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« Video: Marine hit by IED before Haditha incident speaks | Main | Grim... »

May 31, 2006

Military Justice - A Brief Primer

By Greyhawk

Exapanding from a shorter entry at MilBlogs - an effort to explain what goes on during a military investigation.

A recent high-profile news story reveals that in spite of the popularity of the television program "JAG" and the movie "A Few Good Men", most Americans have little understanding of the military justice system. In the interest of providing the tip of the iceberg of knowledge, here's a brief primer.

Key documents defining the military justice system include the United States Constitution, the Uniform Code of Military Justice (UCMJ), and the Manual for Courts Martial. If a crime has been committed (or suspected), an investigation is conducted under article 32 of the UCMJ. The purpose of that investigation - which normally concludes with a hearing, somewhat equivalent to a civilian grand jury investigation - is to determine the need for a court-martial (a military trial).

The Fifth Amendment constitutional right to grand jury indictment is expressly inapplicable to the Armed Forces. In its absence, Article 32 of the Uniform Code of Military Justice (Section 832 of Title 10, United States Code), requires a thorough and impartial investigation of charges and specifications before they may be referred to a general court-martial (the most serious level of courts-martial). However, the accused may waive the Article 32 investigation requirement. The purpose of this pretrial investigation is to inquire into the truth of the matter set forth in the charges, to consider the form of the charges, and to secure information to determine what disposition should be made of the case in the interest of justice and discipline. The investigation also serves as a means of pretrial discovery for the accused and defense counsel in that copies of the criminal investigation and witness statements are provided and witnesses who testify may be cross-examined.
Many news accounts of the investigation of Marines for possible crimes in Haditha declare that the investigation is complete - this is not true - and give the erroneous impression that guilt has been determined. But the outcome of the investigation (even if it includes full confessions from all parties) can only be that there is or is not sufficient evidence to convene a court-martial and determine the guilt or innocence of the accused.

I'm not making any comments in this specific case. But I do mean to point out that from a legal perspective, guilt or innocence is yet to be determined. This can only be done in an actual trial. This may come as a shock to those who've been following some very high profile statements made on this case - which is why no one with any concern for the rule of law has made any such statements.

Anyone who's been in service as long as I have has some experience with military justice. The military is society in microcosm, and if you work in an organization of several hundred people, chances are some are criminals. Some break laws unique to the military, others violate the established laws of society. Some go AWOL. Some beat their spouses. Some break speed limits. Some drive drunk. Some disobey orders. Some are thieves who bring government pens home from the office. Some commit murder. Some listen to pirated music or record football games without the express written consent of the National Football League. Some may even try to provide 'cover' for the crimes of others.

If this were true only of the military we'd have quite a story. But it isn't. Other than AWOL and orders that's pretty much like your neighborhood, believe it or not. But when military members commit violent crimes, the fact that they are military has a prominent place in the story.

Strangely, in the minds of many the fact that they've been investigated and prosecuted by the military seems like just another indicator of our brutality - they assume we need such a safeguard in our system because we are overly prone to such transgressions. (I won't go into all the details of why we need a separate justice system in this brief comment) So even in "doing the right thing" we are apt to be accused of additional violations of societal norms.

That prejudice will be fueled by the media narrative - which will in some way or another build on the pre-existing mindset that proclaims it's the system, and not this innocent young person, that is at fault, and simultaneously express outrage that the same system is prosecuting the case. Add in the defense's relatively broad latitude in public discussion of the case, offer low-hanging journalistic fruit like "cover-up" or "persecution of only the junior troops" and the stage is set for a long and painful experience.

In the background, in reality, less than perfect humans will do their best to judge their less than perfect fellows in a quest for an elusive concept called justice. Kudos to all who work within the military justice system for performing admirably under such adverse circumstances.


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Posted by Greyhawk / May 31, 2006 7:53 PM | Permalink

2 TrackBacks

Haditha (Updated from Small Town Veteran on June 1, 2006 9:04 PM

Hot Air has two don't-miss videos here and here. I'm not the only one who doesn't like the way Michelle and Allah have been dealing with this situation. *** Michelle comments here and here, and finally says what she should Read More

The media feeding frenzy seems to be in full bloom now. Read More

12 Comments

It is obviously the rule of judges that the Democrats prefer to the rule of law, contrary to their claims.

Thanks Greyhawk. That helps. You are very good at what you do.

Who would have ever thought that those who defend us would need us to defend them. God save us from the left and how about watching over our marines while your at it

You made clear and concise points on the radio. We need more people like you to defend our soldiers. People who spit on our soldiers should be ashame. Our military guys are the bravest!

Good post, it's important to note that while an Art 32 hearing is similar to a grand jury, it differs markedly in the fact that the accused (w/ counsel) can appear, present witnesses, cross-examine prosecution witnesses, etc.

In a typical grand jury proceeding, it's just the gov't and the defense isn't even allowed in.

Good laydown. Would suggest only one addition: that the UCMJ is embodied in 10 USC 801-946.

Way too many folks don't understand that the UCMJ is law, not just a collection of rules the military thought up.

Thanks Greyhawk. I wish we didn't have to talk or think about these things, but it is necessary to educate the public that there IS a process and the process needs to be respected before they rush to judgment.

Worry not. The fix is in. By waiting four months to start the, ahem, "investigation," the military allowed crucial evidence to be destroyed and lies to be coordinated.

There will be a long elaborate drama in which the military pretends to aggressively pursue truth and accountability, but the end result will be mostly acquittals and maybe a wrist-slap or two.

http://w3t.org/u/qbg

In the end, you'll be able to assure yourselves that there was no massacre and that it was all a figment of the left-wing's imagination. Military people call this sort of thing "slow-rolling," and the Pentagon has long has it down to a science.

*deep breath*...

(whispered under my breath: don't feed the trolls...dont feed the trolls...don't feed the trolls)

Wasn't the point of "A few good men" that it was only the heroic efforts of the defense attorney in cracking the crazy but entrenched Col. Nathan Jessep that prevented a cover-up? Wasn't the neophyte assigned to the case so that the two marines could be scapegoated? Of course that was fiction, but expecting such a movie to teach us that the military justice systems is flawless seems unreasonable.

Since we're on the subject, any thougths about the slap at the top brass that the "NCIS" finale delivered?

Thank you, Greyhawk, for explaining this in such a succinct manner. I haven't written about it yet, frankly, because I don't know what to say! What are the facts? The only people who know them are not talking. The only people that are talking, do not know the facts, or so it is my belief. Again, thank you for your service above and beyond...

The “investigations” that are currently going on are not Article 32 investigations / hearings. They can only occur after a military member has been “accused” of an offense. The ongoing investigations are equivalent to Army “Article 15-6” investigation. It is non-judicial; a command function to determine what happened and where to go from here.

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November 18, 2009


Dawn Patrol 11/18/2009
[Mrs Greyhawk]
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Welcome to the Dawn Patrol, our daily roundup of information on the War on Terror and other topics - from the MilBlogs and various sources around the world. If you're a blogger, you can join the conversation. If you link to any of these stories, add a link to the Dawn Patrol too and your trackback will be added to the list. Hat Tips to the Dawn Patrol are greatly appreciated.Refresh for updates.


Support Our Troops, Read Their Stories

----------------------------

AFGHANISTAN/PAKISTAN

Boondoggle -- [3rd Time, New Country - in Afghanistan]
I know I am a little late on posting to my blog, but I returned from a boondoggle out to Mazar-e-Sharif in the Northern provinces. I even have some pictures to post with this entry. First, let me recap last week. We did make a normal trip to NDS. It was actually a clear, cool morning which is a rarity here in Kabul. The pollution is so thick that it is very rare to see the distant mountains. So, here is a picture of the snow-capped mountains, west of Kabul. This picture was taken last Monday. I haven't seen the mountains since. Other than that, it was a normal week of mentoring. There are always little things to work on and improve in the OT. Friday was another violent day here in Kabul. The Taliban used a SVBIED outside Camp Phoenix a little before 0800. There were no American casualties, but there were injuries.

Clinton in Kabul for Karzai's inauguration -- [Foreign Policy - AfPak]
U.S. President Barack Obama reportedly told CNN today that he is "very close" to making a decision about whether to send more U.S. troops to Afghanistan and plans to make an announcement "in the next several weeks," after more than two months of deliberations (Reuters, Reuters). Obama is reportedly angry about the stream of leaks that has come out about his Afghanistan decision, telling CBS, "For people to be releasing info in the course of deliberations is not appropriate" and said yes when asked if that is a "firing offense" (CBS, Politico). Meanwhile

The war of leaks -- [Foreign Policy - AfPak]
The Obama Administration's social media prowess has been a novelty among latter day political media machines. It helped to crowd-source the campaign funding needed to put Barack Obama in the White House, and generated a populist gloss that was, at the time, convincingly fresh and transparent. What was equally admirable was its apparent internal discipline over when information made the transition from government secret to press release. Controlling the flow of data and keeping secrets secret is a challenge under any circumstance. Combine that with a predilection for Facebook and Twitter, and a hyperactive security officer might expect policy waters to muddy more quickly than they would under normal circumstances.
So when U.S. Ambassador to Afghanistan Karl Eikenberry's expressed his "discomfort" last week over a possible troop surge, via diplomatic cable to Washington, it's no wonder that the message ended up dominating headlines.

Ridding Afghanistan of Corruption Will Be No Easy Task -- [Los Angeles Times]
Afghans have a name for the huge, gaudy mansions that have sprung up in Kabul's wealthy Sherpur neighborhood since 2001. They call them "poppy palaces." The cost of building one of these homes, which are adorned with sweeping terraces and ornate columns, can run into the hundreds of thousands of dollars. Many are owned by government officials whose formal salaries are a few hundred dollars a month. To the capital's jaded residents, there are few more potent symbols of the corruption that permeates every level of Afghan society, from the traffic policemen who shake down motorists to top government officials and their relatives who are implicated in the opium trade.

Afghan Minister Accused of Taking Bribe -- [Washington Post]
The Afghan minister of mines accepted a roughly $30 million bribe to award the country's largest development project to a Chinese mining firm, according to a US official who is familiar with military intelligence reports. The allegation, if proved true, would mark one of the most brazen examples of corruption yet disclosed in a country where the problem has become so pervasive that it is now at the heart of Obama administration doubts over Afghan President Hamid Karzai's reliability as a partner.

Vision for Victory, Part I -- [Washington Times]
The news from Afghanistan all year has been dispiriting, and the last few weeks have been especially tough in terms of the violence. Yet most foreign and Afghan officials and officers who I encountered on a recent weeklong visit sponsored by the U. military are guardedly optimistic about our prospects. How can this be so?

U.S. Turns to Local Guns-for-Hire to Guard Afghan Outpost -- [Danger Room - Noah Shachtman]
The U.S. military is turning to guns-for-hire to guard one of its outposts in Afghanistan. But Blackwaters of the world, take note: simply hiring former G.I.s or American cops or even Nepalese Gurkhas won't do the trick this time. At least half of the 50-man force has to come "from within a 50 kilometer radius" of the base, according to a contract solicitation issued by the U.S. Air Force. Over the summer, the American military signaled its interest in hiring an army of contractors to help handle security at as many as 50 outposts in Afghanistan. It's one of several efforts efforts designed to free up uniformed troops for combat and counterinsurgency work. Now, U.S. forces appear to be taking the first step towards building that country-wide private security force, by soliciting bids for a team that watch over Forward Operating Base Lightening, in Paktya province.

NATO Chief Confident Afghanistan Will Have More Troops -- [Voice of America]
The NATO secretary-general says he is confident the United States and other NATO allies will send more troops to Afghanistan, where insurgent attacks have surged in recent months. He spoke at the NATO Parliamentary Assembly Meeting in Edinburgh, where Britain's foreign secretary outlined the strategy his nation would support.

Germany to extend Afghanistan mission another year -- [AP]
Germany will extend its mission in Afghanistan for another year, the government said Wednesday, despite the growing unpopularity of the war at home



Pakistani Successes May Sway US Troop Decision -- [New York Times]
A month after the Pakistani military began its push into the Taliban stronghold of South Waziristan, militants appear to have been dispersed, not eliminated, with most simply fleeing. That recurring pattern illustrated the problems facing the Obama administration as it enters its final days of a decision on its strategy for Afghanistan. Success in this region, in the remote mountains near the Afghan border, could have a direct bearing on how many more American troops are ultimately sent to Afghanistan, and how long they must stay. Pakistan has shown increased willingness to tackle the problem, launching sweeping operations in the north and west of the country this year, but

Where are Taliban and al Qaeda commanders, US media asks Pak -- [Daily News & Analysis]
Washington: A day after senior Pakistani army commanders claimed that their forces have captured all major towns and population centres of the extremist-ridden South Waziristan, Taliban and foreign militants appear to have disappeared and not been eliminated.

Pakistani Army Shows Off Captured Taliban Posts -- [Washington Post]
A toy car booby-trapped with explosives, chemistry textbooks and handwritten case files from a Taliban court were among the debris left behind by fleeing Islamist militants in this remote village in the conflicted tribal region of South Waziristan. The now-deserted village, which was retaken by Pakistani army forces two weeks ago and visited by Western journalists on Tuesday for the first time since, had been a stronghold of Taliban forces for nearly five years.


IRAQ

Iraqi Kurds Warn of Election Boycott in Dispute Over Seats - [Washington Post]
Kurdish officials threatened Tuesday to boycott the upcoming national election in the three provinces they control in northern Iraq unless more parliament seats are allocated to the region. The threat came two days after Iraq's Sunni vice president said he would veto the election law passed last week unless more seats are set aside for representatives of Iraqi refugees. The majority of Iraqis abroad are Sunni. Vice President Tariq al-Hashimi has until Wednesday to veto the law, which legislators approved after weeks of wrangling, primarily over how the vote would be held in the disputed northern city of Kirkuk. The two ultimatums underscored the deep divisions among Iraqi politicians and raised fresh concerns about Iraq's ability to hold a credible election by Jan. 18.

Iraq's national elections in jeopardy as Sunni VP issues veto
-- [McClatchy News]
BAGHDAD -- Iraq's pivotal national elections were thrown back into turmoil and potential delay Wednesday after Vice President Tariq al Hashemi vetoed part of an election law and sent it back to parliament.

US has time to reconsider Iraq drawdown plan-Odierno -- [Reuters]
The US military does not have to decide until April or May whether to push back the end of its combat operations in Iraq due to...

A few words from medics for the 41st Brigade -- [The Oregonian]
I spent an hour or two last month with Oregon National Guard medics who are based at Al Asad Airbase, discussing a little of what they've observed since coming to Iraq this summer. The discussion, as you might think, covered issues in two categories: The physical and the mental. The Physical - CPT Scott Johnson of Newport, who is the highest-ranking soldier in the medical support unit at Al Asad, said that medics are seeing a significant share of orthopedic issues that stem from the heavy loads that soldiers carry. Even though the war has wound down considerably over the last few years, soldiers on convoys and at checkpoints still wear a lot of body armor and carry a lot of ammunition and weaponry, as much as 65 pounds or even more. Over time, even young soldiers experience increased stress on their joints from walking, running and jumping with that much gear.

Goodbye to Iraq, and thanks -- [The Oregonian]
The soldiers of Oregon's 41st Brigade are about halfway through their Iraq deployment, but I'm finally home after a gruelling passage through Kuwait and a misadventure or two. I said goodbye to my last acquaintance in the Oregon National Guard on Monday afternoon in Salt Lake City. SSG Tom McNeil of Central Point was peeling off to fly to Medford, close to his home in Central Point, while I continued on to Portland. Have a terrific Thanksgiving at home, Tom. Thanks to all the folks along the way, especially the soldiers of Oregon's 41st Brigade Combat Team, for the many kindnesses extended to me during my sojourn among them. This toast to you, and I'm starting with you two, since you challenged me to do this, Scott and Mike


U.S. AND OTHER PARTS OF THE WORLD

US, China in Strained Diplomatic Embrace -- [Wall Street Journal]
President Barack Obama was set to leave China on Wednesday after an awkward summit with some achievements but a long list of unfinished business - a result that suggests challenges ahead for the US as it struggles to come to terms with Asia's increasingly assertive superpower. The president secured a far-ranging framework for cooperation Tuesday with Beijing. But that deal was announced as frictions between the two nations appeared to increase over human rights and economic policy. President Obama and Chinese leader Hu Jintao issued their ambitious statement on cooperation in a clumsy fashion - at a media "availability" where they took no questions, didn't address each other and exhibited body language that seemed to say they had been frustrated by the entire exercise.

Obama: 'We've restored America's standing' -- [CNN]
A little more than a year after his election, President Obama said his administration has laid the groundwork for success on global and domestic matters. -- "I think that we've restored America's standing in the world

Somali Pirates : Maersk Alabama Attacked, Fights Back -- [Eagle Speak]
On the early morning of 18 November 2009, 350 nautical miles east from the Somali coast, pirates attacked MV Maersk Alabama, a US flagged, Danish owned, 155 meter long, Container ship.

Iranian COS Warns Russia: Your Security Is Tied To Ours -- [Memri Blog]
Iranian Army chief of staff Hassan Firouzabadi has warned Russia that delay in the supply of S-300 missile systems could harm Russia because its security is tied to that of Iran.




WAR ON TERROR /TERRORISM

Suspected Fort Hood Shooter Believed to Be Self-Radicalized -- [Wall Street Journal]
Some lawmakers briefed Tuesday on the Fort Hood shooting said the suspect, Maj. Nidal Malik Hasan, was most likely a self-radicalized extremist. The briefing for select members of Congress came as Republicans with oversight of national-security issues called on Democratic House Speaker Nancy Pelosi to open a full congressional inquiry into alleged government miscues in the case of Maj. Hasan. He is charged with murdering 13 people Nov. 5 on the sprawling US Army base where he served as a psychiatrist.

Guantánamo Won't Close by January, Obama Says -- [NY Times]
President Obama acknowledged for the first time on Wednesday that his administration would miss a self-imposed deadline to close the detention center at Guantánamo Bay, Cuba, by mid-January, admitting the difficulties of following through on one of his first pledges as president.


SUPPORTING THE TROOPS...OR NOT

No Man Left Behind -- [Knottie's Niche]
We've all heard the military quote "No Man left behind" But it wasn't until last weekend as I sat listening to a veteran Marine talking to an Army Sgt about how the Army helicopter pilot who saved him and many others in Vietnam by flying in a hot zone repeatedly to save men that it hit home. The words took on a whole new meaning to me. When Micheal was killed the Army did not leave us behind. It started with a visit to tell us the news and they did not leave until there was no more they could do for us in that moment. Then there was the email to let us know no one else had been hurt from one of the medics. The Army did not leave us behind when they assigned us a causality assistance officer who walked us through each step, even offering to go to the store for us at any hour of the day if we needed anything at all. Then the emails, calls and instant message conversations from the men who served with Micheal began.

LTC Tim Karcher Update -- [Soldiers' Angels Germany]
Wonderful update on LTC Tim Karcher, Commander of the 1st Cavalry Division's 2nd Battalion, 5th Cavalry Regiment, 1st Brigade Combat Team, wounded June 28 in Sadr City.
4 weeks later, after fighting for his life in Iraq, here in Germany, and at Walter Reed, the loss of both legs was the least of his problems:

Support SA while Christmas shopping this year! -- [Soldiers' Angels Germany]
Through Soldiers' Angels, patriotic Americans can do their Holiday shopping or planning and support the troops at the same time!
The easiest way to do this is shop online at all your favorite stores. If you stop by GoodShop and Shop to Earn before you start, you can visit all your favorite online stores, purchase anything you want at the usual great prices, and a portion of what you spend will be donated to Soldiers' Angels--at no extra cost to you! On GoodShop, be sure you select Soldiers' Angels as the charity you are "GoodShopping for."

Trees for Troops: Helping Military Families -- [AdAge.com]
Military families. Transportation. Tree growers. Logistics. These seemingly incongruous words provide a case study in cause marketing.

FOX 5 Special: I-Team VA Loans -- [FOX News]


A FOX 5 I-Team investigation uncovered allegations of a nationwide scheme by banks and mortgage companies to defraud U.S. military veterans. The scheme, spelled out in court documents, claims banks are overcharging veterans on home refinancing loans.
The question raised in a racketeering and class action law suit is how many of those loans involved banks defrauding U.S. military veterans.



MILITARY

Muslim discrimination in the U.S. military. Not. -- [Castra Praetoria]
I'm done listening to any more bellyaching about how Muslims have it bad in the American military. It's a lie.
At this very moment there are American Muslims serving in our armed forces with valor. Muslim interpreters work along side us daily who aren't even American citizens and they have proven themselves as well. All these pansies wailing and moaning about discrimination against them because they are Muslims are not doing anyone any favors. Take it from a guy who has served along side Muslim Marines and Sailors in combat; worked with Jordanian and Iraqi interpreters in country; trained with Iraqi-Americans who have contributed to the effort by working as role players and training our troops in culture and language classes.

Time to revisit firearms policies on military posts -- [Atlanta Journal Constitution]
Just as legitimate questions were raised following the mass killings on the Virginia Tech campus in 2007, both military personnel and civilian citizens

Army's Record Suicide Rate 'Horrible,' General Says -- [Washington Post]
Army Vice Chief of Staff Gen. Peter W. Chiarelli on Tuesday called the Army's record suicide rate this year "horrible" and said the problem of soldiers taking their own lives is the toughest he has faced in his 37 years in service. As of Nov. 16, 140 soldiers on active duty and 71 soldiers not on active duty were suspected to have committed suicide. "We are almost certainly going to end the year higher than last year,"




WELCOME HOME

Veterans' descendants welcome troops home to Fort Campbell -- [Clarksville Leaf Chronicle]
Their day concluded with the Welcome Home ceremony for 80 soldiers who returned from a year in Afghanistan. "We are descendants of our country's first

'Greywolf' Among First CAV Troops to Return Home -- [DVIDS]
Once the buses arrived at Cooper Field, chants of "move that bus" were heard from Families waiting to welcome home their Soldiers. Tommy Tatum, from Kempner


THE MEDIA

Where are Taliban and al Qaeda commanders, US media asks Pak -- [Daily News & Analysis]
Washington: A day after senior Pakistani army commanders claimed that their forces have captured all major towns and population centres of the extremist-ridden South Waziristan, Taliban and foreign militants appear to have disappeared and not been eliminated.

Army officials said that they have killed as many as 550 Taliban militants a month after the military began its campaign into the lawless territory, yet they acknowledge that hundreds, perhaps thousands more have melted away.
As the offensive into the area, considered to be a sanctuary of al Qaeda and Taliban militants gained momentum, Boston Globe said, "Vast numbers of Taliban and foreign terrorists had disappeared into the vast desert scrub and craggy hills surrounding their strongholds of Sararogha and Ladha".
"Where are they? That's what bothers me," New York Times quoted a senior American intelligence officer as saying.




POLITICS

Republicans Criticize Obama's Call to Delay Hill Inquiries on Fort Hood -- [Washington Post]
The Obama administration's request that congressional committees slow their investigations of the Fort Hood shootings sparked denunciations Tuesday from Republicans on Capitol Hill, who pushed for an immediate inquiry of any warning signs before the massacre. House and Senate Republicans, emerging from the most detailed briefings given to Congress since the Nov. 5 attack killed 13 at the central Texas Army post, said delaying investigations would put off legislative efforts to give military officials the tools to prevent similar tragedies in the future. They said such an effort would not interfere with the criminal investigation of shooting suspect Nidal M. Hasan, an Army major who was scheduled to deploy to Afghanistan.


Obama Approval Dips Below 50% For First Time
-- [Quinnipiac University]
Quinnipiac University National Poll Finds; Support For U.S. Troops In Afghanistan Drops Below 50% -- President Barack Obama's job approval rating is 48 - 42 percent, the first time he has slipped below the 50 percent threshold nationally ...


HUMOR / SATIRE

Day By Day



(Need more? Dawn Patrols Archives are here.)



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  • Peter: The “investigations” that are currently going on are not Article read more
  • Rosemary: Thank you, Greyhawk, for explaining this in such a succinct read more
  • Retief: Wasn't the point of "A few good men" that it read more
  • Pilgrim: *deep breath*... (whispered under my breath: don't feed the trolls...dont read more
  • WW: Worry not. The fix is in. By waiting four months read more
  • Some Soldier's Mom: Thanks Greyhawk. I wish we didn't have to talk or read more
  • Expatriate: Good laydown. Would suggest only one addition: that the UCMJ read more
  • Army Lawyer: Good post, it's important to note that while an Art read more
  • Lili: You made clear and concise points on the radio. We read more
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