Getting Busted - Military Style ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ by TC In light of Agent Steal's article on getting busted by the feds that was published in 2600 in the late 90s, I thought I would write an article for the military audience and for those thinking of joining the military. First, a little background information on military law. Those in the military are all covered under the Uniform Code of Military Justice (U.C.M.J.), which follows Title 10 of U.S. code. The U.C.M.J. became effective in 1951. Before that time, military personnel were covered under the Articles of War. The Articles of War was different, and one of those differences was that it did not allow persons under military jurisdiction to be subject to civilian law. You could say that is where the term "join the Army or go to jail" came from. Congress gave the executive branch control of this as it is the branch that controls the military, even though they have been known to stick their noses in it and make their own changes. This means the President can make changes to the U.C.M.J. at his discretion. The U.C.M.J. is also a separate legal entity so you cannot appeal your case to any federal civilian court except the Supreme Court. Each branch of the military has its own law enforcement agencies. The Army has the Criminal Investigation Division (CID), Military Police Investigations (MPI), and Military Police (MP). The Air Force has Office of Special Investigations (OSI - not like on the "Six Million Dollar Man" TV series), and Security Police (SP). The Navy and Marines have Naval Investigative Service (NIS) and Shore Patrol (SP). These agencies have authority over government property, military installations, and military personnel throughout the world. The investigation agencies serve to investigate criminal activities that concern the military and its personnel. They are also known to work with federal and local law enforcement agencies, especially when it concerns military personnel or military property. Like every other policing agency, they also have their own undercover agents. Each branch even has their own customs agents overseas. They usually handle black marketing. Congress also has a directive or law that instructs that the military installation is to enforce state laws that the post is in. In fact, I will mention one incident that happened at Fort Sill, Oklahoma in January 1995. The state has a law that prohibits distributing certain kinds of pornographic materials. You may have heard about one case in Oklahoma City in the mid 1990s concerning a couple who ran a BBS there. They got busted for selling the stuff on it. It was the same stuff that you can get from all those x-rated producers in California. Oklahoma, being in the "Bible Belt," decided to ban hard-core porn. In the Fort Sill and Lawton area, local law and the CID got together and busted a couple of people that had BBSs on Fort Sill with some porn on their systems that people could download. One of them decided to become a snitch in order to get out of trouble and they only ended up with a Bad Conduct Discharge. These investigative agencies are known to use coercion tactics to get people to talk. Coercion is difficult to prove so I would suggest to anyone that they not say anything to them at all, no matter what they say to you. Of course, if you do ever get yourself into a situation where they want to interrogate you, ask for an attorney. They are provided free of charge and you do not need an appointment to see one. The biggest thing that gets people convicted is their own mouth. Even if you just think you are under investigation, go see a military attorney at once at your nearest Trial Defense Service on post. The only problem with these free attorneys is that they do not have a big legal staff to assist them, so they do all the casework themselves. That makes presenting your case difficult. I should cover some of the rights of military personnel - or lack of rights. Like everyone else, members of the military have the same basic rights. There are a few differences though. One right that is unavailable is the Fifth Amendment right to a Grand Jury indictment. The Fifth Amendment states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger...." This issue has been before the Supreme Court and they have decided that military personnel do not have a right to a grand jury indictment. You of course get something similar which I shall explain later. The military also has loopholes when it comes to unreasonable searches and seizures. Any time a person comes onto a military installation it is considered a border crossing by law and all persons and vehicles are subject to a search. Personnel living in the barracks do have rights against unreasonable searches, but on the other hand commanders have the right to do a health and welfare inspection of everything that is under their command. That includes bringing drug sniffing dogs through and having selected individuals search through your stuff to find contraband that may affect the health and welfare of everyone there. Even if you collect knives, they are not supposed to be there and will be taken. Married people who live in family housing on post do have a lot more privacy, but it still is not too hard to get in there either. Your best bet for total privacy from the military is to get a place off post. Try not to get in trouble with your chain of command as they can direct where you can live if you are troublesome to them. Once an investigation of you has been completed, the case is turned over to your chain of command for decision as to what should be done next. It could be nothing all the way to a general court-martial. So if the commander of that post decides he wants you court-martialed, it would be in the best interest of the other commanders in your chain to go along with his decision, if they value their careers. There are many types of military justice to recommend against you. First, there is a general court-martial. A general court-martial may try any case and may impose any prescribed punishment, including the death sentence. Then there is a special court-martial. It may try offenses involving non-capital offenses made punishable to code. Next up is a summary courtmartial. It can try and sentence persons guilty of more minor offenses. Last is non-judicial punishment. It is known as an Article 15, or in the case of the Navy and Marines, captain's mass. There are also three levels to this. First is field grade. Next is company grade. Last is a type of company grade, but it doesn't count against you. The most you can get from an Article 15 is reduction of rank, forfeiture of pay, extra duty, and restriction. If you have been recommended for general court-martial, you will next get your charges read to you by your commander. He will read each individual charge to you. I have heard from people who have had something like 200 charges who kept falling asleep during the boring ordeal. Note that you may have many Article 134 charges on your charge sheet. This article is known as the "catchall" article. If there is no other article under the U.C.M.J. to cover what you did, then the catchall will get you. As soon as the charges have been read to you, the military has 120 days to bring you to trial, but with a catch. As soon as you are indicted, it is considered that you are brought to trial. At that time though you can immediately demand that you go to trial. This may be good if the military is not ready to proceed. Soon after the charges are read to you, you will have an Article 32 hearing. This is somewhat like a grand jury. It's like a mini trial, which you are present for. The purpose of the Article 32 is to determine if there is enough evidence to proceed with a court-martial. The problem with this is it is run by a selected officer who knows nothing about law or procedure. Since this person does not know what they are doing, they will certainly just come to the conclusion that the courtmartial must go ahead. They do not want to go against that general who wants the court-martial to proceed (good career move). After the Article 32, you now get ready for trial. During this time, the same general who wants you court-martialed also gets to select who will be on your jury! Do you smell setup or what? The military calls its jury a panel that consists of six members who are at least rank of colonel down to major. If you are enlisted, you can have one third of the panel enlisted. They also start at high-ranking sergeant majors and go down. So if you are a lowly ranking enlisted person, you will not have a jury of peers, but supervisors! Here you have a trial with a panel of members selected by the commanding general and you believe they aren't thinking about their future and retirement? Most of the panel members will have a mentality of "He must be guilty or he would not be on trial." (You do have the option of having a trial by judge only. They are sometimes brought in from other commands and tend to be a bit more neutral.) Despite the drama you may have seen on TV, a two thirds vote is what is required for guilty or not guilty. There are no hung juries. I will also note that according to compiled statistics from military organizational groups, the acquittal rate for a military court-martial is about two percent. If you are offered a plea agreement, you should seriously consider it. If you don't take a plea agreement, you look at more time in the long run if found guilty. It has also been noted that a court-martial tends to be more cautious of what it does when the media is paying attention. A good example is the trial of former Sergeant Major of the Army Gene McKinney. His best defense in his case was contact with the media. If you think you are getting snowballed by the military, contact the media and tell them of the military's conduct. The military justice system despite its flaws is very efficient and swift. On average a trial is about two to three days and you are sentenced and put in jail as soon as it is over. On the other hand, sentencing is not like the feds with their sentencing guidelines. This can be bad or good depending on your crime, personality, demeanor, remorse, and taking responsibility for your guilt (if found guilty). So if you know you are going to get slammed, you might as well put on a good show for them. Tell them how sorry you, show sadness, cry, anything to get that time down as low as possible. After sentencing, it's time for appeals. The military judge or panel can only recommend your punishment. Your case now goes to the commanding general for review. He gets together with his advisors to discuss what to do with your case. He can either go with the recommended punishment or reduce it, but not give any more than the recommendation calls for. Once he signs off on it, it goes to the next level for review. This process with the general usually takes about six to eight months. During this time - if your time in the military has not expired - you will continue to get paid until the general takes action on your case. At that time, if you have received forfeiture of your pay, your pay will stop when the general signs off on your case. If you have not received forfeiture, your pay will continue until your end of service date. The next stage of the automatic appeal of your case goes to the service branch Court of Criminal Appeals. If you are Army, your case would go to the Army Court of Criminal Appeals. At this time you also get a new attorney who will handle your appeal from now until it's done, unless he changes duty stations. The chances of getting any relief from this court are very slim, as it is also run by folks in uniform. How long this process could take is really different for everyone. Some take months, some take years. The next step of your appeal is to the United States Court of Appeals for the Armed Forces. There is not an automatic review from this court. The court decides if it will review your case. If it does not, your appeals are over and you cannot have the Supreme Court review it. If you had a plea agreement, it usually takes about one year for your case to go through the appeals review. If you pleaded not guilty and are continuing to fight your case, it is not uncommon for a person to be released before their case has been through an appeals review. After you have been sentenced it is off to jail. The Army, Navy, and Marines have their own prisons. The Air Force does not have confinement facilities and they send their own personnel to the nearest base. Those who receive a sentence of five years or less will be sent to a regional facility that is closest to their base. These facilities are like basic training and are very boring places. Expect much kitchen duty and filling of sand bags. Everyone else who gets more than five years is sent to the United States Disciplinary Barracks at Fort Leavenworth, Kansas. This is the first and oldest federal prison in the United States. The original building was constructed in the early 1900s. The original site dates back to 1875. The "castle" as they call it is currently in a state of massive decay. People have been injured by the falling matter coming from the very high ceiling. The place has a capacity of about 1500, but there were just around 890 people when I was there in the late 90s. It is closed now as a newer prison has taken its place with a capacity of about 515. Inmates were being transferred to the Federal Bureau of Prisons in order to transition over to the new facility because of its smaller size. Compared to the F.B.O.P., the U.S.D.B. is really not that bad of a place to be. The U.S.D.B. has five different security levels it handles. Because of this, the old facility had a 40 foot wall around the entire place. The security levels are Maximum, Medium, Minimum Inside Only, Minimum, and Trustee. Once you get to Minimum you can live in a dorm and have a TV and stereo with cassette player, CD player, and of course a typewriter or word processor without disk drive. At one time computers were allowed, but not anymore. They got rid of them through attrition. I know of one person who had to hide a hard drive in his computer, as they were not permitted. He would turn it on and off in the system BIOS. The size of their manpower has shrunk along with the rest of the military and they claim they cannot maintain security of computers with the amount of personnel they have. You can also leave the wall and work outside as a Minimum with the supervision of a guard. As a Trustee, you live about a half mile from the prison. It's comparable to the Federal Prison Camp of the F.B.O.P. They at one time could get a job in town, but that was taken away. Now you are just able to work around Fort Leavenworth. You can also have a video game machine, go shopping every two weeks at the exchange on post, and receive packages from home. The other custody levels there are not worth mentioning. Military corrections is controlled by a Department of Defense directive and supplemented by each service's own regulations. Its system is set up quite similar to the feds' "old law." Up front an inmate gets an amount of good time based on their sentence length. A person with ten or more years of a sentence length gets a rate of ten days per month. Under ten but more than five get a rate of eight days per month. That amount of time keeps going down as you have less time. There is also extra good time one will receive for working on an assigned detail in the prison. The rate starts at one day per month for the first five months. It continues up the scale until you get to five days per month, which takes nearly two years to achieve. Those who become Trustees will get up to seven days per month as long as they remain out there. And that is not the end of it. For special projects and such, it is possible to earn an additional five days per month. But nowadays it is very difficult to get any of those days due to the lock 'em up and throw away the key attitude. Those with life or on death row cannot receive any good time. Military inmates are also eligible for parole after serving one-third of their sentence for those with up to thirty years. Those with more than thirty or life are eligible after ten years. Death row inmates are not eligible for parole. Those who are granted parole must remain on parole until the expiration of their maximum sentence length and they are under the supervision of a U.S. Parole Officer. The problem with parole though is that the conditions could be changed and there is nothing you can do about it, except maybe violate parole. Military inmates also get a yearly clemency review for a time reduction, restoration to duty, and upgrade of their discharge (DD 214) that is reviewed by a local board and their respective branch secretary. Restoration to active duty is exactly what it sounds like. Individuals are returned to active duty for the remainder of their sentence at the rank they were demoted to. When they successfully complete their time in service, they will receive an honorable discharge. The problem with this clemency review is that no one gets any sort of clemency from them anymore. The process is still on the books and still must be conducted. Nor has anyone been returned to duty in years either. If you are transferred to the F.B.O.P., you are still considered for clemency and restoration to duty, but now the U.S. Parole Commission will determine your release on parole. Unlike the feds, once the military releases you after your expiration of sentence, you are scot-free, even if transferred to the F.B.O.P. If you are released from the military confinement, you are given a release gratuity of $25, your property is mailed home free, you are given some cheap clothes (or you can have your own sent in), and you are given the cheapest transportation home. This usually means bus, but sometimes a plane is cheaper for them. I hope this article has been informative to you all and if you end up at Fort Leavenworth, in or out of prison, do enjoy the many historic sites they have to offer as well as the scenicviews all around the post, with plentiful fruit and nut trees to enjoy.