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Ask the Lawyer: Being jailed with foreigners could cut your time

Jul. 8, 2013 - 08:39PM   |  
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Q. I heard somewhere that U.S. service members are not supposed to be put in jail with foreigners. True?

A. I expect most service members are unfamiliar with their rights under Article 12 of the Uniform Code of Military Justice, which prohibits members of the U.S. military from being placed in confinement in immediate association with enemy prisoners or other foreign nationals who are not members of the U.S. military.

Article 12 serves national security interests by ensuring service members are never placed in a vulnerable situation with foreigners.

Aside from these national security concerns, service members should care if they are imprisoned with foreigners, because such a violation of their Article 12 rights could afford them post-trial confinement credits.

However, being placed in a civilian jail or military brig where foreign nationals are being held may not alone be enough to trigger an Article 12 violation. The key here is whether the service member’s confinement was “in immediate association” with the foreign nationals.

As the U.S. Air Force Court of Criminal Appeals noted in the 2012 case U.S. v. Andrew J. Thompson, “Military members can be confined in the same jail or brig as a foreign national, but they have to be segregated into different cells.”

The case involved a senior airman who was found guilty of wrongfully using the synthetic marijuana drug spice. His sentence included a bad-conduct discharge, three months of confinement, and monthly forfeitures of $978 of his pay for three months.

After his trial, the airman was confined in a Douglas County jail in Colorado for a month before being taken to a naval brig. Despite being confined to a cell in the county jail separate from foreign nationals at night, the airman congregated with them during the day as they played cards, watched television and shared cleaning details.

Generally, confined service members who find themselves in immediate association with foreign nationals are supposed to seek relief by exhausting the confinement facility’s prisoner grievance system or by seeking redress through the Article 138 process, under which a complaint of wrongs is submitted through the chain of command to the general court-martial authority.

Some service members who were never informed of their Article 12 rights by their counsel may be able to cite “some unusual or egregious circumstance,” and seek relief through an appeal even if they did not take these steps. That’s what happened to the airman, who was granted 30 days of post-confinement credits for the time he was in immediate association with the foreign nationals at the county jail.

Service members who believe their rights were violated during their confinement should immediately contact a military law attorney, who may be able to help them petition for relief, possibly in the form of post-trial confinement credit.■

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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