Do our legal provisions and processes allow Government to pronounce a uniformed service member guilty w/o trial & w/o evidence?

CPT Gurinder (Gene) Rana — Sat, 24 Nov 2018 21:07:39 -0500

The Constitution stipulates that all are innocent, until proven guilty, in a Court of Law, by the Preponderance of the Evidence. Given this legal premise, does a Court of Law include a Board of Inquiry in the Armed Forces and; does the Preponderance of the Evidence include a presumption of regularity and; is there a six-year rule under Military Law? Kindly explain the fine line in Law and in Practice; legal professionals are encouraged to reveal the truth about Law.

Response by SPC Margaret Higgins made Nov 24 at 2018 9:10 PM

SPC Margaret Higgins — Sat, 24 Nov 2018 21:10:23 -0500

Seems preposterous to me, Captain. My father was a Federal Administrative Law Judge. I don't believe that he would condone this. (I am no legal professional myself.) CPT Gurinder (Gene) Rana

Response by CPT Lawrence Cable made Nov 24 at 2018 9:36 PM

CPT Lawrence Cable — Sat, 24 Nov 2018 21:36:42 -0500

I'll start with being nit-picky. Show me a passage in the Constitution that stipulates innocent until proven guilty? While the right to a jury trial and the right not to self incriminate can be assumed to point to that principle in law, but as far as I can find, it's not in US Code, let alone in the Constitution.

Response by LTJG Richard Bruce made Nov 24 at 2018 11:07 PM

LTJG Richard Bruce — Sat, 24 Nov 2018 23:07:12 -0500

The Constitution does not state one is innocent until proven guilty. The presumption of innocence was adjudicated in a 1895 Supreme Court case. The level of damaging evidence to determine guilt varies upon the court and accusation. Military Courts of Inquiry is non-judicial. Each session is created anew within limits of the convening authority. These "courts" are just investigative. No legal judgement is given. Information gathered could be used in a court of law.

Response by CAPT Kevin B. made Nov 25 at 2018 12:51 AM

CAPT Kevin B. — Sun, 25 Nov 2018 00:51:12 -0500

Gene, it appears many things are being mushed together that shouldn't be. Criminal law requires quilt beyond reasonable doubt. The "preponderance" aspect is found in civil law which is a lower standard to meet. Innocent until proven guilty isn't in the Constitution. Closest aspect would be the 14th Amendment which talks about equal protection under the law. When it comes to administrative procedures, that's where you find much of what goes on in the military. The two prior standards don't have to be met in administrative procedures. You also don't have 5th Amendment or double jeopardy protection in the administrative arena. If a duly appointed investigator is performing a JAGMAN and you refuse to answer questions, you can be punished for not answering. If one authority issues say a reprimand and a senior authority decides to bust you a rank, that's legal (although a morale killer and demonstration that the CoC isn't wired together well).

Even Courts-Martial are not the same as criminal courts although they share several process, rules of evidence, etc. stuff. Courts-Martial was established by Congress under Article 1 of the Constitution and Federal Courts under Article 3. They operate differently. Article 3, 5th Amendment RIGHT not to self incriminate, Article 1 PRIVILEGE not to self incriminate. You see Congress felt the 5th Amendment aspect should be conveyed to military members but couldn't grant a "right" under Article 1 (why? a lawyer is needed here because I don't remember). That's the extent of my engineering legal mind as I learned some of these differences when having to do JAGMANs, sit Court-Martials, etc. The worst thing you can do is make broad sweeping statements that somehow by saying them, makes it true.

Finally, if a member believes their DD-214 that gave them a DD, nasty RE Code, or whatever, the DD-214 is an administrative document in which an administrative appeal can be made to the governing Service's board. In the Navy, it's the Board of Correction of Naval Records. The other services have a similar board. These boards only look at if the process was conducted correctly, not necessarily the end result. The boards don't substitute themselves into the judgement arena either. A typical correction that a board will approve is an improper RE code (criminal act) when the reason the member was tossed was flunking the physical fitness test. A clear error. The correction that would be made would be to change the DD to honorable or other and the RE code to the one that talks about flunking the PFT. That's an unlikely extreme example but illustrates the point.

Response by Maj John Bell made Nov 25 at 2018 12:53 AM

Maj John Bell — Sun, 25 Nov 2018 00:53:26 -0500

https://www.law.cornell.edu/uscode/text/10/1182#

https://militarylawcenter.com/practice-area/board-of-inquiry-boi/

LII / Legal Information Institute

Response by MCPO Roger Collins made Nov 25 at 2018 9:54 AM

MCPO Roger Collins — Sun, 25 Nov 2018 09:54:30 -0500

With less than six months after enlistment, I was charged with smoking in an unauthorized area. It was referred to a Summary Courts Martial. This particular legal action has the lowest bar of any. The O-4 explained he was acting as my defense, so I explained exactly what happened. He then said he was the prosecution. Shortly thereafter, I was found guilty. Didn’t affect me career wise or getting the highest security level possible, but adds fuel to your topic.

http://www.monterey.army.mil/Legal/trial_defense/summary_court_martials_fact_sheet.pdf

summary_court_martials_fact_sheet.pdf

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Response by SGM Bill Frazer made Nov 25 at 2018 10:53 AM

SGM Bill Frazer — Sun, 25 Nov 2018 10:53:38 -0500

W/o trial, w/o evidence? Just what the hell is an Art 32 then? Sir you need to expound in better than general terms. I never heard or so such in 23 years.

Response by LTC Private RallyPoint Member made Nov 26 at 2018 3:51 PM

LTC Private RallyPoint Member — Mon, 26 Nov 2018 15:51:07 -0500

"The Constitution stipulates that all are innocent, until proven guilty," It actually does not stipulate, or state that. Remember that guilty only applies to a criminal charge. And even in a criminal proceeding, the court will find you "guilty" or "not guilty". No one is ever found innocent.

"...in a Court of Law, by the Preponderance of the Evidence." Again, guilty is only in a criminal context. Using Preponderance of the Evidence as the burden of proof is for civil matters only.

"Given this legal premise, does a Court of Law include a Board of Inquiry in the Armed Forces"
No.

"and; does the Preponderance of the Evidence include a presumption of regularity and; is there a six-year rule under Military Law? Kindly explain the fine line in Law and in Practice; legal professionals are encouraged to reveal the truth about Law."
I'm going to stop right here. This is kind of a messy question, and asking anyone to explain the "fine line in Law and in Practice" is something you can teach an entire class on, and not meant for a small comment section. Also, the specific context and facts relating to your overall question were not included, which makes it hard to provide a response. (Does someone have a Board of Inquiry pending? Has it concluded? Did the person have, or was denied counsel?)

Which leads me to my final suggestion. Make an appointment with an attorney to discuss the specific issue, with all of the facts, and ask for advice. Most attorneys offer a free consultation. Good luck

Response by SrA John Monette made Nov 26 at 2018 3:55 PM

SrA John Monette — Mon, 26 Nov 2018 15:55:55 -0500

Preponderance of the Evidence doesn't apply in criminal cases. there has to be proof "beyond a reasonable doubt". the US Constitution, 7th Amendment, gives citizens the right to a speedy trial, the ability to confront their accuser(s).
if said service member was found guilty without a trial or evidence, then he should have a line of lawyers beating down his door to file appeals.