneyclient privilege exists
-- Preventive Law Program: Educating commanders, service members, and their family members on pertinent legal issues
-- Legal advice for other staff agencies
--- Contracting Squadron: Government procurement law, protests, disputes, etc.
--- Supply Squadron: Reports of survey
--- Mission Support Squadron: Line of duty determinations
--- Social Actions: Equal Opportunity Treatment investigations
--- AFOSI and Security Forces: Law enforcement investigations
--- Inspector General: Fraud, waste, and abuse inquiries and investigations
--- Civil Engineering Environmental Flight: Environmental issues and compliance
--- Comptroller Squadron: Fiscal law issues
--- Communications Squadron: Freedom of Information and Privacy Act issues
--- Civilian Personnel Office
---- Labor-management relations (collective bargaining agreements, unfair labor practices, grievances, etc.)
---- Adverse administrative actions against civilian employees
---- Equal employment opportunity complaints
--- Base Medical Facility
---- Quality assurance, risk management, and credentials programs
---- Legal/Medical issues: Informed consent, medical record release, training
affiliation agreements, etc
-- Corporate counsel for installation commander
--- Base driving privileges
--- AAFES & Commissary shopping privileges
--- Ethics counselor: Gifts, financial disclosures, off-duty employment, etc
--- Posse Comitatus Act issues
--- Base access questions
---- Debarment letters
---- Onbase political demonstrations
---- Onbase commercial solicitations
---- Open houses
--- Federal Magistrate's Court (depends on base jurisdiction)
---- Only civilians prosecuted
---- Only misdemeanor offenses tried
Reference:
AFI 51-102, The Judge Advocate General’s Department, 19 July 1994
Chapter 1
Criminal Investigations
9
A COMMANDER’S GUIDE TO THE AFOSI
The Air Force Office of Special Investigations (AFOSI) provides specialized investigation support to commanders.
ORGANIZATION
- Established following WWII to preclude “selfinvestigation”
-- Patterned after FBI; removed from command channels; independent centralized organization
-- To ensure unbiased, factual investigations
- Became operational 1 Aug 48 and now organized under SAF/IG
- Missions include investigating allegations of criminal activity and fraud, as well as force
protection and counterintelligence operations
-- To provide complete service to assist commanders in carrying out the responsibilities of command
-- Since 1972, AFOSI’s CONUS personnel security investigation function transferred to Defense Investigative Service (DIS); AFOSI still assists DIS in overseas needs
- AFOSI AND COMMAND
- Requesting AFOSI investigative service
-- AFI 71-101V1 and AFPD 71-1
--- Investigations initiated on authority of AFOSI/CC, as delegated to AFOSI Region/CC
--- AFOSI will brief Air Force commanders on progress of investigations affecting command