CADET AND MIDSHIPMEN MISCONDUCT
The assistance of counsel in cadet misconduct hearings is of exceptional value. All of the service academies have similar regulations pertaining to misconduct. By way of illustration, this article will use the US Military Academy regulations as a point of reference. For third and fourth class cadets, the Deputy Chief of Staff - G1 - takes final action on recommendations for separation from the Superintendent USMA.
Cadets are subject to both the Uniform Code of Military Justice (UCMJ) and military academy honor code regulations. In that regard, cadets are subject to the possibility of a court-martial for misconduct. Nonetheless, military academy court-martials are rare unless the case involves sexual assault.
Cadet misconduct cases are often confusing for parents and loved ones because of the terminology. Generally speaking, cadet cases result in either an Honor Code Investigative Hearing (AR 210-26, para 6-16), Cadet Disciplinary Cases (para 6-17), or Misconduct Hearings (USMA 1-10).
Possible punishments for all types of hearings are found in para 6-4 on page 16. Those punishments include:
- Deprivation of privileges
- Reduction in rank
- Punishment tour
- Fatigue tour
- Loss of leave
- Recommendation for separation
The advice of counsel is usually not essential in cadet run hearings. Misconduct hearings under the provisions of USMA 1-10 do require at minimum a consultation. A misconduct hearing under the provisions of USMA 1-10 can result in separation. Separation most often results in a recoupment action for tuition and expenses. For a cadet near graduation, the recoupment costs can easily total over $140,000.00. A consultation with a qualified attorney is advisable.
The procedures used in Misconduct Hearing will be foreign to most cadets, parents, and even some lawyers. A couple of points are helpful:
- Notice of a Misconduct Hearing and it's basis is required to be in writing. USMA 1-10, para. 2.
- The Investigating Officer must provide all documents in the case file to the cadet.
- The hearing is usually held no earlier than the 7th calendar day following notice.
- Our experience is that hearings usually take place during the late summer before the fall semester.
- The cadet has the right to consult with counsel before the hearing - including military counsel. The cadet does not have a right to counsel at the hearing. To the extent you hire civilian counsel, it is for the purpose of preparing the cadet to defend his or her case at the hearing and for any appeal. USMA 1-10, para. 3c.
- The cadet may call witnesses and present evidence at the hearing.
- The cadet can also make an opening statement and closing argument.
- There are no rules of evidence.
- Polygraphs and statements from the cadet taken in violation of the 5th Amendment or Article 31 are not admissible.
- The standard of proof is probable cause.
- The Superintendent is not bound by the Investigating Officer's recommendations. The Superintendent may consider new evidence on appeal.
- Cadets have the option of resigning.
- Characterization of service is usually Honorable or General Under Honorable Conditions.
- Recoupment of educational costs can result from voluntary misconduct.
- When recoupment of educational expenses are recommended, federal law controls. 10 USC 2005
- Because the costs of separation are so great in a cadet misconduct case, it is worthwhile to get a free consultation to understand your rights and the consequences of the separation action.
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
Brian Pristera Attorney
A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
Joseph Galli Attorney
Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More
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