VETERANS & MILITARY LAW & POLICY eJOURNAL
"Keeping in Step With 'Swift Discipline': Why Some Cases Should be Disposed of By Discharge Instead of Court-Martial"
RACHEL BARR, St. Mary’s University School of Law
This paper proposes that certain low-level offenses committed by military members would be better disposed of by administrative discharge proceedings rather than court-martial proceedings. I address the costs associated with prosecuting a case versus processing an administrative discharge, the timelines associated with these actions, and other considerations. The idea behind this proposition is to bring to light the unique needs of the military mission, and that above all, military JAGs and Commanders must ensure good order and discipline is maintained. Ultimately, it is more cost and time effective to quickly remove a member from the military via a discharge when low-level offenses are committed versus keeping them in the service while pending court-martial charges. Low-level offenses in this context include specifically drug use and possession offenses, and other non-violent, non-sexual misconduct offenses that are likely viewed as petty misdemeanors or other trivial misdemeanors.
"Addressing Sexual Misconduct in the United States Military: An Organizational Approach"
Temple Law Review, Vol. 94, No. 2, 2022
LAURA T. KESSLER, University of Utah - S.J. Quinney College of Law
SAGEN GEARHART, J.D., University of Utah
Sexual assault and harassment are ongoing problems in the military. This Article, co-authored by an expert on workplace sex discrimination and a former military officer, examines this problem from an organizational perspective. Social science research finds that organizational climate and composition strongly predict the occurrence of sexual harassment. A positive organizational climate decreases the prevalence of sexual harassment, reduces retaliation against those who report it, and lessens its job-related and psychological impacts. In contrast, organizations that tolerate sexual harassment are associated with greater levels of harassment and worse outcomes for victims. Workplaces where men significantly outnumber women are also associated with increased rates of sexual harassment.
Building on this social science research, we propose a set of legal and policy reforms designed to improve the representation of women in the military and reduce its hypermasculine culture. These reforms include establishing diversity goals and targets, instituting gender-neutral physical fitness standards, and ending male-only draft registration. As our analysis demonstrates, these organizational reforms are both permitted and mandated by constitutional law.
"The Doctor Will Judge You Now"
University of Cincinnati Law Review, Vol. 89, No. 4, 2021
BLAIR THOMPSON, Maurice A. Deane School of Law
Disability adjudicators within the U.S. Department of Veterans Affairs often adopt the medical opinions of the agency’s medical examiners as legal reasoning. While Courts and scholars have compared the role of the medical examiner in the adjudication of a veteran’s claim to that of an expert witness, this Article posits that the role of the medical examiner is more accurately described as that of the judge. This Article argues that this arrangement of roles violates veterans’ right to due process in the adjudication of their disability claims.
Scholars have noted that Congress and Courts have been reluctant to apply procedural due process protections to veterans’ disability claims out of a desire to maintain an ostensibly veteran-friendly and nonadversarial adjudication system. This Article points to another reason for that reluctance, which is the assumption that the adjudication of veterans’ disability claims turns on simple questions of medical evidence, which by its very nature is inherently free from bias or error from which procedural due process would protect. By explaining the various factual and legal analyses involved in the adjudication of veterans’ disability claims, and by applying the due process analyses outlined by the U.S. Supreme Court in Goldberg v. Kelly, Richardson v. Perales, and Mathews v. Eldridge, this Article demonstrates how additional procedure is constitutionally warranted to protect veterans with disabilities from the erroneous deprivation of their benefits.
Additional procedure is especially warranted to protect against the erroneous deprivation of veterans' benefits since the U.S. Department of Veterans Affairs decided in the fall of 2020 that it will no longer use VA employees to conduct disability exams, but will outsource all veterans' disability exams to private contractors.
"Review of Recent Veterans Law Decisions of the Federal Circuit 2020 edition"
American University Law Review, Vol. 70, No. 4, 2021
ANGELA DRAKE, affiliation not provided to SSRN
YELENA DUTERTE, University of Illinois at Chicago - UIC John Marshall Law School
STACEY-RAE SIMCOX, Stetson University - College of Law
This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of VA’s duty to sympathetically read claims. The Federal Circuit also issued important decisions regarding “effective dates” impacting the amount of money veterans can receive where claims linger for years in the adjudicative process. Finally, the court confirmed the validity of VA’s definition of willful and persistent misconduct.
"How Transgender and Non-Binary People are Ignored in the Male-Only Military Draft Debate"
MICHAEL CONKLIN, Angelo State University - Business Law
The constitutionality of an all-male military draft is currently being litigated in National Coalition for Men v. Selective Service System. Unfortunately, the effect this issue will have on transgender and non-binary people is largely being ignored. This essay considers how current Selective Service standards are not only psychologically harmful to transgender and non-binary people but also how they negatively affect their ability to receive college financial aid, federal jobs, and job training.
"A Constitutional Balancing Act: Courts-martial as an Exercise in Diplomacy"
Columbia Journal of Transnational Law, Vol. 60
ALEXIS ARCHER, Columbia Journal of Transnational Law
In 1957, Supreme Court Justice Hugo Black observed that, “[t]raditionally, military justice has been a rough form of justice.” Extraterritorial military jurisdiction charges defendants under the Uniform Code of Military Justice (“UCMJ”) and prosecutes through courts-martial. It also abrogates presumed fair trial guarantees and can impede fairness to the defendant. This Note explores the legal ambiguity surrounding United States (“U.S.”) government presence in foreign countries—a presence which includes active-duty service members, dependents, contractors, and former military. By exploring a recent case in which the defendant, a retired Marine, committed an overseas crime with no military nexus or “service connection,” and was subsequently court-martialed, it becomes clear that retirees fall into a jurisdictional gray area. This Note asserts that military jurisdiction should be narrow—not used as a tool to foster foreign-relations and American expansionism. The question here is whether the policy and diplomatic considerations are significant enough to justify the tradeoffs of encroaching on the constitutional protections afforded by civilian federal criminal justice.
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