Military Law, Military Law Advice, Ask a Lawyer

Ask the Lawyer

"Ask the Lawyer" gives you the chance to ask military law experts questions about legal issues or topics. This is a general information service. Please be aware that the lawyers responding to your questions do not know all the details of your particular situation and, therefore, you should view their responses as information of a general nature and not as legal advice. This service is not a replacement for individual, particularized legal advice from a lawyer, and we encourage you to consult with a lawyer before taking any action based on the answers you receive through this feature.

Ask the Lawyer: Suing the military nearly a lost cause
A. You can sue anybody for anything. Whether you will win and get compensation for your damages is another story.
Ask the Lawyer: Don’t hire a lawyer to help with VA claims
A. No! In my experience as a disabled veteran and as an attorney, only in rare instances would you need a lawyer to help file a disability claim. And even if legal assistance is needed, many veterans...
Ask the Lawyer: Be upfront, honest in applying for security clearance
As the government expands and the need for access to sensitive information increases, security clearances have become synonymous with government employment and contract work.
Ask the Lawyer: Commander can set aside Article 15
A. Yes. Military law allows commanders to set aside an Article 15 within a reasonable amount of time after the punishment has been executed. The commander who issued the punishment has complete...
Ask the Lawyer: Fine line between careful inspection and illegal search
A. No, but this really boils down to the highly technical difference between a search and an inspection. Under Military Rule of Evidence 313, an inspection is an examination of people or property...
Ask the Lawyer: Would-be conscientious objectors must follow complex legal path
A conscientious objection is a firm, fixed and sincere objection to participation in war in any form or the bearing of arms, by reason of religious, moral or ethical training, and belief.
Ask the Lawyer: First Amendment rights have restrictions — even online
I am often asked whether service members can be prosecuted for comments about their military superiors on sites such as MySpace, Twitter or Facebook.
Ask the Lawyer: Facing disciplinary action? Be sure to weigh options
Sometimes a service member and the command are on opposite sides of an administrative action with implications for career advancement — Article 15s (nonjudicial punishment), administrative...
Ask the Lawyer: When can servicemen take paternity leave?
A. Paternity leave is new to the military — so it’s not unusual that your unit administrators have difficulty interpreting the regulations. It appears they have their facts wrong.
Ask the Lawyer: Know the discharge rankings — and their effects
Life after service should be rewarding. But after you move on from the military, your service record can still have a major impact on the opportunities you’ll get in civilian life.
Ask the Lawyer: Pretrial confinement is a legal punishment
Whenever a question about unlawful command influence crops up among service members facing court-martial, it often leads to a discussion about pretrial punishment and what types of punishment are...
Ask the Lawyer: Unlawful command influence
Q. My battalion commander has just issued a policy memo stating that any soldier under his command who commits adultery with a deployed service member’s spouse will face at least a special...
Ask the Lawyer: Think twice about going AWOL
I often receive questions from new service members about the steps they can take to get out of the military before the expiration of their initial enlistment. I also get questions from troops who...
Ask the Lawyer: Know how deployment affects custody and child support
A. Yes and no. The Servicemembers Civil Relief Act provides basic protection against default judgments and stays of court proceedings if you are unavailable to attend court because of your military...
Ask the Lawyer: How pay and benefits are divided in divorce
A. Yes, thanks to the Uniformed Services Former Spouses’ Protection Act, one of the more controversial laws affecting pay and entitlements of military retirees.
Know your federal job-preference rights
A. Not true. The Veterans’ Preference Act, the federal law that applies to your situation, gives most eligible veterans a five-point preference when applying for any federal jobs. Veterans with...
Disabled vets can get ‘fast track’ to Chapter 7
A. While bankruptcy falls outside the areas of law I practice, I reached out to Matthew E. Faler, a lawyer in Fountain Valley, Calif., for assistance. He tells me you are correct: Being a disabled...
Know military options when dealing with personal issues
Sometimes personal issues that must be addressed out of uniform call for time away from duty. Here are two examples from readers.
Take care of legal issues before deployment
Q. What are some of the key legal protections I have when I’m deployed or called to active duty?
Make extra effort to prevent child-custody confrontations
The stress of more than seven years of war has led to many military divorces — and many of these divorces involve children.
Article 32 is broader than grand jury proceeding
One of the best parts of my job is communicating with readers, who are always welcome to e-mail me with legal issues and questions. One frequent reader of this column is retired Brig. Gen. Walter...
Suing leaders could bring harsh consequences
I received questions this week about recent media reports involving active-duty service members using civilian courts to question the validity of whether Barack Obama is legally qualified to be...
When commander is wrong, you can seek help
My last column, on the Military Whistleblower Protection Act and Defense Department Directive 7050.6, dealt primarily with situations that do not involve your military commander [
Whistle-blowers protected — if they follow the rules
I often receive calls from service members who are either seeking to report misconduct by a superior or who have already reported misconduct and are suffering reprisals and want to know their legal...
Military, civilian courts can convict for same DWI offense
I’ve been getting calls and e-mails lately from service members asking about alcohol- and drug-related offenses.
USERRA can’t protect against all layoffs
It’s a tough time for our economy. Unfortunately, layoffs come hand in hand with an economic downturn. And if you’re a reserve-component member at a company looking to cut costs through...
How the court-martial process works
In the wake of recent publicity surrounding the controversial court-martial verdict for Army Staff Sgt. Alberto Martinez at Fort Bragg, N.C., who was acquitted of murdering two superiors in Iraq,...
How to appeal denial of a security clearance
I was at Kirtland Air Force Base in Albuquerque, N.M., recently when a young airman recognized me at the base exchange and asked a great question about how to handle a security clearance denial.
New rules spell out when families can take leave
It’s been nearly a year since Congress amended the Family and Medical Leave Act to provide greatly expanded rights to the families of service members, including the National Guard and reserve....
Veterans exposed to asbestos can’t sue government
Dipping into the mailbag this week for a serious and sad letter about an important health issue.
Spouses get boost to start, continue careers
All of us in uniform know that our families serve our country just as much as we do. Frequent moves can take a big toll on the spouses and children of service members. These issues can range from...
Entry-level separation offers a way out for troubled recruits
Those who have served in uniform for any length of time know that the military is a way of life — not only in terms of its many unique traditions and customs, but also in its separate standards...
How you can — and can’t — be politically active
I was at the Air Force-Navy football game when a friend pointed out a large political sign on a car in the stadium parking lot and asked me if someone in the military was allowed to do that.
Child custody issues are best settled out of court
As a member of the armed forces, you have become accustomed to moving from place to place, city to city, country to country. However, if you are a parent who is separated or divorced from your...
Less-than-honorable discharge does not have to be permanent
For nearly a decade, with the exception of when I’ve been deployed, my family has traveled to Naval Air Station Brunswick, Maine, as our official end-of-summer getaway. My wife and I, now...
Tight timelines can squeeze absentee ballots
As the election season gets into full swing, it’s important for you and your family to know your legal rights in electing a new commander in chief (a.k.a., the president of the United States of...
Civilian defense attorneys at Guantanamo are select group
When I write or talk about being a criminal defense attorney, I’m often asked whether I would defend Osama bin Laden.
Commanders’ treatment of deserters varies widely
If you think the military justice system is fair and equal from military installation to military installation, I have news for you.
Follow law precisely and it will protect your civilian job
Congress enacted the Uniformed Services Employment and Reemployment Rights Act in 1994 as a long-overdue rewrite of the Veterans’ Reemployment Rights Act.
Mediation may resolve child-custody impasse
Child custody issues can get complicated when they involve members of the military — especially when we are at war. I have seen and heard about numerous cases involving parents called to active...
Home ownership builds financial profile, but strings may be attached
The past few years have given young people a unique view of a growing and active real estate market — one that older homeowners know does not remain constant, as shown by the recent housing...
Frank, open discussions necessary before marriage
They say love conquers all.
Bringing home a bride? Start process early, tread carefully
I often get questions from troops overseas who have met the person they want to marry while on active duty abroad (including the son of one of my law partners, who is currently in Germany).
Good-hearted military people help some Afghans, Iraqis enter U.S.
Several months ago, I received a call from a friend, Lt. Col. Robert Milmore, who is assigned to U.S. Central Command.
Help is available for domestic abuse victims
If someone asked you for a definition of domestic violence, you might say it’s when one person in a romantic relationship physically abuses the partner.
The nuts and bolts of nonjudicial punishment
Nonjudicial punishment proceedings are known by different terms among the services.
Taking leave to help your service member
When President Bush signed the 2008 Defense Authorization Act on Jan. 28, one of the provisions enacted into law is a significant benefit for military families, the Servicemember Family Leave Act.
Some employees left out of USERRA
Q. I worked as a Transportation Security Administration screener but was recently fired because I took “excessive” amounts of military leave. I thought that the Uniformed Services...
What you should know before selling your home
Dipping into the mail bag this week ...
Facing serious charges? You must understand Article 32
After an evening out, a sergeant and his wife return home where their young daughter is being looked after by the 15-year old female babysitter they usually hire. As usual, the sergeant drives her...
How your disability is rated
A: Before I answer your specific questions, I want to address briefly the procedures involved in reaching the military rating.
Correcting your official record
A. Many service members have heard of the Board for Corrections of Military Records but have no clue about the important powers of the board or how to place a claim before it.
The legal fine points of home buying
Dipping into the mail bag this week:
Handling custody after a divorce
Each state has its own laws on child custody, but generally speaking, there are two forms: legal and physical. Each form of custody provides a parent with different rights, and it’s crucial...
When you marry or adopt overseas
Life in the armed forces can be very different from everyday civilian life. Beyond the obvious difference in daily routine and job duties, one finds that their life may go in a slightly different...
Is school discriminating against student soldier?
Q. My son, who is 17, recently enlisted in the Army’s “split entry” program, which required him to attend basic training after his junior year of high school. He spent the summer in...
If you don’t get federal job preference, speak up
I’ve been getting questions lately on the Veterans Employment Opportunities Act, no doubt because my fellow Military Times columnist, retired Coast Guard Command Master Chief Petty Officer Alex...
Private lawyer is best option for gay troop’s estate planning
Q I am in the military and I am gay. It is my desire to leave my estate, to include my remains, to my partner rather than to my family members. I have chosen not to have my will prepared by my unit...
Estate planning: What you need to know
Q. A military attorney prepared a basic will, health care proxy and power of attorney for me, but I’m not exactly sure what each of these documents does for me. Can you explain the purpose of...
Know the right thing to do when your drug test is wrong
It happens every morning in the military — a soldier, sailor, airman or Marine gets the call that their Social Security number came up and it’s time for a unit urinalysis.
Watch what you say: Speech limits under UCMJ
Q: I am currently on active duty and I want to get involved in politics. Can I?
How to appeal disability ratings
My last article provided some helpful hints on how to get a Veterans Affairs Department rating for injuries that occurred while you were in uniform. But what if VA did not give you the rating you...
Hiring a lawyer is strictly optional for filing VA claim
Q I just left active duty and I have some minor unresolved medical issues. I have been told to file a claim with the Veterans Affairs Department for disability compensation. Do I need a lawyer to...
USERRA offers invaluable protection for reservists
With the deployment of hundreds of thousands of National Guard and reserve members in the past few years — and with more than 81,000 mobilized today — the Uniformed Services Employment...
Returning to work after a disabling injury
One of the more common questions I’ve gotten since this column began is from reservists who have been injured in service. They want to know how their injury will affect their return to their...
Conviction is not end of military legal road
So you’ve been convicted at court-martial. What options do you have?
Ins and outs of retirement pay and divorce
If you read my last column, I have probably already answered your questions about whether your spouse, or soon-to-be former spouse, is entitled to a percentage of your military retired pay and if so,...
Law gives former spouses certain rights
The first e-mail that I received after starting this column was about the Uniformed Services Former Spouses’ Protection Act — and the e-mails have not stopped since. Those who are...
How USERRA protects National Guard technicians
Dipping into the mail bag this week:
Know the limits of USERRA law
The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other...
Discuss USERRA violations with employer before calling an attorney
Q: I work for a company that employs 23 people. I was deployed for 18 months. I feel my employer has violated USERRA. Should I hire a local attorney?
What to do when you’re read your rights
If you ever find yourself in a situation where you’ve been read your Uniform Code of Military Justice Article 31 rights — the equivalent of a civilian’s Miranda rights —...
Put affairs in order before you deploy
So you’ve received the call to deploy. You have many tasks to complete before you leave— including a number of personal legal affairs.

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