Military Law

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Soldier's Rights

Military rights for soldiers are usually found within military regulations. However, many soldiers are unaware of their rights when dealing with military situations and this can lead to legal questions on soldier’s rights, military rights waiver and other related issues. Below are a few commonly asked military legal questions about soldier’s rights, answered by the Experts.

What rights would a soldier have if they were forced into a position that they are not ready for? The soldier has told the command that he was not ready for the position.

Usually, this will depend on the actions of the commander. If the commander was trying to intentionally put you in a situation, knowing that you were not prepared, it is possible for you to file an Article 138, UCMJ complaint.

Article 138 is one of the most powerful rights under the Uniform Code of Military Justice (UCMJ), but it is one of the rights least known and least used by military personnel. Under Article 138 of the UCMJ, "any member of the armed forces who believes himself (or herself) wronged by his (or her) commanding officer" may request redress. If such redress is refused, a complaint may be made and a superior officer must "examine into the complaint."

Article 138 of the Uniform Code of Military Justice (UCMJ) gives every member of the Armed Forces the right to complain that he or she was wronged by his or her commanding officer. The right even extends to those subject to the UCMJ on inactive duty for training.

Matters appropriate to address under Article 138 include discretionary acts or omissions by a commander that adversely affect the member personally and are:

  • In violation of law or regulation
  • Beyond the legitimate authority of that commander
  • Arbitrary, capricious, or an abuse of discretion, or
  • Clearly unfair (e.g., selective application of standards).

Before you file an Art 138, you need to be sure that your commander wasn't just trying to determine your leadership skills by testing your ability. Usually, a commander will avoid bringing unfavorable actions against himself/herself. You should consider talking Jag before you file. They will listen to the events and help you determine if filing a complaint is necessary.

Is military personnel required to repay over payments while they were AWOL?

The military isn't required to pay you for unauthorized absences. This is probably why the military is requesting that you repay any money that you received while on UA. You should have been given an estimate of what you owe the military. If you disagree with the military, you can contest the findings. If you wish to view your records, you can request them here: http://www.archives.gov/st-louis/military-personnel/standard-form-180.html

It is possible that there was an error on your commands part and you could request that the debt be waived. Regardless of whether there has been an error, DFAS will try to collect the overpayment. You need to be able to show that there is an error in the payments and that the military was at fault. This may help you with the amount of money that is to be repaid.

What are a soldier's rights if he is forced into training with known medical issues and symptoms?

Usually, all you would have to do in a situation like this is let your commander know about your medical issues. The Battalion Commander will usually remove you from training if he/she is aware of your current medical situation. However, if you have attempted to explain your situation and are being ignored, you can file an Article 138, UCMJ complaint. Put the entire event in writing, giving full detail as to how your commander has ignored your medical needs. Once you have done this, you need to give it to any commissioned officer. The commanding General is required by law to review your case without delay.

What should a soldier do if he waives his rights to counsel while being questioned about a no contact order?

You need to avoid talking about this to anyone unless it is a TDS attorney. Usually if you tell an investigator that you wish to speak to an attorney, they will not question you further. Because an investigator generally doesn't question a person of interest until the end of their investigation, you should hear something soon, as far as any charges that may be placed against you. In the meanwhile, you need to continue your job, stay out of mischief and only speak about the incident with an attorney. You should also comply with the no contact order until you are notified to do otherwise.

What soldier's rights will a soldier have when claiming PTSD in the military?

The military will treat a soldier who has been diagnosed with Post Traumatic Stress Disorder (PTSD). The soldier will be discharged if they are unable to perform their military duties. If the PTSD is a result of activities during their service, they will usually be allowed to retire or be compensated for the disorder at the time of their separation from the military. The soldier would also be eligible for VA treatment.

Many soldiers wonder what their rights are when dealing with military regulations. There may be times when you want to know what your military rights are. If you find yourself in a difficult situation and need answers to tough military questions, you can ask an Expert for answers.
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