1. Kansas Army National Guard
JAG Legal Brief
Major Alma L. Whitelaw
Judge Advocate
Kansas Army National Guard
Instruction Note:
Selected Note Pages contain instruction comments to assist with your presentation.
To ensure this is the most current version, please go to
Instructor comments:
This briefing is not meant to take the place of counseling clients on these issues. If anyone has individual questions, then you should make an appointment with legal assistance and refrain from asking your personal question in the presence of a large group.
Current as of 1 AUG 09 1

2. Agenda Introduction Soldier involvement with law enforcement
Military Justice options
Lautenberg
Legal issues with PTSD / trauma (combat induced, sexual assault, other)
Service of process
Legal resources
Questions

3. Introduction 3

4. Military Acronyms
Handout in Folder
Joint Pub 1-02 – DoD Dictionary of Military & Associated Terms

5. General Acronyms AR – Army Regulation AFI – Air Force Instruction
DA – Department of Army
DD – Department of Defense
KSNG – Kansas National Guard
KSANG – Kansas Air National Guard
KSARNG – Kansas Army National Guard
Reg – Refers to any governing regulation
SM – Servicemember
SRP – Soldier Readiness Processing

6. Military Pay Acronyms 2 of 2
IDT – Inactive Duty Training (Drills)
LES – Leave and Earnings Statement
MUTA – Multiple Unit Training Assembly
PEBD – Pay Entry Basic Date
SGLI – Servicemembers Group Life Insurance
TSP – Thrift Savings Plan
UTA – Unit Training Assembly
VHA – Variable Housing Allowance
YIS – Years in Service

7. Soldier’s Involvement with Law Enforcement7

8. The Kansas National Guard Command & Leadership take seriously any military member involvement with law enforcement.

9. Actions Let us know How know it’s person is military?
Haircut
Reaction when asked
NG / Veteran License plates
Ask us
Joint Operations Center (JOC):
24 hour operations

10. KSNG Actions
Command receives notification / “Serious Incident Report” (SIR)
JAG Office requests police reports
Soldier/Airman “flagged” for no favorable actions
JAG Office tracks and follows court process
Adverse administrative actions available

11. Adverse Administrative Actions
Separation from military service
Bar to re-enlistment
Removal from promotion lists
Loss of security clearance
Removal of leadership positions/schools
Bad evaluations (“referred”)

12. Separations Convictions by civil court Patterns of misconduct
Abuse of illegal drugs or alcohol
DUIs
Possession, Use, Distribution
Any alcohol / drug RELATED offense
Commission of a serious offense

13. Characterization of Discharge
(When separated from
military service) 13

14. Separation from Service– Characterizations of Discharge
Honorable – standard / normal
General – minor misconduct
Other than Honorable (OTH) – bad stuff
Bad Conduct Discharge (BCD) – courts-martial
Dishonorable Discharge – WORST!!! General Court-Martial

15. Separation from Service –
Honorable Conditions
End Term of Service (ETS)
Retirement
Pregnancy
Hardship (typically family hardship)
Height/Weight/PT

16. Administrative Separation from Service – Misconduct
Administrative Separation Board
If SM has over 6 years of service or command wants OTH
Common Types of Misconduct
Illegal drug positives from urinalysis
Possibly misdemeanor DUI, assault, etc
Service specific issues (disrespect, mil jurisdiction)
Conviction of felony
“Major misconduct” or “Series of misconduct”
Range of Discharges
“Honorable” OR
“General Under Honorable Conditions” OR
“Under Other than Honorable Conditions” (OTH)

17. Effects from Discharge
Honorable – eligible for all benefits
General –
May effect some federal / etc jobs
Keep most VA benefits
Other than Honorable (OTH) –
LOSE most VA benefits
Not eligible for any federal job, federally funded job, many other job sources

18. Charts in VA Handout in Folder

19. Included in Folder Under this Handout
VA Handouts
Included in Folder Under this Handout

20. Popular Veteran Service Organizations
American Legion
Veterans of Foreign Wars(VFW)
American Veterans (AMVETS)
Disabled American Veterans (DAV)
Paralyzed Veterans of America (PVA)
Wounded Warriors Project
Instructor Comments:
Estate planning is more than just drafting a will. There are many other things to consider when determining what happens to your property in the event of your death.
SGLI: Often, a Soldier’s greatest asset is SGLI, which is now worth $400,000.
It is critical to ensure that your SGLI designation is correct.
The last documented designation will control. If you have your ex-spouse named on your SGLI, that person will get it, even if you are remarried or want your children to get it. MAKE SURE YOUR SGLI REFLECTS YOUR WISHES.
If you are married and you name someone other than your spouse as beneficiary, or if you leave your spouse less than the full amount, then your spouse will be notified. If you are not married, and you choose anything other than the full amount of coverage, then your next of kin will be notified. Please see the SGLI web site for further information about his notification.
Do not name a minor child as a beneficiary. The Office of SGLI (OSGLI) will not pay the SGLI proceeds to a minor and the payment will be on hold until a court appoints a custodian. Your Legal Assistance Office can provide you with the correct language to use on your SGLI and will to ensure that you have set up a legally sufficient gift to your minor children. 20

21. Legal Issues: PTSD Sexual Assault21

22. Discussion – no slides! 22

23. The Lautenberg Amendment -29

24. Gun Control Act of 1968 (ACT)
Basic framework for gun control in the US
Made it illegal for Felons to carry firearms
Prior to 1997, the Act provided an exception for members of the Government which waived the Acts prohibition to the extent the weapons were duty related
Affected: Law Enforcement & Military
REPRESENTING CITIZEN SOLDIERS 30

25. Lautenberg Amendment of 1996
Increased the scope of the Act’s prohibitions to include not only felonies but also anyone convicted of a misdemeanor crime of domestic violence
No Government / Military exception for misdemeanor convictions of domestic violence
REPRESENTING CITIZEN SOLDIERS 31

26. REPRESENTING CITIZEN SOLDIERS
18 U.S.C. 922
Unlawful for any person who has reasonable cause to believe that they have a misdemeanor conviction of domestic violence to possess, ship, transport or receive firearms and ammunition.
Unlawful for any person to transfer or issue firearms or ammunition to any person he or she has reasonable cause to believe has a qualifying domestic violence conviction.
REPRESENTING CITIZEN SOLDIERS 32

27. DoD’s Definition Qualifying Domestic Violence Conviction
A qualifying domestic violence conviction:
either a felony or misdemeanor conviction
underlying facts indicate
the use or attempted use of physical force or the threatened use of a deadly weapon involved
crime against a person with whom the soldier had a familial or family-like relationship (i.e., spouse, person with whom cohabitated like a spouse, person with whom a child is shared, child or step-child).
REPRESENTING CITIZEN SOLDIERS 33

28. REPRESENTING CITIZEN SOLDIERS
Additional Guidance
**The underlying conviction need not specifically state the crime involved domestic violence.**
The underlying facts of the crime determine whether the Lautenberg Amendment applies.
Examples:
A misdemeanor conviction of crimes such as "assault”, “battery", or "criminal threat" will apply under the Amendment, if the victim had a qualifying relationship with the defendant and there was a threat or use of force or a weapon was involved.
REPRESENTING CITIZEN SOLDIERS 34

29. Convictions/Substantiations “Exceptions”
Deferred prosecutions
Diversions
Dismissals
Expungements
(Keys off of “conviction” element)
REPRESENTING CITIZEN SOLDIERS 35

30. Potential Options for Plea Agreements
Many times will plea to lesser, amended charge
Underlying facts still an issue!!!!
Possible options to protect SM from Lautenberg:
Transcript of proceedings indicating no proof of one of key elements
Signed, written agreement between DA/County Attorney and Defense Attorney that no proof of at least one key element
Contact a Judge Advocate!
REPRESENTING CITIZEN SOLDIERS 36

31. REPRESENTING CITIZEN SOLDIERS
Expungement
Authorized exception
KS – 3 years min for misdemeanor
Will it occur in time to avoid separation if can’t re-enlist?
Still command option
Usually allowed more as an “entry” condition rather than when already in NG
REPRESENTING CITIZEN SOLDIERS 37

32. Servicemember Impact 1 of 2
All SMs known to have, or reasonably believed to have a qualifying domestic violence conviction:
must turn-in all Government issued firearms and ammunition
must be reassigned meaningful missions that do not place them into a supervisory, leadership, or property accountability position that would require them to have access to firearms
may not deploy on any mission requiring possession of firearms or ammunition
are not eligible for overseas assignment
REPRESENTING CITIZEN SOLDIERS 38

33. Servicemember Impact 2 of 2
not authorized to attend school where instruction with individual weapons or ammunition is part of the curriculum
inability to complete service schools may impact future promotions and their career
may still extend for up to one year, if otherwise qualified
may not reenlist; ineligible for reenlistment program
may be immediately discharged
REPRESENTING CITIZEN SOLDIERS 39

34. REPRESENTING CITIZEN SOLDIERS
KSNG Servicemembers
If the underlying / initial police report identifies any of the factors outlined in this briefing, the SM will be considered to have a Lautenberg Amendment violation unless acceptable proof to contrary provided.
SM will most likely end up discharged – losing their status as a military member.
SM may or may not recognize the danger of losing their military career when approaching their civilian case.
REPRESENTING CITIZEN SOLDIERS 40

35. Service of Process & Subpoena

36. BEST PRACTICE!!! SM signs VOLUNTARY release of SM’s information
No specific form
Need full name, rank, SSN, DOB
SM VOLUNTARILY accepts service

37. NG / USAR Service of Process
Cannot serve commander or other individual
Must have permission to enter armory or compounds to serve individual (if at all)
Serve through regular process authorized through K.S.A., i.e. home address, regular employer, etc.

38. Military Records Subpoena
Must have Judge’s signature
National Personnel Records Center (NARA) for discharged or deceased veterans
Must include following information:
Name, SSN, date of birth, branch of service, dates of service.
Medical records must also include dates and places of treatment
SF 180, Request Pertaining to Military Records for SMs still active
FOIA & Privacy Act apply to all records

39. Military Personnel Subpoena
SM cannot typically testify about any “official information” pertaining to military duties or operations.
Department of Defense Directive (DOD) , “Release of Official Information and Testimony by DOD Personnel as Witnesses.”
generally provides that official DOD information and personnel should be made available to Federal and State courts.
“unless the information being sought is classified, privileged or otherwise protected from public disclosure.”
See Chapter 7 of AR 27-40; 32 CFR Part 516.
Must be solely a personal matter between the SM and the requesting party.
SM must interview with SJA prior to testifying.

40. Resources

41. Publications (Regulations, Forms, Etc.)
All Army publications to include regulations and forms can be located online at
Army Publishing Directorate (APD)
Google!
REPRESENTING CITIZEN SOLDIERS

42. Kansas Military Legal Offices
Kansas military installation legal offices (AD)
Fort Leavenworth (Army) - Ph:
Fort Riley (Army) - Ph:
McConnell AFB (Air Force) - Ph:
Kansas National Guard JAG Office –
8th Legal Support Organization, US Army Reserves, , Ext 2156 (USAR)

43. Kansas National Guard
JAG Contact Information
Colonel (COL) Matthew Oleen
Senior Staff Judge Advocate
Legal Advisor to The Adjutant General (TAG)
2800 SW TOPEKA BLVD
TOPEKA KS 66611
(MAIN)
(FAX)

44. QUESTIONS?
Questions or comments about this briefing may be referred to the Training Developments Directorate, The Judge Advocate General’s Legal Center and School by going to and submitting a helpdesk ticket. 50