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Are administrative separation board hearings procedurally unfair?

Is it possible to receive a fair trial in the military? Although the Uniform Code of Military Justice offers certain procedural protections in the military’s criminal justice system, a recent article questions whether service members might still have an uphill battle. 

The article profiled a major in the Marine Corps who taught history at the U.S. Naval Academy. The major had already been court-martialed on allegations of sexual assault against two female students. The court-martial acquitted him of rape charges, but resulted in convictions for five lesser crimes. The major consequently served two months in military prison.

Yet the major’s release from the brig did not signal the end of his troubles. The next obstacle was an appearance before a board of inquiry. The outcome would determine whether the major could remain in the Marine Corps. A commander who had been the prosecutor in the court-martial proceeding was called as a witness.

As in civil law, attorneys usually aren’t called as witnesses in cases involving former clients or party opponents. Even several military law experts mentioned in the article agreed that the prosecutor’s appearance as a witness was highly unusual, although not technically prohibited. The prosecutor claimed that he wanted to testify about additional evidence not used in the court-martial proceeding.

An appearance before a board of inquiry or at a similar type of administrative hearing can result in lifelong consequences. An administrative discharge hearing, for example, could result in a service member’s separation and loss of military benefits. Highlighting procedural improprieties is just one of many possible defense strategies that a law firm that focuses on military law, like ours, might utilize. 

Source: Washington Post, “Could military judge accused of lying during sexual-misconduct case face investigation?” John Woodrow Cox, March 20, 2016

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