2016 Military Commander and the Law - God and …

1 MILITARYCOMMANDERTHEAND THEL AWThe Military Commander and the Law is a publication of The Judge Advocate General s School. This publication is used as a deskbook for instruction at various Commander courses at Air University. It also serves as a helpful reference guide for commanders in the field, providing general guidance and helping commanders to clarify issues and identify potential problem areas. As with any publication of secondary authority, this deskbook should not be used as the basis for action on specific cases. Primary authority, much of which is cited in this edition, should first be carefully reviewed. Finally, this deskbook does not serve as a substitute for advice from the staff judge with questions or comments concerning this publication should contacts the Editors, The Military Commander and the Law, at the following address:The Judge Advocate General s School150 Chennault Circle (Bldg 694)Maxwell Air Force Base, Alabama 36112-6418 Comm.

2 (334) 953-2802 or DSN publication is available at: the cover: F-22 Raptor pilot ( Air Force photo/Technical Sergeant Ryan Cran), A-10 Thunderbolt pilot ( Air Force photo/Staff Sergeant Joe W. McFadden), Air Force Honor Guard at Arlington National Cemetery ( Air Force photo/Technical Sergeant Joshua L. DeMotts), Military working dog handler ( Air Force photo/Airman First Class Dennis Hoffman), RED HORSE squadron ( Air Force photo/Airman First Class Joseph Pick), over iStockphoto background images by JUDGE ADVOCATE GENERAL S SCHOOLUNITED STATES AIR FORCEiEdition Thirteen 2016 THE Military Commander AND THE LAWPUBLICATION LAYOUT and COVER DESIGNMS. THOMASA T.

3 PAULCOLONEL KIRK L. DAVIES, USAFC ommandant, the Judge advoCate general s sChoolMAJOR GRAHAM H. BERNSTEIN editor-in-Chief LIEUTENANT COLONEL JENNIFER L. CLINELIEUTENANT COLONEL ERIC M. JOHNSON MAJOR LAURA C. DESIOCAPTAIN SETH W. DILWORTHexeCutive editorsEDITORIAL BOARDL ieutenant Colonel Jin-Hwa L. FrazierLieutenant Colonel Matt E. HillLieutenant Colonel Etienne J. MiszczakLieutenant Colonel Patrick E. NeighborsLieutenant Colonel Charles G. WarrenMajor Christopher D. CazaresMajor Eric H. FrenckMajor Nate G. HimertMajor Israel D. KingMajor Teah LambrightMajor Alex L. LowryMajor Jamie L. MendelsonMajor Nicole M. TorresCaptain Stephen L. McQuillanCaptain Adam G. MudgeCaptain Amanda K.

4 SnipesCaptain Travis L. VaughanFirst Lieutenant Sean R. McDivittFirst Lieutenant Nathanael D. OkhuysenMaster Sergeant Aviva D. ReinhardtTechnical Sergeant Lacey N. Quinton Technical Sergeant Adria D. WinlockMr. Mark D. StoupiiSPECIAL THANKS TO Headquarters Air Force Administrative Law Directorate (AF/JAA)Headquarters Air Force Operations and International Law Directorate (AF/JAO)Air Force Legal Operations Agency, Civil Law and Litigation Directorate (AFLOA/JAC)Air Force Legal Operations Agency, Community Legal Services Directorate (AFLOA/CLS) Air Force Legal Operations Agency, Judiciary (AFLOA/JAJ) Air Force Legal Operations Agency, Commercial Law and Litigation Directorate (AFLOA/JAQ) Air Force Personnel Center, Office of the Staff Judge Advocate (AFPC/JA) 24th Air Force, Office of the Staff Judge Advocate (24 AF/JA)iiiCHAPTER ONE: LEGAL ISSUES SPECIFIC TO THE Commander .

5 1 Sources of Command Authority ..2 Command Succession ..5 Functions of the Staff Judge Advocate ..9 Personal Liability of Commanders and Supervisors ..11 Article 138 Complaints ..14 Special Court-Martial Convening Authority Duties ..19 Unlawful Command Influence ..21 Serving as a Court Member ..24 Testifying as a Witness ..27 CHAPTER TWO: QUALITY FORCE MANAGEMENT ..29 Administrative Counselings, Admonitions, and Reprimands ..30 Unfavorable Information Files ..39 Control Rosters ..45 Administrative Demotions ..48 Selective Reenlistment ..52 Reserve Reenlistments ..55 Officer and Enlisted Evaluation Systems ..58 Officer Promotion Propriety Actions ..66 Enlisted Promotion Propriety Actions.

6 69 CHAPTER THREE: NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, UCMJ ..73 Nonjudicial Punishment Overview and Nonjudicial Punishment Actions ..83 Quality Force Management Effects of Nonjudicial Punishment ..89 THE Military Commander AND THE LAW Table of ConTenTsivCHAPTER FOUR: ADMINISTRATIVE SEPARATION FROM THE AIR FORCE ..93 Involuntary Separation of Enlisted Members: General Considerations ..94 Involuntary Separation of Enlisted Members: Reasons for Discharge ..98 Dual Action Processing of Administrative and Medical Discharges ..107 Procedure to Involuntarily Separate Enlisted Members ..109 Probation and Rehabilitation for Enlisted Members ..113 Officer Separations.

7 117 Administrative Separation of Reservists ..123 Loss of Veterans FIVE: CRIMINAL AND Military JUSTICE ..129 Installation Jurisdiction ..131 Federal Magistrate Program ..134 Court-Martial Jurisdiction Under the UCMJ ..136A Commander s Guide to the AFOSI ..141 Functions of the Area Defense Counsel ..150 Military Magistrate Program ..152 National Security Cases ..154 Sexual Assault Prevention and Response ..157 Special Victims' Counsel Program ..168 Command Response to Sexual Assault ..172 Air Force Victim Witness Assistance Program ..176 Transitional Compensation for Victims of Abuse ..180 Media Relations in Military Justice Matters ..182 Arrest by Civil Authorities.

8 187 Advising Suspects of Rights ..192 Inspections and Searches ..198 Preliminary Inquiry Into Reported Justice Actions and the Inspector General ..209 Preparation, Preferral, and Processing of Charges ..211vPretrial Restraint and Confinement ..214 Immunity ..221 Pretrial Agreements ..224 Trial Format ..227 Confidentiality and Privileged Communications ..230 Use of Information in the Personal Information File and Rehabilitation Testimony at Court-Martial ..235 Post-Trial Matters, Clemency Submissions, Convening Authority Action, and Appeals ..237 CHAPTER SIX: PERSONNEL ISSUES FOR THE Commander GENERALLY ..243 Total Force: Air Reserve Component (ARC) ..244 Active Guard and Reserve Curtailments.

9 248 Reassignment to the Individual Ready Reserve ..250 Debarment ..254 Driving Privileges ..257 Army and Air Force Exchange Service and Commissary Benefits ..260 Substance Abuse ..263 Private Organizations ..272 Free Speech, Demonstrations, Open Houses and Hate Groups ..276 Religious Issues in the Air Force ..279 Social Media ..288 Freedom of Information Act (FOIA) ..291 Privacy Act ..295 Return of Military Personnel, Employees, and Family Members From Overseas for Trial ..300 Citizenship for Military Members ..303 The Air Force Review Boards Agency ..306viCHAPTER SEVEN: PERSONNEL ISSUES FOR THE Commander ..313 Humanitarian Reassignments/Deferments ..315 The Air Force Urinalysis Program.

10 318 Urinalysis Checklist for Unit Commanders ..324 Fraternization and Unprofessional Relationships ..327 Hazing ..330 Personal Bankruptcy ..332 Financial Responsibility ..334 Bad Checks ..337 Adoption Expense Reimbursement and Tax Credit ..339 Civilian Jury Service by Military Members ..342 Human Immunodeficiency Virus (HIV) ..344 Anthrax Immunizations ..349 Commander -Directed Mental Health Evaluations ..352 Limited Privilege Suicide Prevention (LPSP) Program ..356 Health Insurance Portability and Accountability Act (HIPAA) ..361 Personnel Reliability Program ..367 Lautenberg Amendment ..371 Conscientious Objection to Military Service ..374 Fitness Program ..378 The Air Reserve Component (ARC) Fitness Program.