SOLDIERS' RIGHTS, RESPONSIBILITIES,
Soldiers have specific rights in regard to personal expression, legal assistance, and civil rights.
Freedom Of ExpressionThe right of all citizens to express their feelings freely and openly has only those limitations necessary to protect the rights of society. Soldiers have the same basic rights. These rights must, however, be consistent with good order and discipline and national security.
CORRESPONDING WITH A MEMBER OF CONGRESS
Soldiers may write or petition any member of Congress about a complaint. You should not interfere with or try to dissuade a soldier from exercising this right. UCMJ, Article 138 (Chapter 13), protects a soldier's right to complain and request correction of a grievance against his commander.
WRITING FOR PUBLICATION
Generally, soldiers may not write on the following topics without submitting their writing for prior review and approval by the appropriate headquarters:
- National government operations.
- Military matters.
- Foreign policy.
They may write letters to editors and similar articles that constitute personal opinion or knowledge without having them reviewed and approved, even if the topic involves military matters or foreign policy. (See AR 360-5, Chapter 4.) Soldiers may not do personal writing during duty hours or use Army facilities, personnel, or property. (See paragraph 2-4.)
Writing for underground newspapers is not illegal, but it is subject to the same restrictions as other forms of writing. Soldiers may publish these newspapers off post, on their own time, and with their own money. However, soldiers are subject to discipline if the newspaper contains material or words for which the soldier can be prosecuted under federal law.
DEMONSTRATINGSoldiers may participate in demonstrations if they do not-
- Do so during duty hours.
- Soldiers participating during duty hours may be considered AWOL.
- Do so while in uniform.
- Soldiers in uniform can give the appearance that the Army sponsors or approves of the demonstration.
- Do so while on post.
- Do so while in a foreign country.
- Create a breach of law and order such as blocking traffic or assaulting police.
- Do so when violence is likely to result. (See AR 600-20, paragraph 5-3.)
Soldiers who demonstrate in a manner prohibited by AR 600-20 may be subject to disciplinary action.
EXPRESSING OPINIONS ON POLITICAL SUBJECTS
Soldiers do not lose the right to express opinions on all political subjects and candidates. Soldiers may not, however, use "official authority or influence for the purpose of interfering with an election or affecting the course of its outcome" (DOD Directive 1344.10). Therefore, as a commander, you may not campaign among your subordinates for any political party or candidate or distribute any literature published by one.
Soldiers retain the right to vote in local and national elections. They may register to vote at their legal or permanent residence. (See AR 600-20.) Some soldiers change their legal residence to the state where they are stationed. (However, by registering to vote where stationed, soldiers might incur local taxes. Any soldier considering registering in the local community should visit a legal assistance officer to discuss possible problems.) When duty requires them to be away, soldiers may vote by absentee ballot. The forms needed to get absentee ballots and other election materials are generally available in the legal assistance office or from the unit voting officer.
ATTENDING POLITICAL MEETINGS
When not in uniform, soldiers may attend both partisan and nonpartisan political meetings or rallies as spectators. While soldiers may go to these rallies, they may not speak before a partisan political gathering of any kind to promote a partisan political party or candidate. The limitations on soldiers participating in public demonstrations also apply to participating in political meetings. That is, soldiers cannot do so when on duty, while in uniform, while on post, and so forth. Furthermore, soldiers may not attend partisan political events as representatives of the Army, even though they do not actively participate. (See AR 600-20, Appendix B.)
Soldiers may also join political clubs and attend meetings when not in uniform. However, they may not serve in any official capacity (for instance, as officers) or be sponsors of a partisan political club.
Through the legal assistance program, the Army provides free legal advice to soldiers and their family members. (See AR 27-3.) In some places, the Army is also operating a court representation program. This program permits legal assistance attorneys to represent soldiers before civilian courts. To qualify for this program, a soldier must be unable to afford civilian counsel. Check with your legal assistance office to find out if this expanded program is available locally.
You should learn to recognize legal problems affecting soldiers and encourage them to seek help from the legal assistance office. All problems, however, are not legal problems, and you must distinguish legal assistance difficulties from situations involving criminal, administrative, financial, and other matters. For example, the finance office handles pay problems, and the adjutant general's office answers promotion questions. Legal aid for military criminal matters, whether involving Article 15 or court-martial, is not part of the legal assistance program but is provided by the US Army Trial Defense Service.
Several emergency services are available for soldiers. The Army Emergency Relief (AER) office can provide interest-free loans and, in cases of extreme hardship, free cash grants to soldiers and their family members who are in financial distress.
The Red Cross provides services such as--
- Family and personal counseling.
- Emergency financial assistance.
- Referrals to agencies for help in employment matters, medical care, and children's welfare counseling.
- Emergency communication between soldiers and their families when conventional communication facilities are inadequate.
The Army Community Service Program further helps soldiers and their families by providing information, assistance. When a soldier discusses a problem with a dance in meeting personal and family problems.
Emergency leave and compassionate reassignments are available to soldiers when appropriate. Emergency leave and, in some cases, space-required transportation on military aircraft may be granted in cases of death of an immediate family member or other urgent personal problems. (See AR 630-5, Chapter 6.)
Family emergencies also may trigger a request for a compassionate reassignment. To qualify, a soldier must be able to prove that--
- An unusual problem exists that can be solved only by reassignment and not by leave or correspondence.
- The problem is solvable within a reasonable period (usually one year).
- The problem did not exist or was not foreseeable at the time the soldier last came on active duty.
AR 614-200, Chapter 3, provides other requirements for compassionate reassignment.
In the cases of both emergency leave and compassionate reassignment, the Red Cross can assist you in getting information about conditions at the soldier's home.
LEGAL ASSISTANCE OFFICE SERVICES
Most military installations have legal assistance offices staffed by attorneys who can provide three important services for the command. First, they assist soldiers and family members with personal legal problems. This helps ensure that soldiers are ready to perform their missions without distraction. Second, they form the core of the installation's preventive law program. They help soldiers learn to avoid problems, especially those regarding taxes, personal readiness, and consumer rights. Finally, legal assistance attorneys assist in readiness exercises, helping commanders evaluate their unit's deployment preparedness and developing plans for ensuring that soldiers' legal affairs are in order.
The chain of command and the legal assistance attorney form a team to help soldiers avoid problems, solve problems they cannot avoid, and maintain a high level of morale and readiness. The legal assistance attorney is a resource you can use to help individual soldiers, to present command information classes, and to consult with regarding soldiers' needs to arrange personal affairs to achieve deployment readiness.
When a soldier discusses a problem with a legal assistance attorney, they create an attorney-client relationship. The attorney cannot disclose information from those discussions without the soldier's consent unless extraordinary circumstances exist regarding future violations of criminal law.
The most common services available to soldiers and their family members from the legal assistance office are--
- Powers of attorney.
- Immigration and naturalization.
Wills. To be valid, a will must comply with specific legal requirements. If a soldier dies without a will, the law of the state where he was domiciled at the time of death will determine who should take his property. The state of domicile is the state in which the soldier is a legal resident and is not necessarily the state where he resided. A will may also nominate guardians of minor children. In addition, a soldier can use a will to designate who should administer the estate. Legal assistance attorneys are available to help soldiers determine if a will should be prepared and to write wills for soldiers and family members.
Powers of attorney. Powers of attorney authorize one person to act on behalf of another. For example, a soldier's spouse may use the soldier's power of attorney to--
- Clear government quarters.
- Ship the family car.
- Cash the soldier's paycheck.
Special powers of attorney are designed to confer limited authority for a short period and do not pose great risk to the person granting the power. On the other hand, general powers of attorney allow the agent to transact any business on behalf of the soldier. They can be dangerous because they confer considerable power, and they are difficult to revoke.
Marriage. Legal assistance attorneys can also help guide clients on legal aspects of family issues. For nonlegal aspects, referral to a chaplain, a counselor, or an Army community services representative may be appropriate, and you should consider recommending that soldiers seek assistance from these sources.
When a marriage cannot be saved, however, legal assistance attorneys can provide guidance on obtaining a separation or divorce. In addition, they can help in paternity matters, adoptions, family support issues, and name changes.
Immigration and naturalization. US immigration and naturalization laws have special provisions for soldiers who are aliens to acquire American citizenship, and AR 608-3 discusses them. An alien who has served honorably in the US armed forces can acquire US citizenship without satisfying the normal residence, physical presence, and waiting period requirements.
Commanders at all levels must ensure that all aliens on active duty are aware of this law and are offered help in applying for US citizenship. Legal assistance attorneys can help with problems such as--
Military Lawyer: P. Simmons, Military Lawyer replied 8 years ago
OK, let me give you some general information first. There is both compassionate leave as well as a hardship transfer.
Families of servicemembers frequently experience some financial hardship or psychological strain resulting from the disruptions of family life associated with military duty. To be granted discharge, however, a member must be experiencing more extraordinary conditions. Grounds for hardship or dependency discharge do "not necessarily exist solely because of altered present or expected income, family separation, or other inconveniences normally incident to Military Service."
The basic standards for both hardship and dependency discharges are the same:
"The hardship or dependency is not temporary [usually interpreted as lasting more than a year];
"Conditions have arisen or have been aggravated to an excessive degree since entry into the Service, and the member has made every reasonable effort to remedy the situation;
"The administrative separation will eliminate or materially alleviate the condition; and W "There are no other means of alleviation reasonably available."
A discharge application cannot be denied merely because the person is in debt to the military or government or because the person's services are needed by the military
If the hardship or dependency is of short duration, the member can apply for "humanitarian reassignment" (or "compassionate reassignment" in the Army) to a duty station closer to home: Criteria:
The problem is temporary and is expected to be resolved within one year; The problem cannot be resolved through the use of leave, correspondence, power of attorney, or the help of family members or other parties; The problem neither existed nor was foreseen at the time of latest entry on active duty;
If the problem involves the health and welfare of a family member, in the Army and Navy the family member must meet their definition of "immediate family." (However, parents-in-law may also be considered.); A vacancy must exist at the requested duty station.
The Actual Army Regulation on Harship Discharge says:
6-2. Dependency or hardship
Upon the request of a Soldier and approval of the separation authority, separation may be directed when it is considered that continued membership and service on AD, full-time National Guard duty (FTNGD), or ADT, would result in genuine dependency or undue hardship.
a. Criteria for separation. Separation may be approved when all of the following circumstances exist:
(1) The hardship or dependency is not temporary;
(2) Conditions have arisen or have been aggravated to an excessive degree since entry in the Army, and the Soldier has made every reasonable effort to remedy the situation;
(3) The administrative separation will eliminate or materially alleviate the condition; and
(4) There are no other means of alleviation reasonably available.
b. Limitation of criteria for separation. The following circumstances do not justify separation because of dependency or hardship. However, the existence of these circumstances does not preclude separation because of dependency or hardship provided the application meets the criteria in aabove.
(1) Normal pregnancy of a Soldier's wife is not a condition for which his separation is justified.
(2) Undue hardship does not necessarily exist solely because of altered income, separation from family, or the inconvenience normally incident to military service.
c. Conditions of dependency or hardship.
(1) Dependency. Dependency exists when, because of death or disability of a member of a Soldier's family, other members of his or her family become principally dependent on him or her for care or support to the extent that continued membership and service on AD, FTNGD, or ADT, would result in undue hardship.
You can read all of the regulations here:
Consider getting help in putting your ducks in order, and pulling together the documents and written statements you will need. The Army Regs say:
Application for separation. A Soldier must submit a written application to be separated because of dependency or hardship. A request for separation will be submitted as follows:
(1) An ARNGUS Soldier, or USAR Soldier assigned to a TPU or IMA duty position, must submit a written application to the unit commander who will immediately forward it with recommendations and Soldier's records through channels to the separation authority (para 1-10) for final action.
(2) A Soldier assigned to the IRR, Standby Reserve, or Retired Reserve, must submit a written application to the Commander, HRC-St. Louis, ATTN: AHRC-PAR,XXXXX St. Louis, MONNN-NN-NNNN The Chief, Regional Personnel Actions Division, will immediately forward it with recommendations and Soldier's records through the Director, Personnel Actions and Services Directorate, and Director, Enlisted Personnel Management Directorate, to the Commander, HRC-St. Louis (para 1-10b(1)) for final action.
e. Evidence required. The evidence required for dependency or hardship separation will normally be in affidavit form. The evidence must substantiate dependency or hardship conditions on which the application for separation is based.
(1) The evidence will include affidavits or statements submitted by or in behalf of the Soldier's dependents and by at least two disinterested persons or agencies having firsthand knowledge of the circumstances. If dependency or hardship is the result of disability of a member of the individual's family, a physician's certificate should be furnished showing specifically when such disability occurred, the nature thereof, and prognosis for recovery. There also will be furnished the names, ages, occupations, home addresses, and monthly incomes of other members of the applicant's family. The affidavits of disinterested individuals and agencies should include reasons within their knowledge that these members of the family can or cannot aid in the financial or physical care of the dependents concerned for the period the Soldier is to continue membership or is ordered to AD, FTNGD, or ADT. When the basis for the application is the death of a member of the Soldier's family, a death certificate or other proof of death should be furnished.
(2) If the basis for the application is parenthood of either a sole parent or a married oldier, the supporting evidence will be in affidavit form and will substantiate the applicant's claim that unexpected circumstances or circumstances beyond his or her control have occurred. These circumstances prevent fulfillment of military obligations without resultant neglect of the child. Affidavits from the Soldier's immediate commander and officer who is the job supervisor will be considered sufficient. Evidence in (1) above is not required for these applications; however, sole parenthood resulting from divorce or legal separation will be substantiated by a judicial decree or court order awarding child custody to the Soldier.
f. Procedures. On receipt of a written application with required supporting evidence, the separation authority will-
(1) Consider carefully the facts on which the request is based.
(2) Obtain any other information that may be necessary to determine the validity of the request.
(3) Take final action to approve or disapprove the application.
So, that is the regulation. As you can see, there are several different factors the Army will consider. The more of the factors that you can address, the stronger his chance of success.
If your anywhere near a base, you should stop in and see JAG who can help you assemble the request...or can help him assemble the request.
Please let me know if you have further questions; if so I will do my best to answer them. If not please hit the accept button, its the only way I get credit for my work.
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P. Simmons, Military Lawyer
Category: Military Law
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Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.