Last time I wrote, I mentioned two administrative actions that were worrying me.  What I didn’t do, though, is explain how those actions work or what Trial Defense attorneys can do for Soldiers dealing with them.  Today I’ll start a series of TDS 101 articles, describing what the Trial Defense Service is, what we do, where we came from, and why we’re the premier public defender organization in the United States.   First, admin actions.

Much of any work week for a TDS attorney is spent dealing with administrative actions: non-judicial punishment (commonly referred to as Article 15s ) and administrative separations (or Chapters).  These are tools available to commanders to handle minor misconduct by Soldiers and to remove Soldiers from the Army. 

In the movies, Article 15s are typically an semi-formal affair that includes a commander yelling at the Soldier (“…I can’t see how you thought it would be a good idea to borrow that Humvee for your bachelor party…!”) and ends with the commander ripping the stripes off the Soldier’s uniform.  In reality, it rarely goes that way.  Though there is no requirement as to how formal the setting is for an Article 15, most commanders – and certainly most Soldiers – consider them a big deal.  Any conduct that violates the Uniform Code of Military Justice can be the basis of an Article 15, but this process is generally reserved for minor infractions (fights, AWOL, disrespect, etc.).  Punishments include reductions in rank (though not the rip-off-the-uniform kind), temporary forfeitures of pay, extra duty (after work clean up usually), and restriction to the barracks.  But just because this is a non-judicial/administrative action, the Army has recognized that a Soldier’s rights and entitlements are implicated, so they get an opportunity to consult with an attorney before confronting the commander.  A TDS attorney will talk to them about the alleged misconduct, discuss ways to present the relevant circumstances to the commander, and talk about defenses, extenuation, and mitigation.  We also ensure commanders follow procedural requirements and that evidence used against a Soldier was legally obtained (ex. a statement taken from a Soldier must be preceded by a Miranda-type rights advisement).

Administrative separation is another tool commanders can use to separate a Soldier from the service instead of just punishing them.  There are many reasons a Soldier can be ‘chaptered,’ but the most common are for misconduct (either a pattern of minor misconduct or a single incident of serious misconduct), failure to meet height/weight standards, or due to personal hardship.  Every Soldier facing a Chapter is entitled to consult with a TDS attorney, and those with more than 6 years of service are entitled to have the proposed separation reviewed by a board of officers/senior enlisted Soldiers.  This right to a board is critical because the Chapter process can also determine the ‘characterization’ of a Soldier’s discharge.  There are three options for characterization: Honorable, General (Under Honorable Conditions), and Other Than Honorable.  The type of characterization effects the number and type of veterans’ benefits a Soldier will be entitled.  Soldiers with an Honorable characterization are generally entitled to all benefits; those with an Other Than Honorable separation are generally entitled to none.  In between is the General (Under Honorable Conditions) separation; with this, Soldiers remain eligible for most of their benefits (veterans’ employment preferences, etc.) but lose two critical ones: medical and education benefits.  With this in mind, meeting with a TDS attorney can be a very important part of the process, ensuring that Soldiers understand the implications of what is happening and creating a plan to deal with it (talking about how to prepare for the transition to civilian life, drafting a personal appeal to the commander, or preparing for a separation board).

As I said, this is part of the routine work of a TDS attorney.  My office handles 40-60 (or more) Article 15s and Chapters per week.  We do this while preparing for courts-martial and other trial-related requirements (confinement review hearings, Article 32 hearings, post-trial clemency requests, etc.).  It makes for a busy week, but few things are as satisfying as having a Soldier look you in the eye and say thanks.