Got another good question fo

[Lightarms]

What is the name of your state? Ft Stewart, Ga

Let's say a soldier messes up bad, like he goes out get's drunk at a few bars. It's now 4 am and everything is closed. So he being drunk and stupid gets into his drunk and drives it home. Coming to a intersection he falls asleep at the light. Cops make contact and see he is drunk after waking him up.

The cops don't charge him with DUI....why you ask? Because he was a Military Police officer and they thought it would be professional curtosy. (stupid). Anyways they tow his truck, put him in jail to sober up and give him a money ticket for "Obstruction of a intersection". No test are performed at all to check his BAC at the time. So he sits in jail all morning until the MPs come pick him up. Call his 1SGT, PS, SQDLeader. PS and SQD leader come,

As the soldier is leaving the PMO the Platoon sergeant decides he really wants to try and pin sh8t on the soldier so he gets the commander to come down to the PMO to sign a authorization for a command directed INTOX test. Soldier blows a .017.

Soldier is screwed and recieves counseling stating he will be punished to the fullest extent possible under the UCMJ for violations of

Article 92-- Failure to obey order or regulation (because the safety breif the day before everyone was told dont drink and drive by the platoon leader)

Article 111- Drunken or reckless operation of a vehicle (Can they charge this when the civilian cops didn't or write anything on the ticket about DUI?)

Article 134- Drunkenness Incapacitation for performance (for missing PT)


Would the ARTICLE 111 hold up at all when nothing was written or charged for any sort of alcohol related instanence.?

 

[Lightarms]

Oh, and another thing to add to this subject. The soldier recieves a DA Form 4856 event oriented counseling along with a Plan of Action (punishment). It states he will make periodic checks into staff duty. Soldier also was smoked for half hour or more but sergeant states that its only PT not a smoking session because soldier missed PT and 1SGT put out anyone who misses PT will do it later.

Can they punish the soldier twice with a counseling and UCMJ?

Again they have no evidence from the time of arrest. No breathalizer, no field sobriety test and nothing on the money ticket said anything about DUI/Alcohol etc.

 

[fozzy2]

The key question here is whether the military will try and court martial him, or go the NJP/administrative route. The rules of evidence typically don't apply in NJP, the CO has vast discretion about taking whatever evidence he thinks is relevant and determining what he thinks happened. Things like hearsay evidence, imperfect searches, etc. all are much more easily used during NJP. So my guess is, precisely because the civilian police "botched" their fact gathering duties, the military would use NJP with its more lenient standards of admissibility, etc.

So this guy is looking at several NJP specs, and then administrative sanctions like, say, bad evals, letter in the service record, disqualification from duty in MOS (i.e. no more MP), recommendation for "do not re-enlist"..... all of which could lead to admin discharge or review board or whatever. The CO can probably get the guy booted from the corps and in the meantime keep him in the doghouse - which is probably enough to make the chain happy.

 

[badapple40]

Of course, the military member could decide that they can't prove anything, and decide to demand trial by court martial, and demand special, not summary court martial, with trial by members.

It is the equivalent of a hold 'em poker "all in," and needs to be thought through before going that route -- but you don't HAVE to accept NJP.

 

[Lightarms]

Well I think they messed the whole thing up and it can be thrown out. I talked with a former MP and a lawyer in Nevada who says he had a soldier with a similiar situation and the article 15 was thrown out because they cant prove what the BAC was at the time of arrest. There is a calculation to use that can tell you the BAC but they also need to know how fast your body breaks down the alcohol which is I guess almost impossible to prove.

The intox I took like 7-8 hours later might not be admissible because they have laws in most states that say it has to be taken within 2 hours of apprehension. Not sure how that applies to a soldiers situation though.

Another thing is I was never read my rights when I got to the PMO and my PS and Squad leader were asking me questions about who, what, where, and when kind of things. I was still in custody. They are MP's themselfs too so I don't know how that works. Heck I know this girl in my unit last week that was gonna get an article 15 for underage drinking, my platoon sergeant kept asking her questions of where, who, gave her the alcohol and stuff and well he couldnt charge her anymore because they never read her, her rights.

The lawyer says I should demand trial by court martial because the unit will have a hard time proving I was drunk even with a statement by the cop and a BAC 9 hours later. Today I will be getting with JAG and see what they can do for me.

 

[fozzy2]

The danger with requesting a court-martial is that they don't have to prove all the charges, just one, and you will probably end up much worse off than with an NJP. For example, even if they can't prove you drove drunk they could still hit you with the Article 92 or 134 specs you mentioned. They'll drop 'drunk driving' and hammer you for the missed PT or whatever. In real life it often works likes it did in "A Few Good Men." The Marines beat the main charge, but ended up convicted on the lesser charge of "conduct unbecoming" and getting booted out anyway. In addition, having a BAC test is not usually a legal requirement for being convicted of drunk driving anyway, I've seen people convicted without blood or breath tests (esp. if they have you on video). They might also throw you a curve-ball and charge you with an 'impaired on duty' type of offense. Were you supposed to be at work that morning? You said you missed a PT.

At any rate, talking to a JAG is definitely a good idea. Don't be surprised, however, if s/he advises you to take an NJP. You can win a lot of battles at court martial but still lose the war.

 

[Lightarms]

I was never read my rights when questioned

I wasnt charged with anything with alcohol

Platoon sergeant had whole formation show up and made me everyone what I did (violation of privacy?)

Wont that get rid of the whole thing alone?

I know people in my company that were getting article 15s and the PS started asking questions without reading their rights so they had to throw out the whole case.

 

[SHORTY LONG]

All discretionary with your CO having wide latitude.

 

[DRTDEVL]

The intox I took like 7-8 hours later might not be admissible because they have laws in most states that say it has to be taken within 2 hours of apprehension. Not sure how that applies to a soldiers situation though.

Your BAC was 0.017 9 hours after apprehended... This helps your case how??? This is more than enough to prove you were in violation of a lawful order (don't drink and drive) since you were in custody the entire time from apprehension until the intox was administered.

Another thing is I was never read my rights when I got to the PMO and my PS and Squad leader were asking me questions about who, what, where, and when kind of things. I was still in custody. They are MP's themselfs too so I don't know how that works. Heck I know this girl in my unit last week that was gonna get an article 15 for underage drinking, my platoon sergeant kept asking her questions of where, who, gave her the alcohol and stuff and well he couldnt charge her anymore because they never read her, her rights.

No problem... Only the Investigating Officer's questioning counts. Read AR 15-6.

The lawyer says I should demand trial by court martial because the unit will have a hard time proving I was drunk even with a statement by the cop and a BAC 9 hours later. Today I will be getting with JAG and see what they can do for me.

What a quack of an attorney.

Another thing... Your "Double Jeopardy" claim has been disproven many times in CM... The DA FORM 4856 only lists "Corrective Training", not "Punishment". You have not been issued any punishment yet... Only training to help you correct your deficiencies (deterrence by physical labor). You are lucky that you are not in my unit... ANY alcohol related incident is met with a DA FORM 4856 from the CO himself, another "Administrative Action" form he created that will remove ALL pass privileges (restricted to base, no civilian clothes, no POVs, sign in at CQ every 2 hours until 2200) for 30 days, then face Field Grade ART 15, followed by Chapter Paperwork. We are not MPs... We are Truck Drivers. We require a license even more than you do to perform our duties, yet we are not expected to be representatives of the law enforcement community.

Honestly, my belief is that you should be prosecuted to the fullest extent of the law, period. No loopholes, no pleas. You didn't come here to hear that, though, so I will step aside and let others chime in. Maybe you can garner something useful to help your case, but I seriously doubt it.

 

[badapple40]

The issue DRT is that 9 hours later might not prove that he was driving over the limit. The issue is that initially BAC is low, and, as the body processes it, it increases. He could be 0.06 for hour 1, then 0.08, then 0.1 hour 3, etc. Partially it depends on metabolism and other factors. No doubt, 9 hours later, he was HAMMERED and drank a lot to get there. But thats not against the rules. Only driving impaired. Lets say I consume 6 beers in an hour.

The 0.017 is EXTREMELY low. I think that they'll have a rough time proving the 111. Maybe easier proving the Article 92, depending on what the order was. Was the order don't drink anything and drive? Is there a limit on that? So if soldier A drinks at noon Monday, he can't drive on noon on Friday? What WAS the exact order given?

The missing PT could be an issue, and is likely the biggest issue. Even if they don't get him on the drunk on duty, they probably still can get him on failure to be at his appointed place of duty.

 

[Lightarms]

Exactly, that's all I'm saying. I've talked with JAG on the phone and set up a appointment for tomorrow. Whoever I was talking initially agrees that they can't get me on the 111 and 134 and it can be faught the 92 might be tricky all depends on how the order of not to drink and drive is defined by law and by the commander really. He also agrees that a lot of my rights were violated by my NCOs so I have a good chance of winning the case. I'll have to find out tomorrow.

 

[Lightarms]

Just an update: Today I was read my Article 15 and the commander a Maj is charging me with Article 134 (catch all) for Drunkeness or Incapacitation during duty. Im about to go see jag now. I'm still sure they cant get me on it. Since they violated my rights. woohooo

 

[Lightarms]

Well, I went to JAG. My command did screw up on some of the paperwork but nothing that will void it. They can't scientifically prove the ART 134 and they messed up not reading me my rights and questioning me, so they dropped that charge. And the ART 92. They left the charge of 134 for Drunkeness or Incapacitatoin for duty. Which JAG said it should actually read Failure to appear at a apointed place for duty or something like that. But it doesn't make a difference they can just change it and still give me the ART 15. So they advised that I just take it and have somebody speak on my behalf about my character and stuff. It's gonna be my teamleader I had while in Iraq for a year.

 

[questionia]

Given that your CO is a MAJ you will be getting a field grade ART 15, right?

 

[Lightarms]

Well just got done with extra duty My commander a Maj is changing command over to a new capt in a few days. So they processed my Art 15 in a few hours lol. He could give me a Field Grade but it would fit the crime so he only gave me a Company Grade. No rank or pay is taken (suspended probabtion for 180 days). 14/14 for extra duty and restriction to battallion area, no reprimand/abdomition, and I have to sign in to staff duty a few times everyday of the week.

I think he was lenient because of my mental status right now. He knew about some PTSD and other disorders I have from Iraq and maininly from 19Sep06 the night I saw my platoon leader get killed by a car bomber and injure the rest of the guys in the humvee. I had my teamleader at the time speak on my behalf about my character since I spent a year with him. The commander figured I was having some major problems apparently and started to say what he thought was the reason behind my recent addiction to alcohol and my attitude since 19sep06, and my overall appearence of looking down all the time. Once he started talking about it that's when I decided to open up about my depression and PTSD, and the Mental Health people I went to see etc. He advised me to go offpost using a militaryonesource free checkup. It was hard for me to tell him about my problem because there was a bunch of people in the room, platoon sergeant, platoon leader, old team leader, MSGT, incoming commander. But I did. Almost lost myself for a second too But he saw where I was coming from and gave me a break. I'm thankful.