OPLAW and Core Legal Disciplines Supporting Army Operationss
The last chapter described legal organizations supporting operations, and how SJAs tailor, or task organize, to provide legal support to operations. This chapter describes OPLAW and the core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) that Army legal organizations provide. Subsequent chapters will provide information about legal support to specific types of military operations.
As discussed in the previous chapter, legal support to each operation must consider the organization's mission-specific requirements, and include legal support in OPLAW and each core legal discipline. OPLAW and the core legal disciplines contribute directly to the command and control (C2), sustainment, and personnel service support required by the organization. Different aspects of a core legal discipline may support C2, sustainment, or personnel service support. For example, foreign claims are a sustainment function, while personnel claims are personnel service support. It is important that SJAs tailor legal support (OPLAW and core legal disciplines) to the organization's mission-specific requirements. Therefore, this chapter will describe OPLAW and the core legal disciplines, what tasks are performed, where they are performed, and how they support each phase of an operation from premobilization through demobilization.
OPLAW is that body of domestic, foreign, and international law that directly affects the conduct of operations.
OPLAW supports the command and control of military operations, to include the military decision-making process and the conduct of operations. OPLAW supports the military decision-making process by performing mission analysis, preparing legal estimates, designing the operational legal support architecture, wargaming, writing legal annexes, assisting in the development and training of Rules of Engagement (ROE), and reviewing plans and orders. OPLAW supports the conduct of operations by maintaining situational awareness, and advising and assisting with targeting, ROE implementation, and information operations. OPLAW also involves the provision of core legal disciplines that sustain the force.
SJAs normally provide OPLAW support at each Brigade Headquarters (Main CP), and at each key operational cell at every higher level of command (TAC CP, Main CP, Rear CP, G-3 Plans, G-3 Operations, Information Operations, and Targeting Cell). OPLAW support is also provided at each joint and multinational headquarters. Some missions will also require OPLAW support at battalion level, or in specialized units or operational cells. This is increasingly the case in peace operations and disaster relief.
As OPLAW directly affects the conduct of military operations, its tasks must generally be performed throughout all phases of any operation, from before mobilization through demobilization. Nevertheless, the OPLAW Judge Advocate's (OPLAW JA's) focus will change during these phases. The focus during premobilization, mobilization, and predeployment will be on OPLAW military decision-making functions. The focus shifts toward tasks related to the conduct of operations from deployment through demobilization. During all phases, however, the OPLAW JA must provide or facilitate support in core legal disciplines required to sustain the organization.
Before mobilization, OPLAW JAs and legal specialists should conduct contingency planning, deployment preparation, and training. OPLAW JAs must proactively develop staff skills and relationships at all times, not merely before deployment. Deployment preparation, a cooperative effort between the OPLAW JA, the CLNCO, the Legal Administrator, and other key personnel, should include developing SOPs, identifying deploying personnel, marshaling resources, and establishing liaisons. Training before mobilization should develop legal personnel in their soldiering and legal skills, provide mission-related legal information to unit personnel, integrate legal personnel into unit training events, and establish relationships with reserve component legal personnel who will support legal operations upon mobilization.
During mobilization and predeployment, OPLAW JAs, with the assistance of legal specialists, should receive and integrate mobilized legal personnel who are supporting deploying and non-deploying units; conduct mission briefings for deploying personnel regarding ROE, general orders, code of conduct, law of war, and other appropriate legal topics; conduct final mission planning; and coordinate legal support for individual deployment readiness.
During deployment and entry, OPLAW tasks related to the conduct of operations become more critical. OPLAW JAs must maintain situational awareness to provide effective advice about targeting, ROE, and legal aspects of current operations (including information operations). For this reason, judge advocates should deploy with their RDLs, vehicles, radios, and global positioning devices in a sequence that ensures their presence in key operational cells at all times. Deploying legal specialists help the OPLAW JA maintain situational awareness during the operation by attending briefings, monitoring email traffic, tracking the battle, and providing other required assistance. Upon entry, OPLAW JAs must organize and coordinate the delivery of legal services in all core legal disciplines in accordance with the legal annex to the OPLAN or OPORD. Finally, even during fast-paced operations, OPLAW JAs must continue to perform OPLAW military decision-making process functions in support of the staff's operational planning.
During redeployment and demobilization, OPLAW JAs and legal specialists must perform several recovery tasks: assist the redeployment of legal personnel and equipment, participate in the command's after-action reviews and lessons learned processes, and catalogue and retain legal files and journals. SJAs should forward after action reports and all pertinent legal documents, memoranda, email, et cetera, to the CLAMO, and integrate them into future contingency planning, deployment preparations, and training.
3.3 MILITARY JUSTICE
Military justice is the administration of the Uniform Code of Military Justice (UCMJ), and the disposition of alleged violations by judicial (courts-martial) or nonjudicial (Article 15, UCMJ) means. The purpose of military justice, as a part of military law, is "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."49
TJAG is "responsible for the overall supervision and administration of military justice within the Army."50 The commander is responsible for the administration of military justice in the unit, and must communicate directly with the SJA about military justice matters.51
There are three components of military justice, each with its distinct functions. First, the SJA is responsible for military justice advice and services to the command. The SJA advises commanders concerning the administration of justice, the disposition of alleged offenses, appeals of nonjudicial punishment, and action on court-martial findings and sentences.52 The SJA supervises the administration and prosecution of courts-martial, preparation of records of trial, the victim-witness assistance program, and military justice training.53
Second, the Chief, United States Army Trial Defense Service "exercises supervision, control, and direction of defense counsel services in the Army."54 Judge advocates assigned to the Trial Defense Service advise soldiers and represent soldiers before courts-martial. These judge advocates also represent soldiers in adverse administrative hearings.
Third, the Chief Trial Judge, United States Army Trial Judiciary provides military judges for general and special courts-martial, supervises military judges, promulgates rules of court, and supervises the military magistrate program.55 Military Judges assigned to the Trial Judiciary preside over courts-martial, exercise judicial independence in the conduct of courts-martial, conduct training sessions for trial and defense counsel, and perform or supervise military magistrate functions.56 Military magistrate functions include the review of pretrial confinement and confinement pending the outcome of foreign criminal charges; and the issuance of search, seizure, or apprehension authorizations.57
Military justice services are semi-centralized to facilitate timely, efficient delivery. Normally, courts-martial are processed at theater, corps, division, or other headquarters commanded by a general court-martial convening authority. Joint Force Commanders, and Army Brigade and Battalion Commanders also have court-martial convening authority, and may require support to conduct courts-martial. Trials may be held at the main or rear command post. The convening authority may designate where the court-martial will meet IAW Rules for Courts-Martial (RCM) 504(d) and RCM 906(b)(11) and consistent with rulings of the military judge. SJAs provide military justice advice to general court-martial convening authorities, including Joint Force Commanders with general court-martial authority. Other judge advocates provide military justice advice to subordinate commanders. Legal specialists in battalion, squadron, and higher headquarters prepare and manage military justice actions, and provide other technical legal and administrative support for military justice. As the situation requires, LSTs specializing in criminal law may assist theater, corps, or division military justice operations. In multinational organizations, each troop contributing nation is responsible for the discipline of its military personnel. Thus, the U.S. element of the multinational organization will require military justice support.
Trial defense and judiciary services are provided on an area basis under the independent supervision and control of the U.S. Army Trial Defense Service and U.S. Army Trial Judiciary, respectively. Trial Defense Counsel will normally be located with SJA sections at theater, corps, and division, from where they travel throughout the operational area to provide advice and services as far forward as required. Military Judges are normally collocated with SJA sections at theater, corps, and division, depending upon judicial workloads. As the situation requires, LSTs specializing in trial defense or judiciary services assist wherever needed in the theater. The Chief, U.S. Army Trial Defense Service, and Chief Trial Judge, U.S. Army Trial Judiciary, supervise Defense Teams and Military Judge Teams, respectively.
Military justice support must transition through the phases of military operations smoothly, providing continuity in jurisdiction and responsive support to the deployment theater and home station. Critical to success are prior planning, mission training, and staff augmentation.
, the primary focus is planning. The SJA's planning for military justice operations should include the preparation of key personnel for deployment, the identification and marshaling of resources and personnel to support split-based operations, the identification and alignment of court-martial convening authorities, the guidance for disposing of pending cases upon deployment, the selection of court-martial panels in the deployment theater, the content of a general order for the operation, the strategy for supporting military justice in the deployment theater and at the home station, and the coordination of support for trial defense and judiciary services.58 The supporting Regional Defense Counsel (RDC) must develop an operation support strategy, prepare personnel for deployment, and marshal resources. Of particular importance are the RDC's plans for mobility in theater and technical supervision of deployed Defense Counsel. The supporting Chief Circuit Judge must likewise plan for operations.
During mobilization and predeployment, the SJA must execute the military justice transition and conduct mission training. Transition tasks may include aligning the convening authority structure for the deployment theater and home station, ensuring units and personnel are assigned or attached to the appropriate organization for the administration of military justice, requesting or accomplishing required designations of home station convening authorities, transferring individual cases to new convening authorities when necessary, and publishing a general order for the operation.59 Mission training will include briefings to deploying and home station commanders concerning military justice operations, and briefings to deploying soldiers concerning the terms of the general order for the operation.60
During deployment and entry, the SJA must ensure the military justice support arrangements are in place and operating properly. The SJA should ensure orders assigning units and personnel clearly indicate which commander has nonjudicial punishment and court-martial authority. Rear detachment commanders at the home station will require military justice training, which should emphasize the commander's authority and responsibility, and the prevention of unlawful command influence.61 Finally, the SJA should expect an increase in the home station military justice workload, and must ensure that resources are properly allocated between the deployment theater and home station.62
During redeployment and demobilization, the SJA transitions back to the original home station military justice structure. This will normally include returning to the original convening authority structure, ensuring units and personnel are assigned or attached back to the appropriate organization for the administration of military justice, revoking the designations of home station convening authorities established for the operation, transferring individual cases, and rescinding the general order for the operation.
3.4 INTERNATIONAL LAW
International law is the application of international agreements, international customary practices, and the general principles of law recognized by civilized nations to military operations and activities. Within the Army, the practice of international law also includes foreign law, comparative law, martial law, and domestic law affecting overseas, intelligence, security assistance, counter-drug, and civil assistance activities.63
The SJA's international law responsibilities include: implementation of the DoD Law of War (LOW) Program, including LOW training, advice concerning the application of the LOW (or other humanitarian law) to military operations, the determination of enemy prisoner of war (EPW) status, and supervision of war crime investigations and trials; assistance with international legal issues relating to U.S. forces overseas, including the legal basis for conducting operations, status of forces agreements, and the impact of foreign law on Army activities and personnel; the monitoring of foreign trials and confinement of Army military and civilian personnel and their dependents; assistance with legal issues in intelligence, security assistance, counter-drug, and civil assistance activities; advice to the command concerning the development of international agreements; and legal liaison with host or allied nation legal authorities.64
Normally, the SJA provides international law support at the main and rear command posts in Army of Excellence divisions and corps, and main command posts in Force XXI divisions and corps, TAACOM or TSC headquarters, Theater Army headquarters, and each joint and multinational headquarters. In addition, international law support may be required at brigade and battalion headquarters.
International Law tasks will vary from phase to phase, but are designed to ensure operational capability and support international legitimacy throughout all phases of an operation.
, international law planning is preeminent. The SJA and international law attorneys must thoroughly understand the contingency plan and the international law affecting the planned operation. They must ensure the contingency plan complies with international legal obligations, including obligations to EPWs and civilians. They must also identify and obtain relevant international agreements (e.g., status of forces agreements, exchanges of diplomatic notes, and acquisition and cross-servicing agreements), identify requirements for additional agreements, and forward these requirements through higher headquarters to the proper negotiation authority. International law planning objectives include informing the commander and staff of the international legal obligations on the force, minimizing legal obligations or their effects on the force, protecting the legal status of unit personnel, ensuring rights of transit, and providing responsive and economical host nation support. At the same time, international law attorneys are responsible for training unit personnel on the LOW and other international law affecting potential operations.
During mobilization and predeployment, establishing liaison and briefing deploying personnel are the principal international law tasks. The SJA should establish liaison with the International Committee of the Red Cross (ICRC), the country team for the area of operations, legal officials in the host nation, and other government, nongovernmental, international, and private voluntary organizations, as directed by the commander. The purposes of this liaison are to establish productive relationships that will help sustain the operation; coordinate the legal aspects of the deployment and entry; confirm understanding of agreements concerning status of forces,65 rights of transit, basing, and host nation support; and provide assurance of compliance with international legal requirements. Briefings to deploying personnel should cover the legal basis for the operation, the legal status of deploying personnel, relevant country law, guidance on the treatment of civilians in the area of operations,66 and the applicability of the LOW or other humanitarian law.
During deployment and entry, the SJA's principal international law tasks are advising the command and managing legal processes. These tasks require continuous liaison with the country team, host nation legal officials, the ICRC, and other agencies related to the operation; and effective integration into the headquarters staff. Advice to the command may involve the law of war, including advice to the EPW team; interpretation of international agreements; treatment of civilians or foreign diplomats; assistance to international organizations, U.S. or host nation government organizations, non-government organizations (NGOs), or private volunteer organizations (PVOs); civil affairs; and other international legal matters. Legal processes include the investigation and trial of war crimes, Article V tribunal proceedings, foreign criminal trials of U.S. personnel, foreign civil or administrative proceedings, and proceedings conducted under occupation or martial law.
During redeployment and demobilization, the SJA's international law priority is to resolve legal issues remaining from the deployment or relating to redeployment. Significant tasks may include coordinating the legal aspects of base closures, resolving host nation support issues, managing war crimes investigations, monitoring foreign criminal proceedings, and coordinating with the ICRC for repatriation of prisoners of war.3.5 ADMINISTRATIVE LAW
Administrative law is the body of law containing the statutes, regulations, and judicial decisions that govern the establishment, functioning, and command of military organizations. The practice of administrative law includes advice to commanders and litigation on behalf of the Army involving many specialized legal areas, including military personnel law, government information practices, investigations, relationships with private organizations, labor relations, civilian employment law, military installations, and government ethics.67
Administrative law attorneys perform the following functions: advise commanders, review actions, and litigate cases involving military personnel law; advise Army officials regarding their obligations under the Freedom of Information Act (FOIA) and Privacy Act; advise investigating officers, review investigations for legal sufficiency, and advise appointing authorities concerning investigative findings and recommendations; advise Army officials concerning support for and relationships with private organizations; advise Army officials concerning labor relations, including certifying and negotiating with labor unions, grievances and arbitration, and unfair labor practice allegations; advise Army officials concerning the recruiting, hiring, evaluating, and disciplining of employees, and represent the Army in litigation arising from employee grievances and discrimination complaints; advise installation commanders concerning the legal authorities applying to military installations; and advise Army personnel concerning government ethics, and supervise the command financial disclosure and ethics training programs.68
Administrative law support is usually provided at brigade headquarters, main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, COSCOM headquarters, and at each higher army, joint, and multinational headquarters. Because of the vast scope of issues they face, administrative law attorneys, especially, must be capable of conducting specific technical legal research and writing.
Administrative law support must be provided during all phases of an operation. The legal research capabilities and technical support structure must be robust to provide specialized legal knowledge and the flexibility to resolve different issues as an operation moves through its phases.
Before mobilization, administrative law attorneys must identify the issues likely to arise in the operation and provide policy guidance in the OPLAN. Consideration of the likely legal issues must take into account the participating organizations - joint, allied or coalition, international, non-governmental, and private. The plan should include policy guidance concerning access by non-DoD personnel to unit facilities and services.69
During mobilization and predeployment, administrative law attorneys must provide prompt guidance to commanders concerning military personnel issues that typically arise immediately before deployment, such as conscientious objection and family care plan failures.70 They should also brief deploying personnel concerning issues arising in the theater, e.g., family care plans and foreign gifts.71
During deployment and entry, administrative law attorneys will provide advice and assistance with the legal issues that arise in theater. They should be prepared to spend considerable time and effort on command investigations, as these may have a significant impact on the unit and mission.72 They must also, even in a deployed environment, supervise the government ethics program, including the filing of financial disclosure forms.73
During redeployment and demobilization, administrative law attorneys will assist with issues that arise, and will continue to manage the legal aspects of ongoing investigations and other actions as they redeploy to home station.3.6 CIVIL LAW
Civil law is the body of law containing the statutes, regulations, and judicial decisions that govern the rights and duties of military organizations and installations with regard to civil authorities. The practice of civil law includes contract law, fiscal law, environmental law, as well as many other specialized areas of law.74
Contract law is the application of domestic and international law to the acquisition of goods, services, and construction. The practice of contract law includes battlefield acquisition, contingency contracting, bid protests and contract dispute litigation, procurement fraud oversight, commercial activities, and acquisition and cross-servicing agreements.75
The SJA's contract law responsibilities include furnishing legal advice and assistance to procurement officials during all phases of the contracting process, overseeing an effective procurement fraud abatement program; and providing legal advice to the command concerning battlefield acquisition, contingency contracting, Logistics Civil Augmentation Program (LOGCAP), Acquisition and Cross-Servicing Agreements (ACSAs), the commercial activities program, and overseas real estate and construction.
Legal counsel must participate fully in the acquisition process, make themselves continuously available to their clients, involve themselves early in the contracting process, communicate closely with procurement officials and contract lawyers in the technical supervision chain, and provide legal and business advice as part of the contract management team.76 To accomplish this, SJAs usually provide contract law support at the main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, COSCOM, Theater Support Command Headquarters, and each higher army and joint headquarters. Contract law advice may also be required at brigade or battalion headquarters. SJAs should deploy a contract law attorney with contracting Early Entry Modules (EEM). OPLAW JAs supporting a DISCOM or COSCOM should be trained in contract law. Expertise may be required at the multinational command headquarters to advise concerning international acquisition agreements.
is the application of domestic statutes and regulations to the funding of military operations, and support to non-federal agencies and organizations.
The SJA's fiscal law responsibilities include furnishing legal advice on the proper use and expenditure of funds, interagency agreements for logistics support, security assistance, and support to non-federal agencies and organizations.
SJAs usually provide fiscal law support at the main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, DISCOM, COSCOM, TAACOM/ TSC headquarters, and each higher army and joint headquarters. Expertise may also be required at the multinational command headquarters to advise concerning international support agreements.
Environmental law is the body of law containing the statutes, regulations, and judicial decisions relating to Army activities affecting the environment to include navigable waters, near-shore and open waters and any other surface water, groundwater, drinking water supply, land surface or subsurface area, ambient air, vegetation, wildlife, and humans.77 Overseas, host nation law may also affect Army operations.
SJAs provide legal advice and services on all aspects of environmental matters, to include representing Army activities in environmental litigation and at hearings before local, state, or federal agencies in coordination with the Chief, Environmental Law Division, USALSA, and the Department of Justice (DoJ); monitoring state and federal environmental legislative and regulatory developments; providing advice concerning the appropriateness of any environmental enforcement activities; and reviewing all draft environmental orders, consent agreements, and settlements with Federal, state, or local regulatory officials before signature.78
SJAs usually provide environmental law support at the main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, DISCOM, COSCOM, Theater Support Command Headquarters, and each higher army and joint headquarters.
Civil lawyers must support all phases of an operation;79 nevertheless, the issues and requirements they face will change during each operational phase.
, planning and training are the primary concerns. Contract lawyers assist the planning for contracting by identifying the legal authorities for contracting, obtaining relevant acquisition agreements or requesting their negotiation, helping the contracting team to define requirements and to establish procurement procedures for the operation, and reviewing the contracting support plan for legal sufficiency. Fiscal lawyers assist the planning by identifying funding authorities supporting the mission. Environmental lawyers assist the planning by providing legal advice concerning environmental reviews and environmental requirements in the area of operations, and by reviewing plans to ensure plans address environmental law and policy requirements. The environmental plan should address policies and responsibilities to protect the environment, certification of local water sources, waste management, hazardous material management, protection of flora and fauna, archeological and historical preservation, and the base field spill plan.80
During mobilization and predeployment, support to the contracting and real estate EEMs is important. A contract lawyer should deploy with the contracting EEM; an environmental lawyer should deploy with the real estate EEM. In preparation for deployment, these judge advocates or civilian attorneys must marshal resources, assist the EEM's final coordination to include confirming warrants, funding sources and environmental legal requirements, and establish liaison with the country team in theater. Upon arrival in theater, the contract lawyer and environmental lawyer support the EEM missions of facilitating the deployment and entry of forces. The environmental lawyer should ensure an environmental survey is completed to provide a baseline against which later claims for damage may be assessed.81
During deployment and entry, civil law support must be responsive to force requirements. SJAs must plan for additional contract law and fiscal law support as the theater matures, because contracting and fiscal issues will increase in number and complexity.82 SJAs should encourage the use of Acquisition Review Boards, as these promote prudent management of resources and proactive resolution of logistical support issues.83 SJAs must maintain close coordination with the organization's environmental team and civil affairs section, and liaison with the country team and local environmental legal authorities.
During redeployment and demobilization, civil lawyers support force redeployment and close-out. Contracts for subsistence, temporary lodging, or transportation are required to allow logistics units to redeploy. During close-out, contract and environmental claims or disputes will arise. Civil lawyers help contracting and real estate officials resolve claims or disputes. When claims or disputes are not resolved, the civil lawyer will support the contracting and real estate personnel who are responsible for litigation.84 Civil lawyers are normally required until all forces leave the area, and therefore normally redeploy last. Even after redeployment, unresolved contracting and environmental issues may require legal support.
The Army Claims Program investigates, processes, adjudicates, and settles claims on behalf of and against the United States world-wide "under the authority conferred by statutes, regulations, international and interagency agreements, and DoD Directives."85 The Claims Program supports commanders by preventing distractions to the operation from claimants, promoting the morale of Army personnel by compensating them for property damage suffered incident to service, and promoting good will with the local population by providing compensation for personal injury or property damage caused by Army or DoD personnel.86 Categories of claims include claims for property damage of soldiers and other employees arising incident to service, torts alleged against Army or DoD personnel acting within the scope of employment, and claims by the United States against individuals who injure Army personnel or damage Army property. 87
The Secretary of the Army (SA) heads the Army Claims System.88 TJAG supervises the Army Claims Program and settles claims in accordance with delegated authority from the SA.89 The U.S. Army Claims Service (USARCS) administers the Army Claims Program and designates area claims offices, claims processing offices, and claims attorneys.90 SJAs, or other supervisory judge advocates, operate each command's claims program and supervise the area claims office (ACO) or claims processing office (CPO) designated by USARCS for the command.91 ACOs and CPOs are the normal claims offices at Army installations that investigate, process, adjudicate, and settle claims against the United States; and identify, investigate, and assert claims on behalf of the United States.92 Claims attorneys at each level settle claims within delegated authority and forward claims exceeding that authority to the appropriate settlement authority.93
Claims must be investigated and paid in an area of operations.94 In multinational operations, unless otherwise specified in applicable agreements, a troop contributing nation is generally responsible to resolve claims arising from its own operations. Foreign claims against the U.S. will normally be resolved by the service assigned claims responsibility for the area. Claims attorneys should consult DoD Directive 5515.8, Single-Service Assignment of Responsibility for Processing of Claims (June 1990). U.S. personnel claims will normally be resolved by the parent service. Army claims services are normally provided in the main or rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, the Theater Support Command headquarters, and Theater Army headquarters. While claims services are centrally processed at these locations, claims personnel must travel throughout the area of operations to investigate, negotiate, and settle claims.
Before mobilization, commanders should appoint unit claims officers (UCO); UCOs document and report incidents to claims offices that might result in a claim by or against the United States.95 The SJA and Chief of Claims should develop the claims architecture for the planned operation, and provide training for deployable claims attorneys, legal specialists, and UCOs. The claims architecture should prescribe the technical chain of claims authority, identify additional required claims processing offices or foreign claims commissions, and describe the claims procedures applying during the operation. Claims architecture planning factors include the type and duration of deployment, the area to which deployed, the existence of international agreements governing the presence of U.S. personnel and the processing of claims, host nation law, and service claims responsibility for the area.96 Claims procedures should describe how claims are received, investigated, processed, adjudicated, and paid.97 Training for claims personnel should cover foreign claims procedures, prevention of property damage and personal injury, investigative techniques, and documentation of preexisting damage.98
During mobilization and predeployment, SJAs and Chiefs of Claims should provide preventive law advice concerning home station storage of personal property, and information briefings to deploying personnel about theater claims policies, including policies concerning any types or amounts of personal property for which compensation will not be paid. SJAs and Chiefs of Claims should also coordinate with USARCS to facilitate the appointment of Foreign Claims Commissions or Claims Processing Offices.99
During deployment and entry, claims personnel establish the claims operation and perform claims services. When establishing the claims operation, the senior claims attorney in theater should inform host nation authorities how claims will be processed, provide information to the local population about claims procedures, and obtain translation services and local legal advice.100 Critical at this point are efforts by claims personnel and UCOs to document the existing condition of base camps, unit locations, or transportation routes; good documentation at the beginning of an operation will enable accurate payment of legitimate claims and prevent payment of fraudulent or inflated claims.101 The digital camera that is a component of the RDL is very useful for this purpose. When performing claims services, the senior claims attorney should coordinate with UCOs to assist them with claims investigations; with Civil Military Operations (CMO) to facilitate liaison with local officials, learn about local customs, and provide CMO personnel information about claims procedures; and with military police and military intelligence personnel to share information.102 Throughout the operation, claims personnel must travel throughout the area of operations to receive, investigate, and pay claims.103
During redeployment and demobilization, the senior claims attorney must ensure all filed claims are paid, closed, or transferred to a claims office with post-deployment responsibility for the area. Claims personnel at home station must be prepared to receive and process claims by deployed personnel for damage to property damaged in storage during deployment.
3.8 LEGAL ASSISTANCE
Wherever you have judge advocates among soldiers, you will have the practice of Legal Assistance.104
|Captain Nicole Farmer|
Legal assistance is the provision of personal civil legal services to soldiers, their family members, and other eligible personnel.105 The mission of the Army Legal Assistance Program is "to assist those eligible for legal assistance with their personal legal affairs in a timely and professional manner by - (1) Meeting their needs for help and information on legal matters; and (2) Resolving their personal legal problems whenever possible."106 "From an operational standpoint, the mission of legal assistance is to ensure that the soldiers' personal legal affairs are in order prior to deployment, and then, in the deployment location, to meet the soldiers' legal assistance needs as quickly and as efficiently as possible."107 The Army Legal Assistance Program promotes morale and discipline, and thereby contributes directly to mission accomplishment.
Legal assistance attorneys, and legal staff working under their supervision, provide legal assistance in a variety of settings, including combat readiness exercises, premobilization legal preparation (PLP), soldier readiness program processing (SRP), demobilization briefings, noncombatant evacuation operations, client interviews, informal requests for assistance, federal and state income tax assistance, and preventive law programs.108 They provide extensive legal services: ministerial and notary services, legal counseling, legal correspondence, negotiation, legal document preparation and filing, limited in-court representation, legal referrals, and mediation.109 They handle a wide variety of cases: family law, estates, real property, personal property, economic, civilian and military administrative matters, torts, taxes, and civilian criminal matters.110
Legal assistance is provided at the Theater Army headquarters, Theater Support Command headquarters, main and rear command posts in Army of Excellence divisions and corps, and main command posts in Force XXI divisions and corps, and as required at brigade or lower echelons.111 While each service and each troop contributing nation is responsible to provide legal assistance for its personnel, some legal assistance may be required at joint or multinational headquarters.
, active and reserve component SJAs should conduct regular and proactive preventive law programs, resolve legal concerns of soldiers, their families, and other eligible personnel prior to deployment, and plan for mobilization and deployment processing. In conducting such programs, SJAs should coordinate with and involve the reserve component judge advocates (such as MSO JAGSOs or the judge advocate sections of GSUs) which will be assigned to assist their organizations upon mobilization, or with whom they have developed training associations. Preventive law programs provide information to service members and families that enable them to avoid legal problems, or to identify concerns and seek prompt assistance.112 Regular SRP processing, along with reserve component PLP, ensures soldiers and emergency-essential civilian employees have their legal affairs in order and are prepared for deployment. Because legal needs may not be met upon deployment, SJAs must plan to provide legal assistance to large numbers of personnel preparing to deploy. SJAs must also plan to provide legal assistance to personnel in the deployment theater and family members at home station, mobilization stations, or elsewhere during the operation.113 The MSOs and the judge advocate sections of the GSUs described in Chapter 2 provide SJAs the capability to provide this surge and sustainment legal assistance.
During mobilization and predeployment, the SJA and Chief of Legal Assistance should manage SRP processing, coordinate with the local bar and courts concerning current legal assistance issues or stays required by the mobilization or deployment, provide legal assistance briefings for family members, and resolve as many legal concerns as possible before deployment.114 SRP processing should review, at a minimum, Soldiers' Group Life Insurance (SGLI) beneficiary designations, requirements for wills or powers of attorney, the existence of Soldiers and Sailors Civil Relief Act issues or any pending civilian or military charges, the receipt of Geneva Convention briefings, and family care plan concerns.115 Providing advance SRP packets to deploying soldiers enables them to consider their legal needs in advance, to come to the SRP with the information needed to process efficiently, and to leave with the legal products and advice they require.116
During deployment and entry, SJAs must provide legal assistance both in the deployment theater and at home station. Due to the special attorney-client relationship and the possibility of conflicting interests between commanders and soldiers, the SJA generally designates specific judge advocates as legal assistance attorneys. Because of the increased demand for legal assistance services during deployments, the SJA may allow judge advocates who are not legal assistance attorneys to provide legal assistance services when consistent with professional standards. The SJA will rely heavily on the judge advocates assigned to GSU supporting the installation and the MSO supporting the deployment. Also, the SJA may seek support from the Senior Defense Counsel, who may assign Trial Defense Counsel to provide legal assistance consistent with the Trial Defense mission.117 In theater, legal assistance attorneys should be prepared to resolve the full range of legal assistance cases, and to provide federal and state income tax assistance.118 The Chief of Legal Assistance in theater, should establish liaison with the U.S. Consulate, and ensure effective communication and courier service between legal assistance offices in theater and home station.119 At home station, in addition to providing legal assistance to the home station, the legal assistance office must provide required assistance to deployed legal assistance attorneys and provide legal assistance briefings to family members.120
During redeployment and demobilization, the SJA and Chief of Legal Assistance must resolve legal assistance matters in the deployment theater, or coordinate to ensure they are resolved after redeployment, and resolve matters at home station that arose or remained unresolved during the operation.3.9 SUMMARY
The JAGC provides comprehensive legal support to operations across the spectrum and throughout all phases of military operations. Staff Judge Advocates ensure OPLAW and core legal disciplinary support at each level of command from the theater through brigade, and at lower echelons as required. This chapter described, in general terms, what legal support is provided. The following chapters will describe how legal support is provided to specific types of operations.
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