Military Law FAQ

How do I have my criminal record expunged so that I can join the military?

Federal law sets the limit as to what criminal history potential service members may have and still enlist in the Armed Forces. My understanding is that expungement does not affect this process, as the military requires disclosure of offenses even if those offenses have been expunged. Thus, trying to expunge your record before enlisting is likely a waste of time and money. Talk to a recruiter for the branch you are trying to join. Recruiters have a full-time job to enlist people to join the military. If they can find a way to get you in, and you want join, in most cases they will help you.

Tennessee law does allow expungement in limited circumstances. See https://www.tn.gov/expunction.html for more information.

I am interested in joining the US military, but I am not a US citizen or lawful permanent resident. Can I join?

No, only US citizens or lawful permanent residents can join the US Military by federal law. Cole Law Group has an extensive immigration practice that could help you determine the steps necessary for you to become a lawful permanent resident if your goal is to join the US Military and your immigration status is holding you back.

If you would like more information about how to become a lawful permanent resident, I recommend that you read the following blog post by Cole Law Group Immigration Attorney Andy Goldstein: The Path to Legal Permanent Residence in Nashville, TN Part 1: An Overview.

Can I get divorced in Tennessee if I am in the military?

Maybe. There has to be a basis for the Tennessee courts to exercise jurisdiction over the parties. This is satisfied in most cases when one or both of the spouses have resided in Tennessee for at least 6 months. If service members are stationed overseas and were Tennessee residents before deployment, forward station, or mobilization of service, they may be able to begin divorce proceedings in Tennessee while overseas. This is a fact intensive inquiry, so often the best course of action is to consult with an attorney and explore what jurisdiction may be proper.

To better understand the law governing the distribution of marital property under Tennessee Law, read: Is This My Property? Separate v. Marital Property Under Tennessee Law

We have been married for 12 years. Does this mean I am entitled to my spouse’s military retirement benefits?

If the parties have been married 10 years or longer before either spouse files for divorce, and if the marriage included at least 10 years during which one of the spouses was in the military, the answer is yes as to retirement benefits pay. If the duration of the marriage is 20 years or more, then the spouse is also entitled to continued medical benefits as well as commissary and exchange privileges. For more information on this issue, see the Cole Law Group Military Divorce page or the Uniformed Services Former Spouse Protection Act (USFSPA; 10 U.S.C. §1408).

I joined the military, but I don’t want to do it anymore. Can I sue the government to get out of this contract?

Suing the government in such a situation is likely a bad idea. You would probably lose the lawsuit after investing in the services of an attorney. The best way to navigate these situations is not through a lawsuit, but to figure out a way that you are no longer fit to serve under the service regulations. For example, if you have medical concerns, you can bring these up to your chain of command and request a medical board to determine your fitness for duty. In some cases, the military has been known to allow people to get out of their contract early if the contracted service member makes it known to the chain of command that they no longer wish to serve. If you want to get out of military service, do it the right way. Consult with an attorney and your chain of command. Do not simply fail to report for military service, as being AWOL is a crime under the UCMJ and Tennessee law.

I am being investigated for a military crime. What will happen now?

Each branch of the service handles this a bit differently. The amount of procedure involved varies based upon whether the offense is a major offense that may result in a court-martial, or is a minor offense handled at the lowest level (company level in the US Army). There are also levels in between. In the US Army, military justice is conducted at the Company, Battalion, Brigade, and Division level.

For major crimes, you should be given a charge sheet and be referred to JAG for free legal assistance. You also have the option to retain a civilian attorney to act as the lead attorney in your defense.

For minor crimes at the company level, there usually is not much of an investigation or a prolonged hearing. The command presides over the proceedings and dispenses discipline. This usually results in minor punishment, such as extra duty or restriction to post for a short period of time. You should be advised of your rights during such a proceeding including the right to appeal if there is one.

In the Army, I have been an investigating officer many times and understand the procedure for military offenses that may be investigated at the Battalion and Brigade level. The commander will direct an investigation. The Army calls this a 15-6. The commander will assign an investigating officer to conduct an investigation into the suspected crime. The investigating officer will interview witnesses and collect sworn statements. The investigating officer will then write a memorandum to the commander detailing his investigation, his findings of fact, and his recommended punishment for the accused. The defendant in such a proceeding may retain counsel but is usually not afforded free counsel from JAG unless charges have been brought.

I am being punished by my unit leadership in a way that I think violates the law. What can I do?

There are legal limits for punishment that may be imposed on military service members. This includes limitations for how much pay may be suspended as a punishment, the amount of confinement that service members may be sentenced to, etc. The UCMJ contains many of these limitations for active service members. If you believe that you are being hazed or punished in a way that violates the law, you have many options internal to the military for how to report such behavior. This includes the Inspector General (IG), the Chaplin, a Sergeant Major or higher level commander.

I have been arrested for a crime while on leave from the military. Do I have to disclose this crime to my chain of command?

You may. There are likely lawful orders that require you to do so. Additionally, most military posts have a relationship with the local police departments whereupon they send all reports of military misconduct to the post, which is then distributed to the local commands. Thus, even if you do not disclose a local issue, it is likely your chain of command would find out anyway. The better practice in such a situation is to be up front with your first line supervisor about what happened rather than for your chain of command to be blindsided. It does not violate the Constitutional protection against double jeopardy for a service member to be punished under state law for criminal behavior and also be punished in the military for the same occurrence. This is due to the Separate Sovereigns exception to the double jeopardy rules as determined by the US Supreme Court.

Is adultery illegal in the military?

Yes, the latest version of the Uniform Code of Military Justice (UCMJ) effective January 1, 2019 still includes adultery as an offense under military justice. Even though adultery has not been prosecuted under state criminal law since the 1970s, charges of adultery are still prosecuted in military justice. I was once assigned to investigate claims of alleged adultery in the US Army while on active duty in Germany. Additionally, even if adultery was not a specific crime under the UCMJ, the military could likely punish it under catch-all provisions such as conduct unbecoming of an officer.

How did the UCMJ change in 2019?

On January 1, 2019, major changes to the Uniform Code of Military Justice took effect. According to the United States Army these changes include: “modernizing definitions for many offenses, adjusting maximum penalties, standardizing court-martial panels, creating new computer-crime laws, and much more.” A recent Military Times headline describes these changes as “the biggest update to UCMJ in decades.”

Significant criminal offense changes include:

• Replacing the offense of adultery with “extra-marital sexual conduct.” The offense was also broadened to include all types of sexual acts.
• Adding penalties to those in “positions of special trust” that abuse authority over recruits and trainees in Article 93a.
• New cyber-crimes in Article 123.
• A new fraud crime in Article 12a relating to credit and debit card fraud.
• The addition of cyberstalking in Article 130.
• A modern definition for the crime of burglary; and
• A new offense for illegal retaliation in Article 132.

For more information, please see the following: 2019 UCMJ Overhaul, What it Means for Service Members

I tested positive for drug use while in the military. What should I do?

First, you should understand that you have the right to hire a civilian attorney or request Trial Defense Service. I would not advise you to discuss the issue with your chain of command or any investigator without speaking to an attorney first. Ask for an attorney and ask to review the packet that proves you had a positive test. Your attorney should also request the packet. If you receive a notice of separation, respond appropriately to it. Read the applicable regulations cited in your separation packet and draft a rebuttal memorandum. Keep meticulous records and do not give up easily if you want to fight to stay in the military. Also, if you know you are subject to random drug testing, do not ingest anything for which you could be tested in the future. The military drug testing system is not infallible. I have heard many stories of false positives and have additionally read publicly available evidence of irregularities in military drug testing. Thus, I am willing to help those falsely accused of using illegal drugs.

Won’t the military provide me with an attorney for free? Why would I hire a civilian attorney?

The military will provide service members accused of serious criminal violations with a free trial defense attorney. However, the military does not provide access to these attorneys immediately. Generally, the military only allows access to an attorney after a service member has been charged or has appealed a lower level military discipline decision. This may be too late for many service members to achieve the best possible outcome in defending against military justice action. A savvy service member would consult with an attorney before talking with the chain of command, military investigators, or being interviewed by an investigating officer. Once a service member retains an attorney, the service member has the right to request that his/her attorney be present before talking about the issue with anyone. A private attorney can work with your freely provided attorney as the first chair at trial.

I got a less than honorable discharge but I think I should have received an honorable discharge. What can I do about this?

You may appeal your discharge characterization through a review board. Two different types of military boards can review a discharge, one is the Discharge Review Board (DRB) and the other is the Board of Correction for Military Records (BCMR). These discharge review boards may upgrade the discharge type or change the reason for discharge that is printed on your record of military service (DD-214). You would need to complete an application with the DRB or BCMR. You can complete the applications online or get the required forms from a local department of defense installation or regional office of the Department of Veterans Affairs (VA). For more information on this topic, please visit the VA website at https://www.va.gov/discharge-upgrade-instructions or consider consulting with an attorney.

If I receive a less than honorable discharge does this mean that I do not have certain benefits?

Yes. Federal and state law establish veterans’ benefits. These laws often have categorical distinctions that ensure only certain military veterans may receive the benefit. For example, hardly any benefits are available for military service members who are discharged under a bad conduct discharge. Some benefits are only available to military veterans that receive an honorable discharge. GI BILL participation requires an honorable discharge. Any discharge other than an honorable (OTH) discharge will bar the recipient from reenlisting into any component of the armed forces except under rare circumstances. Bad conduct and dishonorable discharge result in nearly all veterans’ benefits being forfeited. Dishonorable discharges have also been known to make employment difficult in the civilian sector. US Federal law bans dishonorably discharged veterans from owning a firearm. In fact, in most cases anyone that receives a dishonorable discharge loses the right to vote and the right to receive government assistance of any kind. Thus, the level of discharge you received is a vital fact in determining what benefits you are entitled to.

I have issues with the bonus I was supposed to receive when I joined the military. What can I do about this?

This is the type of problem that should be handled through your chain of command. If your chain of command is unwilling or unable to help, then you should consult other resources such as the IG office. The first step is to read your enlistment bonus contract to determine what provisions apply. Does the contract specify that there are certain things that you must or must not do in order to receive payment? Additionally, due to the Feres doctrine, military service members generally cannot sue the government, and this would likely apply here. Thus, a civil suit is unlikely to be effective.

In my experience in the military, most service members who have issues with their bonus have problems due to their own behavior. For example, currently the Tennessee Army National Guard bonus provisions put in enlistment and reenlistment contracts have several qualifications that are agreed to by the soldier. These include the soldier continuing to meet height/weight requirements and passing the Army Physical Fitness Test. However, it's well known that this is a struggle for many soldiers. The situation then falls under basic contract law, and there isn’t really anything that can be done to fix it. The contract specified that the soldier had to meet certain requirements. If those requirements are not met, then in legal terms the soldier has breached the contract and the Army is no longer required to pay the bonus. The soldier may request an exception to policy. However, in my experience these requests are rarely successful.

I am in the National Guard or Reserves, and I have had an adverse civilian employment action against me due to my status as a service member. Is this illegal?

Yes, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law designed to protect the civilian employment of active, reserve, and national guard military personnel in the United States called to active duty. The three major purposes of USERRA are protection against discrimination, to minimize disruption by providing for prompt reemployment, and protection of one’s pre-deployment job. The law clarifies that it is illegal for employers to discriminate against employees because of past, present, or future military service. For more information, please read my blog post about USERRA at: Fired from Civilian Job Due to Military Operational Requirements, What are my Rights?

Can I sue the military for wrongfully discharging me?

No, you cannot successfully sue the military for just about anything due to the Feres doctrine. If you believe your discharge was not correct, your best course of action is to apply for an upgrade of your discharge classification with a discharge review board. (See above FAQs about discharges). Reenlistment codes on your discharge paperwork (DD-214) determine whether or not you are eligible to reenlist at a later date.

What is the Service Members Civil Relief Act?

The Service members Civil Relief Act (SCRA) was enacted in 2003 in order to expand and revise the previous Soldiers’ and Sailors’ civil Relief Act of 1940. The SCRA has been amended several times and is designed to “ease financial burdens on servicemembers during periods of military service”. The SCRA gives financial and legal protection to eligible servicemembers and their families in areas such as lease agreements, installment contracts, credit card interest rates, mortgage interest rates, foreclosures, civil judicial proceedings, automobile leases, life insurance, health insurance, and income tax.

Eligibility is defined under the SCRA as including: 1) full-time active duty members of the five military branches; 2) Reservists on federal active duty orders; and 3) members of the National Guard on federal orders for a period of more than 30 days. Service members may use the official SCRA website to submit a request to generate a report certifying Title 10 active duty status for provisions under SCRA.

Disclaimer: The Answers to these FAQs are provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.

If you have a military law question, contact Cole Law Group at (615) 490-6020

Click here for more information about CLG’s Military Law practice

Click here for CLG’s Military Law Attorney Paul E. Tennison’s, Bio