COMMANDER’S LEGAL HANDBOOK - TAG Home …

1 commander S LEGAL HANDBOOK 6/15/2012 The Judge Advocate General s LEGAL Center and School, United States Army commander s LEGAL HANDBOOK Published June 2012 The Judge Advocate General s LEGAL Center and School All Photos by: Visual Information Department, TJAGLCS This Guide is designed to assist commander s with LEGAL situations by helping them to recognize and avoid issues, or to take immediate actions necessary to preserve the situation when LEGAL issues arise. THIS PUBLICATION IS NOT MEANT TO REPLACE OR SUPERCEDE THE INDEPENDENT LEGAL ADVICE OF YOUR SERVICING JUDGE ADVOCATE. COMMENTS OR SUGGESTIONS Should be sent to: Office of the Dean The Judge Advocate General s LEGAL Center and School 600 Massie Road Charlottesville, VA 22903-1781 PHONE: 434-971-3300 E-MAIL: commander s LEGAL HANDBOOK Page i commander s LEGAL HANDBOOK TABLE OF CONTENTS PREFACE: THE commander S RESPONSIBILITY TO PRACTICE PREVENTIVE LAW THE TOP TEN SITUATIONS WHERE YOU SHOULD IMMEDIATELY CONSULT YOUR SERVICING JUDGE ADVOCATE MILITARY JUSTICE/CRIMINAL LAW 1.

2 Introduction to Military Criminal Law Misconduct: Options and Duties Of The commander 3. Unlawful Command Influence 4. 303 Preliminary Inquiry 5. Non-Judicial Punishment, Article 15, UCMJ Article 15 Script 7. Search and Seizure 8. Self-Incrimination, Confessions, and Rights Warning 9. UCMJ Punitive Articles 10. Urinalysis, Drug and Alcohol Policies 11. Fraternization and Improper Senior-Subordinate Relationships 12. Proper Responses to Reports of Sexual Assault 13. Victim -Witness Issues INVESTIGATIONS 14. Administrative Investigations/References Intro 15. AR 15-6 Investigations 16. Accident Investigations (AR 385-10) 17. Line of Duty Investigations (AR 600-8-4) 18. Fatal Training/Operational Accident Presentations to Next Of Kin (AR 600-34) 19. Financial Liability Investigations (AR 735-5) STANDARDS OF ETHICAL CONDUCT 20. Standards of Conduct 21. Commanders Coins 22. Support to Non-Federal Entities 23. Government Motor Vehicle Transportation 24. Family Readiness Groups 25.

3 Accompanying Spousal Travel 26. Annual Filing of Financial Disclosure Forms commander s LEGAL HANDBOOK Page ii ADMINISTRATIVE LAW AND PERSONNEL ACTIONS 27. Flagging Soldiers from Positive Personnel Actions 28. Enlisted Separations 29. Officer Separations 30. Bars To Reenlistment Field Initiated 31. Qualitative Service Program (QSP) 32. Removal of Enlisted Soldiers From Promotion Lists 33. Removal of Commissioned and Warrant Officers From Promotion Lists 34. Security Clearances Suspension and Revocation 35. Sexual Harassment 36. Domestic Violence Amendment to the Gun Control Act (Lautenberg Amendment) & FAP 37. Article 138 Complaints 38. Relief from Command INDIVIDUAL SOLDIER RIGHTS 39. Body Piercing & Tattoo Policy 40. Conscientious Objection 41. Behavioral Health Evaluations 42. Command Access to a Soldier s Protected Health Information (HIPAA) 43. Extremist Organizations and Activities 44. Political Activities by Members of The Armed Forces 45. Whistleblower Protection 46.

4 Service Member s Civil Relief Act (SCRA) 47. Religious Accommodation INTERNATIONAL & OPERATIONAL LAW 48. Rules of Engagement 49. Law of Armed Conflict CLAIMS AND CLIENT SERVICES 50. Article 139 Claims 51. Foreign and Deployment Claims 52. Family Support Obligations (AR 608-99) 53. Debt and Consumer Protection GOVERNMENT INFORMATION PRACTICES 54. Freedom of Information Act Program 55. Privacy Act Program FISCAL LAW 56. Fiscal Law for Commanders CONCLUSION: LEGAL REFERENCES FOR COMMANDERS Preface Part I Page 1 Preface Part I THE commander S RESPONSIBILITY TO PRACTICE PREVENTIVE LAW An ounce of prevention is worth a pound of cure. -- Benjamin Franklin 1. BE PROACTIVE, NOT JUST REACTIVE This HANDBOOK is designed to assist you in taking proper immediate action when faced with a variety of LEGAL issues that might arise during your command. The purpose of your actions should be to preserve the LEGAL situation until you can consult with your servicing Judge Advocate. However, like most aspects of your command responsibilities, you can fail if you just wait for things to come to you.

5 You need to be proactive in preventing problems before they occur. In the LEGAL arena, this means establishing and enforcing high standards, ensuring your Soldiers are fully aware of those standards and properly trained to comply with them. You must also properly train your Soldiers on all Army policies and higher level command standards so that they also understand and comply with them. Soldiers must also be well-versed in the Army Values and be able to apply those values to real-world situations, which will usually keep them well within LEGAL bounds. All Soldiers have seen issues in the news that can occur when we are not proactive about discipline and standards: Abuse of prisoners, desecration of corpses, hazing, and sexual assault to name recent examples. All of these circumstances present serious LEGAL issues. But, fundamentally, they also represent a breakdown in unit standards, training, and discipline. Your objective as a commander should be to develop solid systems and a command climate that prevents LEGAL issues, rather than just reacting to them.

6 In sum, it is every bit as important to train your Soldiers to maintain a high level of discipline and compliance with law, policy, and military standards, as it is to train them to perform your Mission Essential Task List (METL). In LEGAL circles, we call this effort to prevent LEGAL problems before they arise by properly training Soldiers, preventive law. The responsibility to practice preventive law belongs to the commander . 2. PREVENTIVE LAW While responsibility for practicing preventive law remains with the commander , your servicing Judge Advocate stands ready to assist you in meeting this responsibility. One of the most valuable services a Judge Advocate can provide to a commander is eliminating problems before they ever occur through a robust preventive law program. While preventive law is often contemplated in the context of the LEGAL assistance program, a class on avoiding unscrupulous payday lenders or auto dealers using bait and switch schemes, the concept of preventive law is central to good order and discipline as well.

7 For example, proper training and emphasis on the standards contained in a General Order #1 prior to entering a Theater of Operations can go a long way toward avoiding the types problems mentioned above. Your Judge Advocate can help you to properly emphasize these standards in a number of ways. For example, they can help you to cover how previous Soldiers have violated this directive and the administrative and punitive action that followed the offenses Preface Part I Page 2 without violating due process, privacy, or practicing undue command influence. They can also help you to analyze systems and look at weak points and behaviors in your organization that, while not violating the law now, might lead to LEGAL issues. For example, they can help you to craft policies for barracks living arrangements, curbing abuse of alcohol, and providing security while respecting privacy all of which can help to prevent sexual assaults. So, as you read and use this guide, please do not use it as an excuse to avoid your servicing Judge Advocate.

8 We hope that you will reach out to your lawyer, and that they will reach out to you, so that through your relationship with this important member of your personal staff, you can receive the advice and assistance you need to have an exceptional and rewarding command experience. Preface Part II Page 3 Preface Part II TOP TEN SITUATIONS WHEN YOU SHOULD IMMEDIATELY CONSULT WITH YOUR SERVICING JUDGE ADVOCATE 1. AFTER RECEIVING A REPORT OF ANY CRIMINAL OFFENSE Many offenses have reporting or other policy requirements, such as sexual assault, sexual harassment, hazing, etc. Your servicing JA will ensure that all of these requirements are met and then can advise you on your options to handle the report and/or the offense. 2. BEFORE APPOINTING AN INVESTIGATING OFFICER If you need to initiate a commander 's inquiry, an AR 15-6 informal or formal investigation (including EO investigations), or a line of duty or financial liability investigation of property loss, ask your servicing JA for assistance.

9 Your servicing JA can offer advice on the appropriate type of investigation as well as assist in drafting the appointment memorandum that governs the scope of the investigation. 3. BEFORE CONDUCTING ANY SEARCH (FOR EXAMPLE: DRUG TEST, BREATH TEST, BARRACKS ROOM) Your servicing JA will be able to confirm whether you have sufficient information (or probable cause) to conduct the search, thus enabling you to use the search results in follow-up administrative, non-judicial or courts-martial proceedings. 4. WHENEVER YOU ARE CONSIDERING ANY ADVERSE PERSONNEL ACTION AGAINST A SOLDIER. Your Servicing JA will help you to ensure that your action complies with all law and regulation and is feasible before you announce your intention to pursue the action. Adverse actions include, but are not limited to, flagging a soldier, administrative separation, removing the Soldier from certain status positions (such as drill sergeant), relief for cause, and issuing a memorandum of reprimand. 5. BEFORE ADMINISTERING NONJUDICIAL PUNISHMENT UNDER UCMJ ARTICLE 15.

10 Your Servicing JA will help you to ensure that your action complies with the UCMJ and can be supported at Court-martial if the Article 15 is declined. 6. AFTER RECEIVING A FAMILY SUPPORT OR DEBT COLLECTION COMPLAINT Your servicing JA can identify what type of support is required, identify if an exception exists, identify if "payment in kind" is appropriate, and assist in doing "the math" when formulas must be used in the event of multiple dependent children located in various households. Additionally, they can confirm that the letter you must draft within fourteen days meets the requirements of AR 608-99. Similarly, Soldiers are expected to pay their debts to creditors, but only creditors are entitled to assistance from the Command, debt collectors are not. Your servicing JA can help you to determine the status of the entity requesting your assistance and what your proper options are as a commander . Preface Part II Page 4 7. BEFORE APPROVING ANY FUNDRAISING ACTIVITY Fundraising approval authority is subject to state law and current installation policy.