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Criminal Charges and Military Service: The Undesirable Effects of a Criminal Charge on Ones Military Service
By: William Rogers, Attorney at Law and Helen Kim
Airman First Class Roelofs had three years and nine months of active military service. During his military service, Roelofs was charged with possessing three grams of heroin with intent to distribute and prosecuted by civilian authorities, rather than by the military. He was sentenced to confinement for eighteen months and placed on probation for three years. Subsequent to his conviction, the Air Force discharged Roelofs from military service based on the conviction in civilian court. Roelofs unsuccessfully challenged the militarys authority to administratively discharge him based solely on the civilian conviction. (Roelofs v. Secretary of the Air Force, (D.C. Cir. 1980) 628 F.2d 594, 595.)
Military Administrative Discharge for Criminal Charges
An administrative discharge is a military personnel action, which is the rough equivalent of being fired from a civilian job. A service members time in service, rank, and the characterization (type) of discharge the military wants to impose determines whether the service member will simply be given written notification of the militarys intent to discharge (papered out or chaptered out) or given the opportunity to appear before an administrative discharge board. In either case, the servicemember has certain due process rights that are specific to the administrative discharge process.
Every branch of the military has its own service-specific discharge regulations, although the regulations have many similarities. For example, in the Air Force, under Air Force Instruction (AFI) 36-3208, an airman convicted by civilian authorities of certain types of offenses may be involuntarily separated from the military, with an honorable, general under honorable, or under other than honorable conditions discharge. These different characterizations of the service members term of service have significance pertaining to the entitlement of Veteran’s benifits, ability to reenlist, or the recoupment of any special pay or allowances received by the service member, including Montgomery GI Bill educational benefits.
Although a service member can be given an Under Other Than Honorable Conditions discharge at the end the administrative separation process, he cannot be discharged dishonorably, which is one of two types of punitive discharges that can only result from a conviction at court-martial a military trial, with the other being a bad-conduct discharge.
Effects of Receiving a Less than Honorable Discharge
Regardless of whether a discharge results from an administrative separation or a court-martial, anything less than honorable is viewed as derogatory and inevitably stigmatizes the recipient. A less-than-honorable discharge results in loss of numerous benefits in both the federal and state systems and limits opportunities for both public and private employment: almost all employment and job application forms require a statement as to military service and the type of discharge received. (Bland v Connally, (D.C. Cir. 1961) 293 F.2d 852, 858.)
In Davis v. United States of America, Davis had over 2 years of active military service. Due to a chronic arthritic condition, which he allegedly incurred during active military service, Davis was awaiting medical discharge. Under such assertions, Davis was eligible for disability compensation. While awaiting medical discharge, Davis was arrested for automobile theft and ultimately convicted of a felony for which he received a two-year sentence. Although Davis was on official leave status at the time of his arrest, he was involuntarily discharged from the Air Force because of his felony charge. (Davis, (5th Cir. 1971) 431 F.2d 409.) Accordingly, the Veterans Administration denied his disability compensation claim pursuant to Title 38, U.S.C.A. 101(2) because he was, discharged or released under conditions other than dishonorable.
The Court in Roelofs recognized that a less-than-honorable discharge stigmatizes an individual. Furthermore, the Court opined that an undesirable discharge is over and above the stigma of a felony because it indicates that the serviceman did not perform adequately on the job. Thus, an undesirable discharge is warranted only if it results in deficiency in performance of military duties or has a direct impact upon the military. Nonetheless, the military may discharge a serviceman other than honorably without showing that the offense was service-related. That means that the military may look into the individuals actions and records outside of the military service if his conduct impacts the overall effectiveness of the military, whether directly or indirectly.
Military Protection from Civil and Administrative Legal Actions
Service members have some protections from civil and administrative legal actions taken against them while in military service pursuant to the Service members Civil Relief Act (SCRA), Public Law 108-189, codified in the United States Code at 50 U.S.C. App. 501-596. The SCRA completely supersedes the Soldiers and Sailors Civil Relief Act (SSCRA) of 1940. In Mayfair Sales, Inc. v. Sams, Sams attempted to invoke the SSCRA in order to stay, or postpone a proceeding in which he was a defendant in a civil case. (Mayfair Sales, Inc. v. Sams, (1st Cir. 1964) 169 So. 2d 150). At the time, the Act provided that:
At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant be stayed as provided in this Act unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service. (50 U.S.C.A. App. 521.)
Pursuant to the Act, the Court in Mayfair held that Sams was not entitled to a stay of proceeding simply because he was in the military, and must show that his military service materially affected his ability to appear and defend his interests. The SCRA broadens the SSCRAs limited application from only civil matters to civil and administrative matters (e.g., child support or paternity determination).
Some courts have adopted similar provisions for defendants in pending criminal cases but these provisions are very state-specific For example, the 44-97.1 of the Code of Virginia provides:
Any party to or attorney in an action or proceeding in any courtwho has been ordered to participate in annual active duty for training or temporary active duty in the reserve forces of any of the armed services of the United States, National Guard, or naval militia shall be entitled to a continuance, not to exceed three weeks, as a matter of right during the period of such duty, provided the continuance is requested at least four days prior to the first day for which the continuance is sought.
It is critical to ensure that the laws of the state in which the stay is sought have been researched and applied as required by each state.
Conclusion
The military has an overall interest, in terms of morale and efficiency, in insisting on a corps of servicemen who abstain from serious criminal activity. (Roelofs v. Secretary of the Air Force, (D.C. Cir. 1980) 628 F.2d 594, 598.) A criminal charge will not only create obstacles for individuals to become members and serve in the military, but a criminal record may also cause members of the military to be involuntarily and less-than-honorably discharged, which could lead to harsh social, economic, and psychological stigma normally associated with a felony conviction in a civilian court.
