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UCMJ & Court Marshal ? Active Duty E5 11 years time in service - Options to fight ?

Atlanta, GA |

In August 2012 , husband was arrested off post for having drug paraphernalia in car . The paraphernalia was not his , belonged to another occupant who dropped it on the floor . Everyone in the car went to jail . My husband was given probation and ordered to do community service - completed before spec'ing . A flag was placed on his OPIUM file during the probation , but was not removed before he PCs ( although he completed probation ) . He got to his new unit , the flag was discovered - which led to some investigation . Commander found out , she flagged him again . She told him that his unit never removed the flag once he PCs . Now a random Breathalyzer - he blew a . 0010 . He wants to fight the earthly . - claiming he is being targeted because of the arrest . What are his options ? Thanks !

Attorney Answers 6

Posted

Yes there was likely an error in how the flag was handled. Especially because it appears he was able to PCS in the face of a (likely) non-transferable flag.
Also, it does appear she had no basis to flag him, so there may be a "complaint," there and that may have some impact on the other issues.
It will depend on how they intend to take disciplinary action what his rights are.
It's not clear what his breathalyzer level is?
It will depend on which equipment they used. I have had some success suppressing results of a breath test. But it can be hard to do.
I would be happy to talk to your husband for a free consultation. He can call anytime tomorrow, or email me.

www.court-martial.com; www.court-martial.us.com; mljucmj@gmail.com 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.

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5 comments

Asker

Posted

Thank you- she says that the flag was a culmination of the other events (two alcohol related incidents, one of which was 8 years prior). The breathalyzer, Im told- read a .00010.. and there were a few others who were tested the same day with the same results. My husband is in a ASAP program (self referral) and random urinalysis' are required for retainment in the army. Can you provide me with your email address? Thank you again.

William A. Jones Jr.

William A. Jones Jr.

Posted

Thank you counsellor for helping here; why outside my expertise.

Donald George Rehkopf

Donald George Rehkopf

Posted

The bottom line her is that your husband needs to have an experienced military defense attorney and have one as soon as possible. Yes I know that there are "legal fees," but with 11 year of service on the line, consider it an investment in protecting his retirement.

William Emil Cassara

William Emil Cassara

Posted

Agree with Mr. Cave and Mr. Rehkopf. He needs an experienced military attorney.

Philip Douglas Cave

Philip Douglas Cave

Posted

mljucmj@court-martial.com www.court-martial.com Flagging for NEW misconduct might be OK, but not for old. Your additional information about his current status is helpful.

Posted

I'm going to edit the Practice Area of your question to "Military Law" where it is more likely to come to the attention of attorneys who will fully understand what you have set forth in your question and have some useful advice. Good luck.

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Posted

Yes there was likely an error in how the flag was handled. Especially because it appears he was able to PCS in the face of a (likely) non-transferable flag.
Also, it does appear she had no basis to flag him, so there may be a "complaint," there and that may have some impact on the other issues.
It will depend on how they intend to take disciplinary action what his rights are.
It's not clear what his breathalyzer level is?
It will depend on which equipment they used. I have had some success suppressing results of a breath test. But it can be hard to do.
I would be happy to talk to your husband for a free consultation. He can call anytime tomorrow, or email me.

www.court-martial.com; www.court-martial.us.com; mljucmj@gmail.com 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.

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Posted

AR 600-8-2 governs the flag. Flags are not to be used as a punishment.
The way that I understand the non-transferable flag is that he could not PCS until the flag is lifted. The flag had to be lifted once actions are complete... The new flag probably was improper. Dont know why there would have been a second investigation...are you sure flag was not for the breathalyzer.

He can go to the IG about the flags or talk with chain of command... Maybe you want to startlooking for attorneys but if an investigation is ongoing there may not be much to do until the investigation is complete

This is for general information only. Nothing in this information should be construed as creating an attorney-client relationship nor shall any of this information be construed as providing legal advice. Laws change over time and differ from state to state. These answers are based on California Law.Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney about your particular situation. No attorney-client relationship is established.

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1 comment

Asker

Posted

My understanding is that the flag was for prior events (two alcohol related incidents, one of which happened in 2004). When i say investigation, the issue is going before UCMJ proceedings.

Posted

Commanders are notorious for taking any opportunity to bust a guy once there is the hint of trouble. I'm sure you know that being around the military for so long.

DUIs are generally handled through Art 15, but not always. Your husband has got to start building his defense as soon as possible. It is possible to recover and stay in after a DUI, but with all the drawdowns, you've got to fight hard.

I am more than happy to discuss at your convenience. Give me a call tonight or anytime tomorrow and we can talk more.

Best of luck.
Andy

Andrew Cherkasky of Cherkasky Law, LLC is an Illinois attorney focused on military & criminal defense. The advice given does not form an attorney-client relationship. The advice above is intended to educate on general legal principles and theories and should not be considered state specific advice. Please call anytime, day or night, to discuss further, 703-314-6475.

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Posted

You should take advantage of a free consultation with a military attorney to discuss the timeline of events, what is the likely course of action by the command, and how to defend against each possible course of action. From your comments it seems likely the command is either going to try to chapter him out, or courts-martial him if the command really wants a punitive discharge. Read my profile on Avvo, and call or email when you are ready to talk.

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