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The recent firing of Brigadier General Warren Wells, the Army’s first-ever lead special trial counsel, casts a shadow of doubt over the future of the special trial counsel and the defense counsel in the military justice system. While Secretary of the Army Christine Wormuth cited a “loss of trust and confidence” stemming from an old email expressing skepticism about false allegations, the implications for fair trials and due process run deeper. Here’s why the decision raises concerns for the independence of special trial counsel and the integrity of the military justice system:

Chilling Effect on Independent Military Defense:

Wells’ email, albeit controversial, highlighted legitimate concerns about potential false claims and the need for rigorous evaluation beyond accusations alone. He was at the time serving as an Army Regional Defense Counsel (RDC) supervising a group of military defense counsel. If you are facing an Army court-martial, you will meet or have met an Army Trial Defense Service attorney whom an RDC is supervising. The reason for firing Wells sends a chilling message to defense lawyers whose duty it is to challenge the prosecution narrative, scrutinize evidence, and advocate zealously for clients. Secretary Wormuth’s action may create fear and self-censorship, inhibiting defense counsel from fulfilling their ethical duty to their clients and undermining the adversarial process that safeguards justice. Out of self-interest, they might not take legitimate action in their representation for fear that years later, what they said or did may affect their career.

The Secretary of the Navy has issued a significant change to Article 15/NJP procedures for service personnel assigned to or embarked on a vessel.

The Navy’s vessel exception is part of the Uniform Code of Military Justice (UCMJ) that allows the Navy to deny service members the right to demand a court-martial instead of nonjudicial punishment (NJP) if they are “attached to or embarked in a vessel.” This exception was created in 1962 to give the Navy more flexibility in disciplining sailors at sea, where conducting a court-martial can be logistically challenging and time-consuming.

The vessel exception has been controversial since its inception, many of us as military defense counsel have been critical of it, arguing that it strips sailors of their due process rights. In recent years, there have been calls to repeal the exception, and in 2023, the Navy announced that it would be expanding the circumstances in which sailors can refuse NJP. That change is here and your military defense lawyer can help you understand the change and how you might benefit from it.

The UCMJ makes it an offense under Article 107 to:

• Sign a false record, return, regulation, order, or other official document, when you knew it was false; or
• Make any verbal/oral false official statement when you knew it was false.

A press release alerts us to several proposals for the NDAA FY 2023 which could affect military justice. One addresses Supreme Court access (something NIMJ has long advocated for), and another is the question of unanimous verdicts post-Ramos v. Louisiana. A third addresses a suspect’s records (and their removal) when “Service member is subject to non-judicial punishment for the offense to which the record pertains; or is pardoned for the offense to which the record pertains.” You can find the House Armed Services Committee actions here. We get many requests from persons who want to have criminal records expunged when their case is not referred to court-martial but is dealt with by Article 15 (NJP) or administrative discharge. These records often wrongly suggest the person was “convicted.” They also can be retrieved by current and future employers when making a hiring decision. So, the “Titling” of a subject on MCIO investigation can be affected for the rest of their life, even when not convicted of something.

Courtesy GMJR.

For those following the ongoing litigation in Dial, here is a link to the current status (18072022).

Let’s begin with 10 U.S.C. § 1553a.

(a)Establishment.—

The Secretary of Defense shall establish a process by which to conduct a final review of a request for an upgrade in the characterization of a discharge or dismissal.

Probably not successfully based on AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022) and E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019).

In each of these cases, a military judge had granted discovery of mental health information that the alleged victims claimed was protected by Mil. R. Evid. 513, in other words, the military judge was wrong. They had sought relief from the Court of Criminal Appeals and from the Court of Appeals for the Armed Forces without success.

The basis for seeking a writ was essentially that