The Newsletter of the Military Law Task Force of On Watch the National Lawyers Guild Volume XX, Number 4 Summer 2009 INSIDE Administrative Separation / Discharge Board Tactics U.S. War resisters BY B RIDGET W ILSON in Canada Third of Four Parts Page 2 Military administrative/separation re- view boards (“ADB”) are often a bit of This is the third part of a series on involuntary dis- Book Review: The a free-for-all, with the recorder charge proceedings. Part one, in the September/ War Comes Home throwing mud at your client, and you October 2007 issue of On Watch , discussed slinging back mud to discredit wit- “notification procedure” discharges, examining the Page 3 nesses and challenge dubious criteria and procedures for personality disorder “evidence.” They are also a place in discharge and other administrative discharges that NLG Convention which you can make a record. Know could result in no less than a characterization of MLTF CLE, Workshop the regulations, know the facts and honorable, general or entry level. The second article, Pages 4-5 you will get a better result for your in the January/February 2008 issue, reviewed the client. range of “administrative discharge board proce- Remembering dure” discharges, most of which could lead to other Doris Walker You must be aware of the service than honorable (OTH) characterization. Part two regulations and the service “culture” also gave an overview of procedural rights in these Page 9 when appearing before ADB. The discharges, and a discussion of evidence in non- services’ regulations are similar but adversarial proceedings, where the rules of evidence COMING NEXT ISSUE may vary in important details. Each do not apply. Don't Ask Don't Tell service has tailored their implement- Update ing regulations to meet the service’s This article offers a very practical guide to represen- needs, philosophy or culture. tation in administrative discharge board hearings You must know the regulations cold. themselves, useful for counselors who wish to engage Review the script or “gouge” [in Na- in advocacy, as well as attorneys. A fourth article (careful readers will remember that this began as a Submissions, comments or val language] that the service uses two-part series) will discuss motions in administrative questions should be sent for boards. The members will follow discharge board hearings and post-hearing review. to: [email protected] the script to the letter in most cases. As a basic approach to ADB, you Procedures for these discharges are set out in De- On Watch Editors must convince the board members partment of Defense Instruction 1332.14, and in Kathleen Gilberd that they can follow the regulations implementing regulations for each branch of the Jeff Lake and give your client the desired re- service: Army Regulation (AR) 635-200; Air Force sult. The board members will be in- Editorial Coordinators: dividuals who have dedicated their Instruction (AFI) 36-3208; Marine Corps Separation Jeff Lake lives to following regulations and and Retirement Manual (MARCORSEPMAN) Chap- ter 6; and Naval Military Personnel Manual Kathleen Gilberd military discipline. It will be a rare (MILPERSMAN) 1910-400 et seq. Secretary of the occasion in which they defy that Navy Instruction 1910.4B is controlling for the Navy Production Editor mandate. Rena Guay and the Marine Corps, but is not routinely used in discharge proceedings. - Continued on page 6 Military Law Task Force Summer 2009 - Page 2 On Watch U.S. war resisters in Canada – their struggle BY G ERRY C ONDON continues AWOL Iraq War resisters have been arriving in Can- ada at least since January 2004, when Army Pvt. Jeremy Hinzman became the first U.S. war resister to apply for po- Another Army deserter, Cliff Cornell, was forced litical refugee status in Canada. Unlike during the Vietnam back into the U.S. in February. He voluntarily turned War, when tens of thousands of draft resisters and desert- himself into Fort Stewart, Georgia, where he was ers moved to Canada, it is no longer possible to quickly and given a General Court Martial, convicted of deser- easily immigrate. The legal avenue for Iraq War resisters tion “with intent to avoid hazardous duty,” and sen- claiming sanctuary in Canada has been to apply for refugee tenced to 12 months in prison and a Bad Conduct status. Approximately 60 AWOL GI’s have done so. An- Discharge. Cornell has begun serving his sentence at other 250 are estimated to be “under the radar” in Canada. the Marine brig in Camp Lejeune, North Carolina. Canada’s refugee system is overseen by political appointees By applying for refugee status, war resisters gain who tend to be skeptical of refugee claims. Refugees who temporary sanctuary in Canada actually face torture, rape and murder if returned to their Canada’s refugee system has served war resisters to this home countries are often denied sanctuary in Canada. The extent: the very act of applying for refugee status provides Immigration and Refugee Board is reluctant to add another war resisters with temporary legal status in Canada. They category of refugee, and has not yet granted this status to a can live and work legally in Canada as long as that claim is single Iraq War resister. being heard – for at least a year and probably several years. Some U.S. war resisters have successfully immigrated via The Immigration and Refugee Board has also refused to al- marriage to their Canadian girlfriends. Others are seeking low U.S. war resisters to present evidence of the illegality of to remain in Canada for “humanitarian and compassionate” the war, saying that is irrelevant. But this is hardly the case. reasons. The U.N. Refugee Handbook clearly states that “Soldiers who refuse to fight in wars that are widely condemned by A federal judge in Canada ordered the Refugee Board to the international community as contrary to standards of hu- give a second hearing to Joshua Key, an Iraq veteran who man conduct should be considered as refugees.” has written a book, A Deserter’s Tale, about the many home invasions by the U.S. Army that he witnessed in Baghdad. Several Iraq War resisters have already been forced back The judge said these home invasions were clear violations into the U.S., through deportation and threats of deporta- of the Geneva Conventions against the abuse of civilian tion. Robin Long was apprehended in British Columbia last populations, and should not have been dismissed so lightly July and physically abused in several Canadian prisons be- by the refugee board. A decision in this case is pending. fore being roughly handed over to U.S. border police with the words, “Here – we’ve got a damn deserter for you.” If Joshua Key or another Iraq War resister were to be Long, who was AWOL from the U.S. Army, was court- granted refugee status, it would be a real breakthrough. But martialed at Fort Carson, Colorado, convicted of desertion, the refugee route, along with Federal Court appeals, is a and sentenced to 15 months in prison and a Dishonorable difficult, case-by-case process that is long and expensive. Discharge. He recently finished serving his sentence and was released from the Miramar Consolidated Brig near San Diego. - Continued on page 7 Military Law On Watch Summer 2009 - Page 3 Task Force The War Comes Home: Washington's Battle Against America's Veterans REVIEWED BY E RNESTO E STRADA been able to step- up and help ser- Although not a veteran of the U.S. military, Aaron Glantz is vice members and nevertheless a veteran of the war in Iraq. As an unembed- veterans in crisis. ded journalist, Glantz has been to Iraq three times, docu- Even so, as Glantz menting the difficult lives of ordinary Iraqis in the hyper- points out, “The violent neighborhoods of Iraq’s cities, including Baghdad, families of Ameri- Fallujah, Najaf and others. He has since written extensively can soldiers in- on the often tragic stories of American veterans and the jured in the line of difficulties they face when they come home. In his latest duty should not book, The War Comes Home: Washington's Battle Against have to go, hat in America's Veterans, Glantz holds nothing back, stating, hand, looking for “Members of Congress and bureaucrats at the Pentagon charity. A veteran… By Aaron Glantz and the Department of Veterans Affairs may not be attack- should not have to Berkeley: University of California ing vets with mortars and IEDs, but they are literally killing depend on the kind- Press, 2008. them with indifference.” Based on interviews with Iraq and ness of strangers, but Afghanistan veterans, veterans of prior eras prominent in should be cared for as a matter of course. A father… the veterans’ service community, congressional hearings, should not have to sacrifice his income and health and in- reports from the Department of Veterans Affairs, Pentagon, surance to care for a son wounded in war. This is the very and the Government Accountability Office (GAO), and the definition of the job of government.” Yet this is exactly reporting of other outstanding journalists, Glantz substanti- what many veterans and their families endure. ates the claims of indifference and apathy these institutions The War Comes Home goes on to highlight the history of the and people often convey, while claiming to “Support the plight of veterans. In particular, the author cites numerous Troops.” warnings, well in advance of the invasion of Iraq, about the Breaking the topic up into several parts, Glantz covers the need to increase the number of veteran’s programs and myriad of difficulties many veterans have to deal with: Post resources in order to properly care for the newest group Traumatic Stress Disorder, Traumatic Brain Injury, unneces- of combat veterans, as well as care for the aging population sary delays or outright denial of earned benefits such as VA of veterans from previous wars.