New Military Issues Under President Re-Elect Obama

With Barack Obama's victory comes some important possible changes to the military that may or may not have an effect on you as a service member or veteran. The President plans to cut close to $500 billion in spending over the next ten years, and intends to pursue a full withdrawal from Afghanistan by 2014.

The President also plans to keep a strong vigil on seeing an end to DOMA (Defense of Marriage Act). In overturning this act, he further hopes to open services that have previously been reserved for heterosexual couples such as access to health care and Veterans' benefits, to homosexual couples as well.

As a veteran, you may look forward to increased access to housing, better mental health services, health care, and other veteran benefits. A proposed plan would employ more qualified mental health professionals and help alleviate the staggering unemployment faced by many veterans returning to civilian life.

If you would like more detailed information about the changes that may occur under President Obama's plan, the original article located HERE has more information.

If you are a service member who needs assistance with a military criminal defense matter in RI, contact Criminal Defense Attorney John L. Calcagni now at (401) 351-5100 for a free consultation or more information.

Military Suicide Statute Gets Reviewed

As the suicide rate climbs among American service members, a decades-old statute that makes attempted suicide a military crime will be reconsidered for the first time since 1991 "when it was upheld". The statute was instituted during World War II as a way to deter troops who faked their suicides as a means to avoid duty.

A current case involving a former Marine who received a bad-conduct discharge as well as 180 days in the brig for his actual suicide attempt is being heard to determine the relevance of the old law when applied to the current military climate and the issue of deteriorating mental health among soldiers.

Defense lawyers in the case will seek to have the bad-conduct discharge dropped as the ruling prevents the individual from receiving mental health and other veterans benefits necessary to his recovery.

If you or someone you know needs help with a Military Criminal Defense issue, contact Criminal Defense Attorney John L. Calcagni now at (401) 351-5100 for a free consultation or more information.

To read the original article with the details of this case, click HERE

United States Military Academy (USMA) Cadet Sexual Assault Case Results

United States Military Academy (USMA) Cadet Charged with Sexual Assault: Not Guilty of a Sex Offense and Retained for Further Military Service.

The government charged a third-year student or Yearling at the United States Military Academy (USMA), West Point, New York, with multiple charges of sexual assault against a fellow cadet.  These charges were referred for trial by General Court-Martial.  The accused cadet offered to plead guilty to the lesser included, non-sex offense of Assault Consummated by Battery.  A military judge accepted this plea, and after a sentencing hearing, ordered that the cadet receive a written reprimand, but no further punishment.

The third-year cadet (hereinafter “the accused”) was alleged to have sexually assaulted another female cadet while on a class field trip.  The two cadets sat next to each other in the back row of a 12-passenger van.  The van was otherwise full of West Point Cadets and operated by a faculty member.  The two cadets, the accused and the victim, were no more than classmates and had only known each other for the academic semester.  They had no prior friendship or romantic relationship.  They also had never socialized outside of the classroom.  All of their interaction and communication was professional in nature and centered on their class.  On the date in question, the class to which they belonged took a day-long field trip from the West Point military academy to a nearby Buddhist monastery.  The accused and victim sat next to one another in the back row of the van both on the way to the monastery and on the return trip back to the academy.

All personnel on the van were asleep during the return trip except the driver and the accused.  The victim and accused sat next to one another in the rear of the van.  The accused sat to the left of the victim and closest to the window.  The victim, who was asleep, sat to the accused’s right.  Next to the victim, on her right, sat another female cadet who was also asleep.  The victim alleges that she woke up to find the accused’s hand inside the back pocket of her pants and caressing her buttocks.  She shifted her body away from him and towards the female cadet sleeping to her right without opening her eyes or saying a word.  She then alleged that she felt the accused’s hand caress her inner thigh.  In response, she sat up straight, but again did not open her eyes or say a word.  Lastly, she alleged that the accused attempted to place his hand in hers, but that she pulled her hand away.  After the van returned to the academy, the cadets parted ways without exchanging any words.

In the following days, the accused sent three separate emails to the victim.  In each message, he apologized for his conduct and sought the chance to apologize to her in person.  She never replied.  The accused also left a voice message on the victim’s cell phone, also seeking the chance to apologize in person; however, she never returned his call.  The victim reported what occurred on the van, as well as the accused’s follow-up communications, to her chain of command, an Army chaplain, and the Army Criminal Investigation Division (CID).  As a result, an investigation ensued.  Thereafter, the government charged the accused with three separate counts of Sexual Assault and referred these charges for trial by General Court-Martial.

The accused and his family hired experienced military Defense attorney, John L. Calcagni III, for representation in this unfortunate event.  Attorney Calcagni began his representation of the accused by acquiring and analyzing the strength of the government’s evidence against him.  The evidence consisted of the victim’s timely reports to the chaplain, chain of command, and CID; the accused’s admissions in his emails and voicemail to the victim; and an overall lack of motive or reason to fabricate by the victim.   After conducting a thorough review, Attorney Calcagni advised his client to enter into a plea agreement with the government, opposed to proceeding to a contested trial before either a military panel or a military judge.

Attorney Calcagni, with the accused’s permission, negotiated with the government regarding the terms of a pretrial agreement.  He successfully persuaded the government to agree to allow the accused to avoid a conviction of a sex offense.  Sex offense convictions and their resulting registration requirement are considered lifelong stigmas from which offenders are prejudiced and discriminated against by society.  Because of this, Attorney Calcagni’s primary objective, at the outset of his representation, was for his client to avoid a criminal conviction for a sex offense.  Attorney Calcagni convinced the government to allow the accused to plead guilty to the lesser included, non-sex offense, of Assault Consummated by Battery.  He also convinced the government that no matter the sentence to be imposed after trial, the General Court-Martial Convening Authority would not approve or impose a sentence against the accused, as it relates to confinement, in excess of ninety (90) days.  This agreement was reduced to writing and signed by the parties.

With a pretrial agreement in place, Attorney Calcagni’s next objective was to prepare a sentencing case on his client’s behalf that would place him in the best possible position to avoid jail and a punitive discharge (i.e. dismissal) from USMA, the U.S. Army and further military service.  Attorney Calcagni worked with his client to interview dozens of the accused’s supporters to include family members, many of whom were military service members; faculty members; fellow cadets, civilian friends; and the accused’s counselor to whom he self-referred for therapy following the assault.  Attorney Calcagni also traveled to West Virginia to spend time with and interview the accused’s family; to see where the accused lived and was raised; and to acquire other sentencing evidence.

Attorney Calcagni encountered a lot of love and compassion for the accused from all of his supports who were both males and females alike.  With the assistance of the accused and his many supporters, Attorney Calcagni assembled a large collection of sentencing evidence, which he compiled into a book or pamphlet known as a “Good Soldier Packet” for presentation to the Court.  The accused’s Good Solder Packet included statements of support; academic information, which showed the accused’s top performance and class rank (6 / 248) in high school; Dean’s List performance at USMA; and Commandant’s List at the United States Military Academy Prepatory School (USMAPS); military performance such as being the distinguished graduate at U.S. Army Basic Training and USMAPS; his counseling attendance; military awards; photographs; and other information.

On the day of the court-martial, which was before a military judge alone, the proceedings began with the guilt phase of the case of the proceedings.  The accused pleaded guilty to Assault Consummated by Battery without incident.  The military judge accepted his plea and proceeded to a sentencing hearing.

At a sentencing hearing, the government is allowed to first present evidence of aggravation regarding the accused’s offenses.  The Defense is allowed to challenge and rebut this evidence, as well as cross-examine government witnesses.  Once the government concludes it presentation of evidence, the Defense is then afforded the chance to offer evidence of extenuation and mitigation regarding the accused in general, as well as his offenses.  The government is allowed to challenge the Defense evidence and cross-examine witnesses.  Once the parties conclude their respective presentations of evidence, each side is allowed to make a sentencing argument to the Court.

In this case, as in all sentencing cases, the government began with its case of aggravation, which was comprised of two witnesses: the accused’s tactical officer or supervisor and the victim, both of whom Attorney Calcagni cross-examined.  The government first presented the supervisor who testified very briefly that in his opinion the accused’s military service had been poor.  On cross-examination by Attorney Calcagni, the supervisor admitted that he was unfamiliar with: the accused’s exceptional academic record and performance; the military awards he had received, to include Air Assault School and the German Proficiency Badge, both which the accused earned in the same summer; and his placement as distinguished honor graduate of both basic training and USMAPS.  The supervisor further admitted that most of his interactions with the accused involved the pending court-martial, which formed the basis of his biased opinion.

Next, the government presented the victim who testified about how the accused’s actions impacted her life.  She testified that as a result of his actions, she could no longer trust others to include men and fellow cadets.  She also testified how her intimate life with her fiancé had been destroyed, and that all aspects of her cadet life were adversely affected to include academics, leadership and athletics.  Attorney Calcagni cross-examined her to confirm that she never set verbal or physical boundaries for the accused after discovering his hand on her body; never replied to any of his apologies; had successfully graduated West Point since the incident, and even participated in competitive athletic events during the weekend of the assault; and lastly, that she found the accused’s personality to be quirky and nerdy.  The government offered no further evidence in aggravation.

Attorney Calcagni, on behalf of the accused, then presented the Defense case of extenuation and mitigation.  The Defense case consisted of a Good Soldier Packet, which is described above, and the testimony of six witnesses:  the accused’s father, a U.S. Army Sergeant First Class; the accused’s mother, a former Soldier; the accused’s sister, a U.S. Army Captain and West Point graduate; two field grade female officer faculty members from West Point; and the accused himself.  In essence, the family witnesses all testified that the accused was someone who embodied the Army Values, and had so embodied them long before joining the Army or attending West Point.  The witnesses also testified to the accused’s lifelong goal of joining the Army, which began when he was in junior high school, and later materialized with him enlisting and attending basic training as a high school student, and later matriculating at USMAPS and USMA. 

These witnesses all testified that the accused, though 20 years-old, have never had a girlfriend and had never been romantically, sexually or intimately involved with a woman.  The field grade officer, female faculty members described the accused as the consummate gentleman, but somewhat immature in terms of male-female relations.  Everyone testified that the accused made a serious mistake or lapse in judgment from which he had learned a great deal and had and had grown stronger.  They also opined that despite this sole instance of misconduct, the accused had the potential to still make an exceptional military officer if retained in the Army and at USMA.  The accused echoed the testimony of his witnesses and made an oral apology in open court to both the victim and all others whose lives were impacted by this case.  After the accused testified, the Defense concluded its case of extenuation and mitigation.

After the presentation of evidence, both parties presented argument and sentencing recommendations to the Court.  The government argued for a sentence consisting of six months of confinement and a dismissal from the U.S. Army and academy.  Attorney Calcagni artfully rebutted this argument and asked, in the alternative, for a written reprimand, but no jail or dismissal.  The Court then closed for deliberations.  The military judge returned nearly one and one-half hours later with her verdict and sentenced the accused to be reprimanded only – the sentence recommended by and argued for by Attorney Calcagni.  The military judge did not impose any confinement or a dismissal.  This outstanding result is considered a victory for the Defense.  Congratulations to this fine cadet and best of luck to him throughout his military career.

ROTC (Reserve Officer Training Corps) Disenrollment

 

Entering into any branch of the United States military is a long-term career choice for many people due to the wide variety of career fields to explore. This means that in some cases, the United States government will provide scholarships via the Reserve Officer Training Corps (ROTC) for those entering into officer ranks. One aspect of ROTC enrollment that many prospective officers are not aware of are the many consequences for failure.

Active-Duty members of the armed forces enrolled in ROTC may face "disenrollment" for poor academic performance, misconduct, and any other honor code violations. The most common violation is academic failure which may result in the student owing the cost of the education in full. While each branch of military handles the process its own way, they all require an investigation into the failure or misconduct and allow the cadet to challenge his or her disenrollment through restricted hearing procedures.

If you or someone you know needs help with a military criminal matter, contact Military Defense Attorney John L. Calcagni at (401) 351-5100 now for a free consultation and more information.

U.S. Army Recruiter Retained Following Administrative Separation Board

U.S. Army Sergeant First Class Recruiter, with 17 years of service, was referred for administrative separation from military service.  The Recruiter was alleged to have engaged in an inappropriate and unlawful relationship with a female recruit.  The Recruiter's Commander initiated an investigation into specific allegations the Recruiter unlawfully took the female recruit to parties; invited her to his home; spent time working out with her at a local civilian gym; and engaged in romantic relations together.  Once the recruit shipped off to basic training, the Recruiter allegedly maintained contact with her; assisted her with going AWOL; and stating lies and falsified documents to conceal the alleged misconduct.

The Commander's investigation yielded sufficient evidence, in the investigator's opinion, to substantive charges against the Recruiter for fraternizing with the recruit, making false official statements, and falsifying a leave/pass form.  The Recruiter was referred for Non-Judicial Punishment pursuant to Article 15, Uniform Code of Military Justice (UCMJ).  The Recruiter's Brigade Commander served as the Article 15 Hearing Officer.  After reviewing evidence presented by the government related to the charges, and "allegedly" reviewing exculpatory evidence submitted by the Recruiter in his behalf, the Article 15 Officer found the Recruiter guilty of all charges and specifications.  Thereafter, the Commander relieved the Recruiter from his recruiting position and referred him for administrative separation from the U.S. Army with a recommendation that his military service be characterized as Other Than Honorable (OTH).  The Recruiter demanded his right to an administrative separation board and hired Attorney John L. Calcagni III to represent him at this proceeding.

At the hearing, the government relied upon both the recruiter's Article 15 convictions and related evidence to support the government’s request that the Recruiter be discharged from military service with an OTH.  Attorney Calcagni delicately cross-examined each of three government witnesses, all whom testified that the Recruiter had committed inexcusable misconduct and therefore, should be separated from future military service.  However, each witness conceded on cross-examination that their opinions and recommendations were based in whole on the Recruiter’s Article 15 convictions.

In the Recruiter's defense, Attorney Calcagni and his military defense counsel counterpart, Captain Jason S. Ballard – with whom Calcagni has a longstanding working relationship and proven track record – called two character witnesses.  Both witnesses, former members of the Recruiter's chain of command, testified that the Recruiter was a flawless Non-Commissioned Officer, exceptional asset to the U.S. Army and recruiting community, and should be retained without question for future military service.  One character witness further testified that decisions to refer the Recruiter for both an Article 15 and administrative separation may have been product of a biased command climate.

Attorney Calcagni presented further evidence that challenged the integrity of the Recruiter's Article 15 hearing, as well as the reliability of government’s evidence relied upon by the Article 15 officer, especially when compared to overwhelming evidence that exculpated the Recruiter from any wrongdoing.  Attorney Calcagni – in a bold and brave manner – also challenged the credibility and veracity of the Recruiter’s chain of command, many of whom had made prejudicial remarks to recruiter before and during the Article 15 hearing; testified inconsistently with the evidence presented; and apparently engaged in coercion or other inappropriate actions during the course of investigation leading up to and following the Article 15 hearing.

After sworn testimony from the Recruiter himself, and a passionate and compelling closing argument by Attorney Calcagni claiming that "perception is not realty," "members in uniform are not impervious to human weaknesses of misrepresentation, bias, prejudice and self-interest,” and that the Recruiter was “entitled to a fair shake” both at the Article 15 hearing and at his separation hearing, the separation board members voted that the Recruiter did not engage in the thrust of the charged misconduct and should be retained for further military service  in his recruiting capacity.  Congratulations to this Soldier!

Ban on Gays in the Military Lifted by 9th Circuit

9th Circuit Bars Enforcement of ‘Don’t Ask, Don’t Tell’
Posted Jul 7, 2011 7:32 AM CDT
By Debra Cassens Weiss

A federal appeals panel has issued an order that bars the government from enforcing its "don’t ask, don’t tell" policy on gays in the military.

The San Francisco-based 9th U.S. Court of Appeals acted on Wednesday in a case involving a constitutional challenge to the policy, report the New York Times and the Recorder.

A federal judge had found the don’t ask, don’t tell policy unconstitutional in October and barred enforcement. A month later the 9th U.S. Circuit Court of Appeals stayed the judge’s injunction, allowing the government to continue enforcing its policy. Yesterday’s order lifts the stay.

The appellate panel noted two changed circumstances since it issued the stay last November, the stories say.

First, a repeal of the policy is already under way. Second, the Obama administration took the position in a different case on Friday that sexual orientation classifications should be subject to heightened scrutiny. The other case involves a 9th Circuit staff lawyer seeking health insurance coverage for her wife, the Recorder reports.

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The Law Office of John L. Calcagni III offers clients representation in the areas of Criminal Defense, Military Defense, Federal Criminal Defense, OUI Defense in MA , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

Former Defense Secretary Subject of Lawsuit

Judge OKs Army Vet’s Suit Against Rumsfeld Over Torture Allegations

Posted Aug 4, 2011 6:10 AM CDT
By Molly McDonough

A federal judge this week allowed the case of an Army veteran who claims he was imprisoned and tortured by U.S. military in Iraq to move forward against former Defense Secretary Donald Rumsfeld.

The vet, who isn't identified in court documents, was working as a contractor for an American company as a translator in Anbar province when he claims he was inexplicably detained for nine months at Camp Cropper near Baghdad, the Associated Press reports.

The government reportedly suspected the man of helping pass classified information to the enemy. But he was never charged and released as suddenly as he was detained.

Citing court filings, the AP reports that the man's federal suit alleges Rumsfeld personally approved torturous interrogation techniques on a case-by-case basis and violated his rights by not allowing him access to courts.

In his opinion (PDF), U.S. District Judge James Gwin of the District of Columbia, held that Americans have continuing rights to constitutional protections at home or abroad.




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The Law Office of John L. Calcagni III offers clients representation in the areas of Criminal Defense, Military Defense, Federal Criminal Defense, OUI Defense in MA , and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.

Soldier Convicted of Self Inflicted Injury Charges

Military Criminal Defense Attorney Calcagni posts the following article concerning a client who was court marshaled and charged with solicitation to commit aggravated assault, intentionally inflicting self-injury and conspiracy. Attorney Calcagni was able to secure a favorable result for the client.

The full article follows below.

Benning soldier convicted of having self shot

The Associated Press
Posted : Wednesday Sep 15, 2010 10:09:47 EDT

FORT BENNING, Ga. — A Fort Benning soldier was convicted of charges that involved having a fellow recruit shoot him in the leg so he could get a medical discharge from the Army.

Pvt. Jonne T. Wegley was convicted Monday at a court-martial on charges that included solicitation to commit aggravated assault, intentionally inflicting self-injury and conspiracy. He was acquitted of maiming.

Wegley was sentenced to four months' confinement and a dishonorable discharge. Prosecutors had asked for three years in prison and a bad conduct discharge.

The Columbus Ledger-Enquirer reported that William M. Hudgins, who served with Wegley during basic training last year, testified that Wegley offered him $5,000 and a job in exchange for shooting him.

Hudgins said the plan was for him to hide a round in his boot while the two were on the firing range. Then they would walk into a nearby wooded area and Hudgins would shoot Wegley in the left leg. He testified Monday that Wegley gave him $102 as a down payment.

"Private Wegley is a self-serving individual willing to do anything to get out of the Army," said Capt. Caitlin Chiaramonte, the prosecuting attorney. "Private Wegley not only ruined his career, but Mr. Hudgins' career."

Wegley's attorney, Maj. John Calcagni, said Wegley could have gotten out by refusing to train. "This story doesn't make any sense," he said. "He said that Wegley was going to pay him $5,000. Where does a private E-1 get that kind of money?"

Prosecutors argued that Wegley was depressed. His brother had been seriously injured and was in the hospital, and his girlfriend had aborted their child and found proof of him cheating on her.

Hudgins was convicted earlier and served 10 months in confinement.
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The Law Office of John L. Calcagni III offers clients representation in the areas of Criminal Defense, Military Defense, Federal Criminal Defense, OUI Defense in MA Personal Injury, and Assault and Battery matters. John L. Calcagni, III is licensed to practice in state and federal courts in the States of Rhode Island, Connecticut, New York, Florida, and the Commonwealth of Massachusetts.

Please call (401) 351-5100 to arrange for a free consultation about your case. If you cannot make it to one of our offices, we will to come to your home or detention center.