General Practice, Solo & Small Firm DivisionMagazine

 
Volume 17, Number 2
March 2000

MILITARY LAW

WHAT IS MILITARY STAFF LEGAL ASSISTANCE?

BY CARLOS O. SANTIAGO AND JENNIFER C. SANTIAGO

In the Army, lawyers are assigned to the Judge Advocate General's Corps (JAG Corps), a specialty branch of the Army. The main mission of the JAG Corps is to provide legal services to commanders, civilian staff, soldiers, family members, and retirees. Legal services in the military are provided through four main divisions: Legal Assistance, Claims, Administrative Law, and Military Justice.

Legal Assistance. The Legal Assistance Division provides legal counseling and services to soldiers, family members, and military retirees. Legal assistance attorneys advise on matters of family law, consumer law, state and federal taxes, estate planning, landlord-tenant law, and immigration and naturalization law. Young Judge Advocates (JAs) are likely to start their JAG careers in this division.

Legal assistance attorneys generally do not provide in-court representation; however, most legal problems encountered by their clients can be resolved out of court. These include divorces, consumer law problems, and information on bankruptcies. With increasing deployments of our armed forces in global military actions, providing legal assistance to those deployed overseas has become a new challenge for legal assistance attorneys. An example might be assisting with a client deployed overseas but in the middle of a divorce in Florida. Resolution might result in requesting a stay of the proceedings until the soldier returns from overseas.

Claims. Claims attorneys in the JAG Corps represent the interests of the United States in all types of claims. They provide legal advice to hospital personnel on issues such as medical malpractice, risk management, and standards of care; and they represent the government in medical malpractice claims. Claims attorneys also represent the government in affirmative claims to regain losses. While in the installation environment, claims attorneys practice law in much the same way as those litigators in the civilian sector. Both in the field and out, they travel to locations of alleged property loss and act almost as insurance adjusters, determining whether or not a claim should be paid, and its value. However, when JAs are deployed to places like Bosnia or Kosovo, part of their job is to pay local civilians for damages to their land or property as a result of the movement of troops, tanks, and equipment. Claims attorneys also determine the validity of and process claims made by soldiers when their personal property is damaged, usually in the process of moving from one duty station to another. This is a heavily paper-intensive assignment often requiring extensive investigation. Claims is a great experience for litigation attorneys who favor the civil side of the house and provides an opportunity for young JAs to exercise their litigious nature.

Administrative Law. Admini-strative law attorneys are the Army's version of corporate lawyers. They provide legal advice and services to commanders, staff officers, and civilian management officials. Areas of expertise include interpretation of Army regulations, environmental law, personnel law, labor law, fiscal law, contract law, and ethics.

The Army has a regulation to cover everything; as a result, an administrative law attorney needs to know where to find a variety of right answers. This means surfing the Internet for government publications sites as well as poring over the extensive regulatory guidance contained in every JAG library. Several regulations written by different branches of the Army will often be on point on an issue. This becomes the administrative law attorney's main job-sifting through the monumental amount of paper to determine which authority should apply to each issue. Sometimes no authority can be found in regulatory form, and "guidance" from the Departments of Defense and the Army must suffice. The opinions requested of the JAG Corps in administrative law divisions are highly political and usually involve the local community. As a result, the actions of the lawyer must be offered with the command's political interests as well as the local interests in mind, without compromising the integrity of the opinion.

Contract, environmental, and labor law are three primary areas of practice for administrative law attorneys. Each is essential to operating an installation. From grass-cutting to garbage disposal, contracts on an installation make it run. Environmental law applies to the military, and often results in huge judgments against the government. Because these fines are typically paid out of installation funds, the environmental law attorney becomes indispensable. Installation labor counselors on post handle all disputes between the government and the civilian workforce. These three types of JAs, like those in Claims, have the opportunity to litigate cases in federal and other courts.

Administrative law attorneys also provide legal advice on matters of international and operational law. This type of legal advice is key to conducting military operations in foreign countries. The operational law attorney is usually an administrative law attorney who has additional training in the area of operational law. Duties include reviewing rules of engagement, helping interpret the status of forces agreements, developing and reviewing operations plans and, frequently, being fully integrated into the battle staff. While deployed overseas, operational law attorneys are indispensable to the commanders they serve, attending every meeting or briefing the commander attends and serving as the commander's trusted advisor in all matters relating to deployment of military operations.

Military Justice. Military justice is founded on the same Constitution that governs law in the civilian sector, yet our rules, regulations, and caselaw focus on accomplishing the military mission. Our convenient "one-stop shop" of criminal law is contained in a small, softcover book called the Manual for Courts-Martial (MCM). Much like its federal law counterpart, the MCM sets out the actions that constitute crimes in the military under the Uniform Code of Military Justice (UCMJ); details how evidence is admitted under the Military Rules of Evidence; and sets the procedural aspects of trials.

Many different types of lawyers make up the military justice system, including prosecutors (trial counsel), trial defense counsel, military judges, federal judges, and supervisors. Nonlawyer commanders at all levels, however, drive the system. While trial counsel and Staff Judge Advocates make the recommendations that guide the system, commanders make the final decision concerning the level at which a case will be disposed. Prosecutors act at the behest of the highest commander in each jurisdiction, unlike in the civilian sector, where prosecutors have extensive discretion once the case is presented to them.

The military justice system can be much more fair than its civilian counterpart, because lesser actions can be taken by a commander before a soldier is officially tried at a court-martial. In the military system, soldiers are "counseled" fairly often, both for their achievements and for their misdeeds. Such counseling is usually in written form and may become the basis for the next disciplinary step in the military justice system, the Article 15. This consists of a type of punishment that typically stays in a soldier's file for two years. Any level of commander can impose an Article 15; at each level there are different maximum punishments. A soldier may choose to "turn-down" an Article 15 and proceed to a court-martial; but the majority of soldiers accept Article 15s and the imposed punishment. These range from extra duty to forfeiture of pay or reduction in rank. There are also other resolutions to military misconduct, including administrative reprimands or discharges.

A court-martial is convened when a soldier's criminal conduct rises to a level for which other forms of punishment are inadequate or in which conduct is so serious that it warrants prosecution. The military has four levels of court martial and each has maximum punishments ranging from confinement of one month to the death penalty. For three of the levels of courts-martial, a military judge presides; juries, called "panels," are the fact-finders. The panels are comprised of senior noncommissioned officers and commissioned officers, chosen by the general officer assigned to that jurisdiction.

Captain Carlos O. Santiago currently serves in the JAG Corps at Fort Polk, Louisiana, as the Installation Labor Counselor with additional duties as a Special Assistant U.S. Attorney and Operational Law attorney. Captain Jennifer C. Santiago serves in the JAG Corps at Fort Polk as the trial counsel for the 2d Armored Cavalry Regiment, the 1/509th Parachute Infantry (Airborne) and the Operations Group, Joint Readiness Training Center.

For More Information about the General Practice, Solo and Small Firm Division

  • This article is an abridged and edited version of one that originally appeared on page 53 of GP Solo & Small Firm Lawyer, October/November 1999 (16:7).
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