CONFIDENTIAL REPORTING PROGRAM FOR VICTIMS OF SEXUAL ASSAULT – from DoDD 6495.01, October 6, 2005

E3.1.6. Recognizing these DoD interests as a matter of DoD policy, Service members who are sexually assaulted will now have the following reporting options:

E3.1.6.1. Unrestricted Reporting. A Service member who is sexually assaulted and desires medical treatment, counseling, and an official investigation of his or her allegation should use existing reporting channels (e.g., chain of command, law enforcement, or report the incident to the SARC). When notified of a reported sexual assault, the SARC will immediately assign a VA. Additionally, at the victim’s discretion or request, the healthcare provider shall arrange a SAFE (see paragraph E2.1.13.) to be conducted, which may include the collection of evidence. Details regarding the incident will be limited to only those personnel who have a legitimate need to know.

E3.1.6.2. Restricted Reporting. Restricted reporting allows a sexual assault victim to confidentially disclose the details of his or her assault to specified individuals and receive medical treatment and counseling, without triggering the official investigative process. Service members who are sexually assaulted and desire restricted reporting under this policy may only report the assault to the SARC, VA, or healthcare personnela HCP. However, consistent with current policy, they may also report the assault to a chaplain. Although a report to a chaplain is not a restricted report under this policy or the provisions of this Directive, it is a communication that may be protected under the Military Rules of Evidence (MRE) or applicable statutes and regulations. The restricted reporting process does not affect any privilege recognized under the MRE. This Directive and its policy on restricted reporting is in addition to the current protections afforded privileged communications with a chaplain, and does not alter or affect those protections.

E3.1.6.2.1. Healthcare personnelHCP will initiate the appropriate care and treatment, and report the sexual assault to the SARC instead of reporting the assault to law enforcement or the command. When notified of a reported sexual assault, the SARC will immediately assign a VA. The assigned VA will provide the victim accurate information on the reporting process, including both restricted and unrestricted reporting procedures. Additionally, at the victim’s discretion or request, the healthcare providerHCP, if appropriately trained and/or supervised, shall conduct a SAFE, which may include the collection of evidence. If the healthcare provider is not appropriately trained to conduct a SAFE, the healthcare providerHCP shall help arrange for a properly-trained DoD healthcare providerHCP, if available. In the absence of a DoD healthcare providerHCP, the victim will be appropriately referred to a non-DoD healthcare providerHCP for the SAFE. When SAFE is performed at local civilian medical facilities, those facilities are bound by State and local laws, which may require reporting the sexual assault. The victim will acknowledge, in writing, his or her understanding of restricted reporting, the exceptions to, and limitations on, restricted reporting. This acknowledgement will also include the victim’s understanding that restricted reporting may limit the ability of the Government to prosecute the assailant and an understanding of the reasons DoD policy favors unrestricted reporting.

ENCLOSURE 3

E3.1.6.2.2. Restricted reporting is intended to give victims additional time and increased control over the release and management of their personal information, and to empower them to seek relevant information and support to make more informed decisions about participating in the criminal investigation. A victim who receives appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation, is more likely to develop increased trust that his or her needs are of primary concern to the command and may eventually lead the victim to decide to pursue an official investigation. Even if the victim chooses not to pursue an official investigation, this additional reporting avenue gives the senior commander a clearer picture of the sexual violence within the command, and enhances the senior commander’s ability to provide a safe environment and contributes to the well-being and mission-readiness of all of its sService members.

E3.1.7. In cases where a victim elects restricted reporting, the SARC, assigned VA (whether uniformed or civilian), and healthcare personnelHCPs may not disclose covered communications to law enforcement or command authorities, either within or outside the Department of Defense, except as provided in paragraph E3.1.8. For purposes of public safety and command responsibility, the SARC shall report information concerning sexual assault incidents, without information that could reasonably lead to personal identification of the victim or the alleged assailant, to the senior commander (see paragraph E2.1.10.) within 24 hours of the sexual assault report.

Sex Assault Court Martial Lawyer Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Army Policy, DoD Guidance, Regulations, and Memorandums

Army Court Martial Lawyer – Navy Court Martial Attorney – Air Force Military Lawyer

The Sexual Assault Prevention and Response Program reinforces the Army’s commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those who commit these crimes.

The goals of the Sexual Assault Prevention and Response Program are:

Create a climate that minimizes sexual assault incidents, which impact Army personnel, Army civilians, and family members, and, if an incident should occur, ensure that victims and subjects are treated according to Army policy.
Create a climate that encourages victims to report incidents of sexual assault without fear.
Establish sexual assault prevention training and awareness programs to educate Soldiers.
Ensure sensitive and comprehensive treatment to restore victims’ health and well-being.
Ensure leaders understand their roles and responsibilities regarding response to sexual assault victims, thoroughly investigate allegations of sexual assault, and take appropriate administrative and disciplinary action.

Marine Court Martial Lawyer
Court Martial Lawyer Sexual Assault

Court Martial Lawyer Sex Assault Defense Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Sex Assault Court Martial Lawyer – Validity of Discharge Certificate

The issue of validity of discharge certificate has been discussed in Schaefer v. Geren, 607 F. Supp. 2d 61 (D.C. 2009). The Court had to decide whether the ABCMR acted arbitrarily, capriciously, and against the law when it concluded that Schaefers first discharge was without legal effect. The Court found that the ABCMR did not act arbitrarily, capriciously, or contrary to law when it concluded that Schaefers first discharge was without legal effect as the USADPA revoked the authority to issue the discharge prior to Schaefer got the discharge certificate. Schaefer, citing Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997), argued that because he received a facially valid discharge certificate that was not revoked until after his discharge, the Army had to bear the burden of any administrative errors ‚ in this case, the error involving the computer notification system. In Vanderbush, as in this case, the Army intended to flag the Soldiers personnel file, but failed to do so.

The Schaefer court distinguished Vanderbush, observing that in that case the underlying basis of Sergeant Vanderbushs administrative discharge (received before his adjudged punitive discharge was executed) was valid; that is, he had reached his ETS date and his service obligation had ended. In contrast, the Court observed that in Schaefers case the Army (through USAPDA) revoked the authority for Schaefers first discharge well before the Fort Benning transition point issued him his discharge certificate. The Court ruled: When the underlying authority for the discharge is timely revoked, and error in delivering a discharge certificate does not effectuate a valid discharge. citing United States v. Williams.

Michael Waddington is a Court Martial Lawyer that defends Army, Air Force, Navy and Marines worldwide in court martial cases.

Fort Stewart court martial lawyer – 6th Amendment Right to counsel

In United States v. Wiechmann, 67 M.J. 456 (2009), the issue was whether SM was denied his 6th Amendment Right to counsel when the SJA did not accept one of the two detailed defense counsel. The court concluded that even though the convening authority violated of the SMs 6th Amendment Rights, it was harmless since LtCol [S] was continuously able to advise the SDC from the background. Even though the defendant does not have the right to more than one detailed counsel, the person authorized by regulations prescribed under section 827 of this title (Article 27) to detail counsel, in his sole discretion . . . may detail additional military counsel as assistant defense counsel. Article 38(b)(6) UCMJ. The convening authority may not interfere with or impede a lawyer-client relationship created between an accused and detailed defense counsel, which was established during LtCol [Ss] initial detail as SMs defense counsel. The court also faulted the convening authority for not seeking information from officials at the departmental level prior to refusing to recognize LtCol [S] as SMs counsel.

The court ultimately found that the convening authoritys action burdened LtCol [Ss] representation of his client in various respects: (1) the Article 32 proceeding was conducted without a full opportunity for LtCol [S] to prepare and participate; (2) LtCol [S] was excluded from pretrial disposition negotiations which the Government had with the SDC, the less experienced defense counsel; (3) LtCol [S] was unable to represent SM in pretrial procedural matters, including a scheduling conference or by requesting a continuance. Under the circumstances, the prosecutions actions violated Appellants right to the assistance of counsel.

In evaluating the case, the court looked for 1) structural error — an error so serious that no proof of prejudice is required — or 2) whether the error should be tested for prejudice. Finding no structural error, the court ruled that while the convening authority committed a violation of the SMs 6th Amendment Rights, it was harmless as LtCol [S] was continuously able to advise the SDC from the background.

Michael Waddington is a Fort Gordon court martial lawyer that defends military members in the Army, Air Force, Navy and Marines worldwide in court martial cases.