Collateral Legal Issues And the Military Client, 0517 ALBJ, 78 The Alabama Lawyer 209 (2017)
| Author | Barr D. Younker, Jr. |
| Position | Vol. 78 3 Pg. 209 |
Barr D. Younker, Jr.
Introduction
A defendant’s right to “effective assistance of counsel” guaranteed under the Sixth Amendment to the U.S. Constitution has historically been interpreted by the U.S. Supreme Court to encompass only those matters directly related to a criminal prosecution at hand. However, with recent decisions, the U.S. Supreme Court has extended the “reach” of the right to include the competency of advice related to a limitless scope of matters “collateral” to the adjudication of guilt.
Alabama has a significant number of military members stationed within its borders. From time to time, these service men and women will have a need to engage the services of an Alabama attorney. As there are many areas where military collateral issues might arise out of the Alabama court process, it is imperative that Alabama attorneys have a working knowledge of military punishment and discharge processes in order that they may stay clear of ineffective assistance of counsel problems. This paper explains the relationship of those military processes and civilian legal processes.
Military Bases In Alabama
Several counties in Alabama are home to military installations and units. The Air Force has Maxwell-Gunter AFB in Montgomery and the Army has Anniston Army Depot in Calhoun, Redstone Arsenal in Madison and Fort Rucker in Dale. The total military population in the state numbers about 12,000 active duty members, with another 22,000 members in the Reserve and National Guard.1 In addition, Ft. Benning, Georgia, which gained approximately 4,800 military members in the past few years,2 borders Alabama, with many of its assigned members living in Lee, Russell and Barbour counties in Alabama. Also, both Maxwell-Gunter AFB and Ft. Benning conduct education and training for thousands of transient students each year, which dramatically increases the numbers of military members in Alabama at certain times.
With so many military personnel living in the state, Alabama attorneys practicing near military installations can expect to see the occasional military client who needs help with a “criminal law matter.” While the issues that the Alabama attorney will see from these clients will be handled much the same as they would be for civilian clients, it is important to know that there are “collateral” issues and effects that may be in play for the military members involved in civilian criminal actions.
Why should the Alabama attorney be concerned with collateral military issues? The answer is simple. In 2010, the U.S. Supreme Court expanded the reach of ineffective assistance of counsel claims with a decision in Padilla v. Kentucky.3 In that case, a lawful permanent resident pled guilty to drug distribution charges in Kentucky. While counsel’s performance with regard to the adjudication of guilt phase of the case or with regard to advice to his client regarding the direct consequence of a guilty plea were not faulted, the Supreme Court found that counsel’s failure to properly inform the defendant of the “collateral” consequences of a conviction qualified as ineffective assistance of counsel. In particular, the Court found that counsel should have properly informed his client that a conviction carried with it a risk of deportation by the Immigration and Naturalization Service.
Obviously, Padilla did not involve a military member. However, it did involve someone who faced an adverse “collateral” action because of the legal path chosen in a civilian court. Will failure to advise a military client of the impact of a guilty plea or other legal position on that person’s military status be the next area to be encompassed under the realm of ineffective assistance of counsel?
This article will examine a few of the more common collateral issues that may arise for the military client when he or she is involved in civilian legal matters.
Adverse Military Actions In General A military member’s lowest-level commander is, by law and regulation, generally the focal point for all adverse actions taken against a service member. Military members will always have more than one commander, but it is the commander of that lowest level who nearly always starts an adverse action.[4] That person is always a commissioned officer who generally holds the grade of captain, major or lieutenant colonel and who is, in nearly all cases, the “commander” of a formally-named military unit (e.g., B Company, 42nd Services Squadron).
It is fairly common knowledge that military members are governed by the Uniform Code of Military Justice (UCMJ).[5]This is the criminal code for military members. Military members committing military-unique crimes (e.g. insubordination, absence without leave) or other crimes covered by the UCMJ can generally expect to be prosecuted under the UCMJ in a court-martial (trial) or under Article 15 of the UCMJ (the so-called...
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