Yongsan soldier gets 30 days for nightclub brawl, avoids discharge and felony conviction

By Ashley Rowland, Stars and Stripes
Pacific edition, Wednesday, October 7, 2009
SEOUL — A sergeant at U.S. Army Garrison-Yongsan was sentenced Monday to 30 days of confinement and a reduction in rank to E-3 for hitting two other soldiers during a street brawl outside an Itaewon nightclub in February.

Sgt. Markease Joyner, of the 501st Military Intelligence Brigade, was charged with one specification of making a false official statement and two specifications of assault. As part of a plea bargain, he pleaded guilty to and was convicted of two lesser offenses of assault consummated by battery. The false official statement charge was dropped.

Joyner, who was tried by military judge alone, was also sentenced to a forfeiture in pay of $300 per month for three months.

One soldier was stabbed in the chest during the Feb. 1 fight outside the popular King Club. An altercation started inside the club and spilled onto the street after police emptied the club.

Joyner testified during an Article 32 hearing in July that he got involved in the fight to defend his twin brother, Spc. Markelle Joyner, after he was allegedly attacked by Pvt. Matthew Bonham, who sustained deep cuts and bruises in the incident.

But on Monday, Sgt. Joyner said in court that he didn’t act in self-defense or to defend anyone else. Joyner’s civilian attorney, Michael Waddington, said outside court that Joyner had been defending his brother during part but not all of the fight.

Spc. Markelle Joyner was to be court-martialed Tuesday on charges of assault and making false official statements.

—————–
Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

United States: Released Marine Hopes for Appeal and Prepares for College
Joel David Klimkewicz is a United States Marine whose decision not to pick up a weapon, led to a court-martial, conviction and a seven-month jail sentence. He was released from jail at nearby Camp Lejeune, North Carolina, United States, on…
11 Apr 2005,

Joel David Klimkewicz is a United States Marine whose decision not to pick up a weapon, led to a court-martial, conviction and a seven-month jail sentence. He was released from jail at nearby Camp Lejeune, North Carolina, United States, on April 6; his prison sentence was suspended while his case is being appealed.

Ironically, Klimkewicz is hoping that one of a series of military court appeals might allow him to return to Camp Lejeune — or another installation — as a military chaplain. He said he is planning to begin religion studies at Southern Adventist University, in Collegedale, Tennessee, United States, with chaplaincy as his destination.

“That was my goal from the start of this thing,” he told Adventist News Network in a telephone interview five days after his release. Klimkewicz, 24, led a troubled life as a Marine before attending ship-board Bible studies conducted by a Seventh-day Adventist chaplain. He was converted, baptized and eventually joined the Adventist Church, where he learned that non-combatancy is the church’s recommendation, and, upon personal reflection, came to the conclusion that he could not take up a weapon to kill another person.

For now, Klimkewicz’s status is somewhat in limbo. He’s free to travel and begin his college studies, but his conviction and sentence are “frozen” while there are automatic appeals, first to a U.S. Navy/Marine Corps appellate court, then one to a combined U.S. Armed Forces appeals court. If both of these appeals are unsuccessful, a final appeal to the United States Supreme Court can be made. The process could take years to complete.

Meanwhile, Klimkewicz retains his optimism and a desire to be a chaplain.

“I’m not a conscientious objector,” he said. “I’m a conscientious cooperator; I don’t object to serving my country.”

But since that service would not allow him to take life, he couldn’t carry a weapon. Instead, he asked for non-combatant assignments such as clearing landmines, where he could help his fellow Marines but not carry a weapon. His superiors refused, and when he was ordered to pick up a rifle, Klimkewicz refused.

Klimkewicz said the greatest lesson he learned was that “we have to obey God rather than man, no matter what the consequences.” He and his family received support from the Adventist congregation in Jacksonville and from others around the country and even overseas, as evidenced by a donation sent from the Solomon Islands.

“The support of the church has been amazing, more than I could ever repay,” he told ANN.

The court-martial and sentence took its toll on Klimkewicz’s family, his wife Tomomi and their 3-year-old daughter. Mrs. Klimkewicz, a Japanese citizen, was new to the Adventist Church and the United States when the then-lance corporal’s ordeal began; backing from local church members has been vital, he said.

“She gained a lot of faith from the local church members who supported her morally and financially as well as all the church members who sent donations from around the country and all over the world,” Klimkewicz said. “She’s happy that I’m home. The separation time has actually brought us closer together, and she’s learned how to trust in God.”

While in jail, he conducted Bible studies that attracted interest from fellow prisoners, one expressing a strong interest in Adventist beliefs. He said his fellow prisoners were aware of his case and its circumstances: “When I found out I was going to be released, the prisoners in there were happier than I was that I was going to leave.”
Jacksonville, North Carolina United States,
Mark A. Kellner/ANN

—————–
Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.

Court Martial Lawyer Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Accidents Involving Underriding

The phrase “underride truck accidents” describes an incident concerning a vehicle or motorcycle that drives under the trailer of a truck. The accidental injuries as a result of these sort of accidents may be catastrophic and can include brain damage and manslaughter from decapitation.

A competent personal injury attorney in Athens Georgia can help people that were involved in underride truck incidents or whose family member was killed as a result of this type of accident.  A competent lawyer can develop a strong case to acquire comprehensive compensation for pain, suffering, medical related bills, lost income and other costs of the accident. Speak to an accidental injury law firm in Madison County Georgia to find out whether you have a case.

Causes of Underride Truck Incidents

Choose an experienced personal injury law firm that fights for those who have experienced severe injuries or loss of life due to accidents with causes like these:

• Truck traveling without lights or with dirty or damaged reflective tape and lights
• Truck driving much slower than the posted speed limit
• Truck parked too near the roadway without warning cones
• Truck jackknifed across narrow road without having lights or warning cones
• Truck missing rear safeguard designed to stop underride accidents
• Truck rear safeguard loose or defective
• Truck backs into smaller vehicle

These as well as other types of underride accidents can result in catastrophic injuries which are worthy of compensation. Those who make it through such accidents often have substantial needs. They could be brain-damaged and unable to work. It’s possibly that they have experienced spinal cord injuries that led to paralysis. They may have been critically burned if their car caught fire. Whatever the nature of the injuries, the victims of these kinds of accidents will be needing long-term care, therapy and assistive devices, all of these cost money. Look for a qualified injury lawyer who will look for comprehensive compensation for their clients to enable them to afford the care they need.

To find out more regarding underride truck accidents and to understand whether it’s likely you have a case, contact a personal injury lawyer in Athens Georgia.

Find Personal Injury Lawyers in Athens immediately if you have been seriously injured by an auto accident.

Car Accident Law Firms in Athens GA might be able to get you the compensation that’s rightfully yours.

Military Lawyer Appeals Court Martial on Grounds of Prejudice

Material prejudice from error

In United States v. Moore, 67 M.J. 753 (A.F. Ct. Crim. App. 2009) the Appellant pled guilty, and was found guilty, at a judge alone special court-martial, for wrongful use of alprazolam (Xanax), divers uses of marijuana, and larceny.

The adjudged and approved sentence was a bad-conduct discharge, five months confinement, and reduction to E-1. The issue in this case was whether the use of Appellant’s positive urinalysis tests, conducted after the period of charged marijuana use, were improper evidence in aggravation. The Court concluded that it was plain error to permit the documents and the Appellant suffered material prejudice because of the error. The AFCCA’s analysis in the case reinforces the importance of complying with the specific requirements of R.C.M. 1001.

“[T]he question is not whether the appellant’s continued use of marijuana while pending court-martial charges is aggravating—certainly it is, and it has a direct impact on good order and discipline. The question is whether the subsequent uses make the former use aggravating in a way consistent with the limitations of R.C.M. 1001(b)(4) and case precedent. We find that it does not.”

The ACCA analyzed the two limitations on aggravation evidence: (1) it should be directly connected to the charged offenses; and (2) it should pass a M.R.E. 403 balancing. In this case, the positive urinalysis tests after the charged period were not “directly related” to the charged offenses. When the aggravation evidence is uncharged misconduct, it must involve a continuous course of conduct with the charged offense. Regarding uncharged drug use specifically, the court applied the test from United States v. Hardison, 64 M.J. 279, 282 (C.A.A.F. 2007), that held uncharged misconduct should be “closely related in time, type, and/or often outcome, to the convicted crime.”

In Hardison, the court held that past service drug use failed this test when there was a three-year gap between the pre-service use and the charged use. Although though the time separation in this case was just a few months, the ACCA still did not find the uncharged misconduct to be “directly related” absent any specific evidence showing the uses were related; “[t]o conclude otherwise would simply result in the conclusion that all drug usage is aggravating to any charged drug usage.”

The Court acknowledges that the limitations in R.C.M. 1001 have been criticized, but points out the government has other options when the rules prohibit admitting uncharged misconduct in aggravation; the government could “incorporat[e] the essence of that misconduct in opinion testimony, refer additional charges, or try to admit it under R.C.M. 1001(b)(2) as properly maintained personnel records.” An experienced military lawyer can successfully challenge a guilty verdict and have it overturned.

If you have been held guilty by a court martial, consult with an experienced court martial lawyer. Court martial attorneys understand the complex rules and procedures of military law and can use them to your advantage. Consult with a military attorney if you are facing court martial. A military attorney can provide you with invaluable advice and service that can save your military career.

Sexual Assault in the Army, Navy Air Force and Marine Corps Reporting Policy from DoDD 6495.01, October 6, 2005

Note: If you are accused of a sex crime in the military, then contact an experienced sex crime court martial lawyer.

E3.1.1. The Department of Defense recognizes the potential impact restricted reporting may have on investigations and the ability of the alleged offender’s commander to hold the offender accountable. However, this policy decision represents the judgment that such risks have been carefully considered but were outweighed by the overall interest in providing sexual assault victims this form of support.

E3.1.2. This enclosure provides the framework for the confidential reporting program and its policies. The SAPRO will coordinate specific implementation details consistent with this policy, in conjunction with the Military Departments. This SAPR Program requires extensive, in-depth training for DoD personnel and specialized training for Commanders, Senior Enlisted Leaders, VA, SARC, investigators, law enforcement, chaplains, HCP, healthcare personnel, and legal personnel.
E3.1.3. See restricted reporting as defined in enclosure 2.

E3.1.4. The Department of Defense is committed to ensuring victims of sexual assault are protected, treated with dignity and respect, and provided support, advocacy and care. DoD policy also strongly supports effective command awareness and prevention programs, as well as law enforcement and criminal justice procedures that enable persons to be held accountable for their actions, which includes appropriate criminal dispositions for sexual assault. To achieve these dual objectives, DoD policy prefers complete reporting of sexual assaults to activate both victims’ services and accountability actions. However, recognizing a mandate of complete reporting may represent a barrier for victims to access services when the victim desires no command or law enforcement involvement, there is a need to provide an option for confidential restricted reporting.

E3.1.5. Assuring privacy and providing a confidential disclosure option for sexual assault victims is critical to discharging the military’s commitment to providing care and support for victims of sexual assault. Sexual assault is one of the most under-reported violent crimes in our society and in the military. Although the victim’s decision to report is a crucial step following a sexual assault, reporting is often precluded by the victim’s desire for no one to know what happened. The Commanders have a responsibility to ensure community safety and due process of law, but they must also recognize the importance of protecting the privacy of victims under their command. Subject matter experts agree that a system which promotes privacy and confidentiality can have a positive impact in bringing victims forward to provide information about being assaulted.

Sexual Assault Court Martial Attorney Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

CONFIDENTIAL REPORTING PROGRAM FOR VICTIMS OF SEXUAL ASSAULT – from DoDD 6495.01, October 6, 2005

E3.1.6. Recognizing these DoD interests as a matter of DoD policy, Service members who are sexually assaulted will now have the following reporting options:

E3.1.6.1. Unrestricted Reporting. A Service member who is sexually assaulted and desires medical treatment, counseling, and an official investigation of his or her allegation should use existing reporting channels (e.g., chain of command, law enforcement, or report the incident to the SARC). When notified of a reported sexual assault, the SARC will immediately assign a VA. Additionally, at the victim’s discretion or request, the healthcare provider shall arrange a SAFE (see paragraph E2.1.13.) to be conducted, which may include the collection of evidence. Details regarding the incident will be limited to only those personnel who have a legitimate need to know.

E3.1.6.2. Restricted Reporting. Restricted reporting allows a sexual assault victim to confidentially disclose the details of his or her assault to specified individuals and receive medical treatment and counseling, without triggering the official investigative process. Service members who are sexually assaulted and desire restricted reporting under this policy may only report the assault to the SARC, VA, or healthcare personnela HCP. However, consistent with current policy, they may also report the assault to a chaplain. Although a report to a chaplain is not a restricted report under this policy or the provisions of this Directive, it is a communication that may be protected under the Military Rules of Evidence (MRE) or applicable statutes and regulations. The restricted reporting process does not affect any privilege recognized under the MRE. This Directive and its policy on restricted reporting is in addition to the current protections afforded privileged communications with a chaplain, and does not alter or affect those protections.

E3.1.6.2.1. Healthcare personnelHCP will initiate the appropriate care and treatment, and report the sexual assault to the SARC instead of reporting the assault to law enforcement or the command. When notified of a reported sexual assault, the SARC will immediately assign a VA. The assigned VA will provide the victim accurate information on the reporting process, including both restricted and unrestricted reporting procedures. Additionally, at the victim’s discretion or request, the healthcare providerHCP, if appropriately trained and/or supervised, shall conduct a SAFE, which may include the collection of evidence. If the healthcare provider is not appropriately trained to conduct a SAFE, the healthcare providerHCP shall help arrange for a properly-trained DoD healthcare providerHCP, if available. In the absence of a DoD healthcare providerHCP, the victim will be appropriately referred to a non-DoD healthcare providerHCP for the SAFE. When SAFE is performed at local civilian medical facilities, those facilities are bound by State and local laws, which may require reporting the sexual assault. The victim will acknowledge, in writing, his or her understanding of restricted reporting, the exceptions to, and limitations on, restricted reporting. This acknowledgement will also include the victim’s understanding that restricted reporting may limit the ability of the Government to prosecute the assailant and an understanding of the reasons DoD policy favors unrestricted reporting.

ENCLOSURE 3

E3.1.6.2.2. Restricted reporting is intended to give victims additional time and increased control over the release and management of their personal information, and to empower them to seek relevant information and support to make more informed decisions about participating in the criminal investigation. A victim who receives appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation, is more likely to develop increased trust that his or her needs are of primary concern to the command and may eventually lead the victim to decide to pursue an official investigation. Even if the victim chooses not to pursue an official investigation, this additional reporting avenue gives the senior commander a clearer picture of the sexual violence within the command, and enhances the senior commander’s ability to provide a safe environment and contributes to the well-being and mission-readiness of all of its sService members.

E3.1.7. In cases where a victim elects restricted reporting, the SARC, assigned VA (whether uniformed or civilian), and healthcare personnelHCPs may not disclose covered communications to law enforcement or command authorities, either within or outside the Department of Defense, except as provided in paragraph E3.1.8. For purposes of public safety and command responsibility, the SARC shall report information concerning sexual assault incidents, without information that could reasonably lead to personal identification of the victim or the alleged assailant, to the senior commander (see paragraph E2.1.10.) within 24 hours of the sexual assault report.

Sex Assault Court Martial Lawyer Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Army Policy, DoD Guidance, Regulations, and Memorandums

Army Court Martial Lawyer – Navy Court Martial Attorney – Air Force Military Lawyer

The Sexual Assault Prevention and Response Program reinforces the Army’s commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those who commit these crimes.

The goals of the Sexual Assault Prevention and Response Program are:

Create a climate that minimizes sexual assault incidents, which impact Army personnel, Army civilians, and family members, and, if an incident should occur, ensure that victims and subjects are treated according to Army policy.
Create a climate that encourages victims to report incidents of sexual assault without fear.
Establish sexual assault prevention training and awareness programs to educate Soldiers.
Ensure sensitive and comprehensive treatment to restore victims’ health and well-being.
Ensure leaders understand their roles and responsibilities regarding response to sexual assault victims, thoroughly investigate allegations of sexual assault, and take appropriate administrative and disciplinary action.

Marine Court Martial Lawyer
Court Martial Lawyer Sexual Assault

Court Martial Lawyer Sex Assault Defense Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Sex Assault Court Martial Lawyer – Validity of Discharge Certificate

The issue of validity of discharge certificate has been discussed in Schaefer v. Geren, 607 F. Supp. 2d 61 (D.C. 2009). The Court had to decide whether the ABCMR acted arbitrarily, capriciously, and against the law when it concluded that Schaefers first discharge was without legal effect. The Court found that the ABCMR did not act arbitrarily, capriciously, or contrary to law when it concluded that Schaefers first discharge was without legal effect as the USADPA revoked the authority to issue the discharge prior to Schaefer got the discharge certificate. Schaefer, citing Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997), argued that because he received a facially valid discharge certificate that was not revoked until after his discharge, the Army had to bear the burden of any administrative errors ‚ in this case, the error involving the computer notification system. In Vanderbush, as in this case, the Army intended to flag the Soldiers personnel file, but failed to do so.

The Schaefer court distinguished Vanderbush, observing that in that case the underlying basis of Sergeant Vanderbushs administrative discharge (received before his adjudged punitive discharge was executed) was valid; that is, he had reached his ETS date and his service obligation had ended. In contrast, the Court observed that in Schaefers case the Army (through USAPDA) revoked the authority for Schaefers first discharge well before the Fort Benning transition point issued him his discharge certificate. The Court ruled: When the underlying authority for the discharge is timely revoked, and error in delivering a discharge certificate does not effectuate a valid discharge. citing United States v. Williams.

Michael Waddington is a Court Martial Lawyer that defends Army, Air Force, Navy and Marines worldwide in court martial cases.

 An ideal lawyer won’t just have a chain of impressive certifications or gold lettering on his entrance. He or she tend to be responsible, concerned, and devoted to their job. You must think cautiously prior to placing your trust in a lawyer, after all in some circumstances your lifestyle, future, cash or real estate are going to be in his hands.

Aside from undertaking extensive research to narrow down potential lawyers, you must make sure that there is not conflict of interest, that you recognize everything the retainer agreement indicates, and that you have investigated the recommendations and particulars related to the practice.

You will know the law firm you have chosen is the right one if:

1.    He makes an attempt to spend time to understand your case himself. He will never assign a legal assistant to take facts of the case down.

2.    From skills and know-how he will be aware of what is pertinent and what is not. He will set aside and overlook irrelevant facts, opinions, and private thoughts that cloud the case on hand.

3.    He will advocate that the footwork for the case be executed completely. All facts must be examined for legitimacy and sound justifications jotted down with backing of earlier rulings.

4.    He isn’t going to simply converge on the difficulty at hand but study the challenge from every angle. This will provide a total picture highlighting all variables of importance and the distinctive ways one can handle the case.

5.    He will use his foresight and assume strikes by the opposition or views of the jury or judge and set up way ahead. Like a master chess player he will plan the case not by the day but by quite a few hearings ahead.

6.    He will never lose time beating around the bush or produce chatty claims. He will urge upon that the case and its arguments be undeniably concluded.

7.    He will be self-disciplined, absolute, and assured. considerate at all times he will accept you as well as all the team members who work for him.

8.    He is advocated by not just his friends and family members, but by various other professionals of good standing and from his field.

9.    He isn’t going to just show you his wins but be happy to tell you why and how he lost certain cases.

10.    He will lay the cards on the table and tell you clearly whether your case stands to win or lose. He will never say that winning is sure. He will be sincere and upfront about his ideas and suggestions.

The truth is that the attorney must be worthy of your trust. Use your innate senses and don’t go by the lawyer’s good looks or fancy car or office. In the end, it is ability in law and in court that is of essence to you.

- Attorney St Louis