Trial Defense Services, California Army National Guard

TDS continues to assist all CA Guard Soldiers with all Military Actions.

If you have a nonmilitary legal matter and would like to CONSULT with legal assistance, please go to https://www.ca-jag.us/

If you have behavioral health concerns and it is an emergency please call 988 immediately. Other behavioral health officers are available throughout the state and can be found at http://cal guard.ca.gov/bh/ or by contacting TDS asking for a POC directly.

Form | LSC Legal Assistance Legal AssistanceCALIFORNIA STATE GUARDLEGAL SUPPORT COMMANDCol. (CA) John Wallace – CommanderMAJ (CA) John Beckman – Chief, Legal AssistanceCPT (CA) John Laurie – Deputy Chief, Legal AssistanceA primary mission of the Legal Support Command is to serve uniformed members of the California Milita...

New link: https://Calguard.ca.gov/TrialDefense/

Trial – Cal Guard State of California

The California Guard is going through a website shift and the link is down. Please call (916) 854-1236 if you are in need of assistance during this transition time.

Soldier Care:
If you are in ANY branch of the military and cannot find help for your legal issues, please feel free to contact us and we will try our best to find you the correct point of contact.

SEPARATION INFORMATION SHEET

This is basic, general information regarding the separations process and your options. After reading, speak with you Trial Defense Service counsel on your specific situation.

Documents You Should Have:
You must have a copy of your notification of separation packet. This is your right under AR 135-178, to include:
- You must also have a signed copy of the notification of separation by the commander. If you do not have a copy, notify TDS personnel immediately
- You must also have completed your mental and physical evaluation (if applicable)
Important Items of General Interest

This separation action is administrative in nature and not a formal disciplinary procedure like a courts-martial or article 15. It your commands way of recommending you leave the service prior to the end of your current enlistment.

There are many reasons for why a Soldier may be involuntarily separated/chaptered. All chapters require factual basis that satisfy the requirements of the regulation. If you have any questions about this, speak to your Trial Defense Service personnel.

If you are separated, you will receive one of three characterizations of service:

Honorable – when quality of Soldiers service has met the standards of acceptable conduct. Soldier is entitled to all VA benefits

General, Under Honorable Conditions – Satisfactory military records. Entitled to all benefits, except GI Bill or education benefits from the VA

Other than Honorable: Only allowed for Misconduct (CH 12: Drugs; Civilian Conviction; Serious Criminal Offense) AWOL; and Fraudulent Entry. Will lose most benefits

A Soldiers entire career will be taken into account before characterization of service is recommended by your commander.

You are Entitled to a Separation Board if:
- You have more six years of active and reserve service at the time you were notified OR
- An Other than Honorable Discharge is possible
***Note: if the command wants to separate you and you have less than 6 years of service and the command is not seeking an Other than Honorable, you are NOT entitled to a separation board.

Whether you are entitled to a board or not:
1. You will be assigned a TDS Judge Advocate to assist you with your case, at no charge.
***Note: you may obtain private, civilian counsel at your own expense.
2. You will need to need to decide what, if any, evidence you want the chain of command to consider prior to making a recommendation. You can make a personal statement; submit documentation in support of good service i.e. awards; certificates of appreciation; character statements from peers; letters from family and friends, etc. anything that you submit should be consistent with the desires you expressed to the command. For Example, if you want to be separated with the General discharge, you should not have letters expressing your wish to stay in the Army.

Options For Soldiers Entitled To A Board:

Option 1: Waive the board. If you are content with separation from the National Guard and the proposed characterization of service, you may want to waive the board.

Option 2: Conditionally Waive the board. Scenario: if your command wants to separate you with an Other than Honorable discharge, you can conditionally waive your right to a board provided that you receive a General or Honorable conditions discharge.

Option 3: Elect and attend the administration separation board. Trial Defense Service will represent you in a formal proceeding
Speak to your Trial Defense Service personnel before you make a decision.

Board Composition:

The board will contain at least three members. If an Other than Honorable discharge is recommended, all members must be officers. They determine whether a factual basis for the separation exist. If they find a basis, they determine whether or not you should be separated from the army. If they find you should be separated, then they will determine the characterization of service.

Other things to know:
- Get a copy of your packet. Your current copy may not have the Commanders Report and your Battalion and Brigade commander’s recommendations. Obtain them if possible.
- Stay in contact with your lawyer.
- If you have “waived” your right in any fashion, you can withdraw that waiver up until the Separation authority orders your separation.
- Sexual assault victim’s rights. If you made an unrestricted report, let your TDS attorney know.
- Appeal Rights. You may appeal the decision to the Army Board of Corrections for Military Records. If you think you may want to appeal. Make sure you have your entire separations packet.
- Behave yourself. Any misconduct after notification, may result in UCMJ action or may be submitted as evidence during the separation board.

SPEAK WITH YOUR ATTORNEY ABOUT YOUR SEPARATION ACTION.

ARTICLE 15 FACT SHEET
Provided by
California Army National Guard Trial Defense Service

This fact sheet contains detailed answers to common questions concerning Article 15s, sometimes called non-judicial punishment. This fact sheet is not intended as a substitute for speaking with a defense attorney. Any soldier who is read a company or field grade Article 15 has an absolute right to consult with a defense attorney before deciding whether to accept the Article 15. References: AR 27-10; California Military Veteran’s Code 450.1; Delegation of Authority Policy Memorandum

What is an Article 15 and why is it sometimes called non-judicial punishment?

The authority for commanders to give an Article 15 is found in what is called Article 15 of the Uniform Code of Military Justice. An Article 15 is considered non-judicial punishment, meaning that it is not considered a judicial proceeding. Non-judicial punishment is a military justice option available to commanders. It permits commanders to resolve allegations of minor misconduct against a soldier without resorting to higher forms of discipline, such as a court-martial. The decision to impose an Article 15 is completely the commander’s. A soldier may, however, refuse to accept the Article 15 and instead demand trial by court-martial.

If I agree to accept the Article 15, am I admitting guilt?

No, you are only agreeing to let your commander decide whether you are guilty and, if guilty, what punishment you should receive. If you plead not guilty, your commander must listen to your side of the case. You may present your own case or have a non-lawyer act as your spokesman. You can present witnesses or other evidence (such as statements, police reports, pictures, and diagrams) on your behalf to help explain your side of the story. You may also present evidence regarding your duty performance, reputation for truthfulness or honesty, and other facts that indicate you are not guilty or deserving of a light sentence.

Why should I accept the Article 15 rather than demand trial by court-martial?

Possible maximum punishments at an Article 15 are much lower than what a court-martial could adjudge. For example, you cannot be sentenced to confinement at an Article 15 hearing. Also, even if found guilty at an Article 15 hearing, you still have no federal conviction as with a court-martial conviction. Additionally, most Article 15s (especially first time Article 15s for minor offenses) won’t affect your ability to remain in the Army. Court-martial convictions can result in discharge, either by a punitive discharge adjudged by the court or administrative discharge after the court-martial.

What are the different types of Article 15s and what are the maximum punishments?

There are three types of Article 15s:

1. Summarized. Any company grade commander may administer this type of Article 15. Soldiers who are read a summarized Article 15 are not entitled to consult with a defense attorney. They may, however, turn down the Article 15 and demand trial by court-martial. The maximum punishment authorized at a summarized Article 15 is any combination of:

a. extra duty for 14 days
b. restriction for 14 days
c. oral reprimand or admonition

2. Company Grade. Any company grade commander may administer this type of Article 15. The maximum punishment authorized at a company grade Article 15 is any combination of:

a. Extra duty for 14 days
b. Restriction for 14 days
c. Oral reprimand or admonition
d. Fine of seven days base pay
e. Reduction in rank of one grade (E-4 & below only)

3. Field Grade. A commander in the rank of major or above may administer this type of Article 15. The maximum punishment authorized at a field grade Article 15 is:

a. Correctional custody of not more than 30 days
b. Impose of fine of not more than 15 days pay per month for two months
c. Extra duties, including fatigue or other duties for not more than 45 consecutive days
d. Restrictions to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days.
e. Oral or written reprimand
f. SEE BELOW table for reduction authority

TAG SGT - CSM No more than 2 pay grades
Army Guard CDR SGT - SGM No more than 2 pay grades
CDR in BG Command Position SGT - MSG No more than 2 pay grades
CDR in COL Command Position SGT – SSG No more than 2 pay grades
CDR in LTC Command Position SGT No more than 2 pay grades
Field Grade CDR PV2 - SPC Lowest Pay Grade

If I am found guilty at the Article 15, when does the punishment begin?

Usually the punishment begins immediately, even if you appeal the Article 15. The commander may, delay starting the punishment under certain circumstances (leave, illness, AWOL, field exercise).

What is suspended punishment?

Your commander may suspend any or all punishment for a period not to exceed six months. If the punishment is suspended, it does not take affect. You are, in essence, on "probation" for the suspension period. As long as you do not engage in any misconduct, the suspended punishment will not take affect. However, if you engage in misconduct of any kind, the commander can withdraw (vacate) the suspension and the original punishment takes effect. You do not have a right to contest or appeal the vacation of the suspension. Furthermore, the violation action will not preclude further judicial or non-judicial punishment for the same misconduct.

Can I appeal the decision my commander makes at the Article 15 proceeding?

If you are found guilty during an Article 15 hearing, you have the right to appeal to the next higher commander. For example, if the imposing commander is your company commander, the appellate authority is usually the battalion commander. The appeal must be submitted within five days of your hearing. There are three grounds for appeal: (1) there was not enough evidence to find you guilty; (2) the punishment imposed was too severe; or (3) the commander did not follow proper procedures. The commander considering your appeal can overturn a finding of guilty, lessen the punishment or keep the punishment the same. The commander acting on your appeal cannot make your punishment more severe.

How do I appeal?

You appeal by checking the appropriate block on Line 7 of DA Form 2627 immediately after your imposing commander announces your punishment. He will ask you whether you want to appeal. If you wish to appeal, it is recommended that you check Block 7(c) which states “I appeal and submit additional matters.” If you are not sure if you want to appeal, we recommend you go ahead and check the “I appeal” block. You may request to appear in person before the commander who will consider your appeal. Appeals are normally made in writing, stating the reasons for the appeal and why relief should be given. If you need assistance preparing an appeal, contact the Trial Defense Service.

Will a finding of guilty at an Article 15 hearing be filed in my military records?

A finding of guilty at an Article 15 hearing will be filed in your military records; however, the rules vary depending on your rank.

If you are in the grade of E4 and below, the Article 15 will be filed locally in non-judicial punishment files. The Article 15 will be destroyed two years from the date of imposition, transferring General Court Martial Convening Authorities or upon your ETS, whichever occurs first.

If you are in the grade of E-5 or above, the imposing commander will determine whether the Article 15 will be filed in either the restricted or performance fiche of your Official Military Personnel File (OMPF). Article 15s filed in your OMPF will likely have adverse affects on your future military career. Consult the Trial Defense Service for more details regarding the career ramifications of this important filing determination.

Where can I get additional information about Article 15s?

The Article 15 process is discussed in detail in Part V of the Manual for Courts-Martial and in Chapter 3 of AR 27-10.

Request for Counsel Link: http://www.calguard.ca.gov/TDS/Pages/Request-Counsel.aspx

Cases which Trial Defense Services assists with: Court-martial (all), Article 32, pretrial confinees, Article 15, involuntary separation under 135-178, reduction, officer eliminations or resignations, AGR Separations, AR 15-6 investigations, CID investigations, Commander's Inquiry, IG Investigations, Suspect Rights.

At this time, our mission is to defend ARNG Soldiers (Arizona, California, Nevada, Hawai’i and Guam) in the following statuses: Title 32 - AGR, Title 32 - SAD, Title 32 - ADSW and Title 32 - Traditional Guardsman (M-Day). We do not represent ARNG Soldiers in a Title 10 status. ARNG Soldiers in a Title 10 status will need to contact USATDS for consultation/representation. We do not represent dual status federal technicians facing adverse actions that occurred while in a technician status. We do not represent USAR, active components Soldiers or servicemembers from other services. It is our policy and practice to refer USAR Soldiers to the USAR TDS and Army Soldiers to USATDS.

The mission of CAARNG TDS is to provide specified defense counsel services for Army National Guard (ARNG) Soldiers whenever required by law or regulation and authorized by the ARNG TDS, our higher headquarters. These services are 1) representing Soldiers charged with military criminal offenses at trial; 2) representing Soldiers during criminal investigations and before elimination or grade reduction boards; and, 3) counseling Soldiers regarding pretrial restraint, nonjudicial punishment, and various adverse administrative actions taken pursuant to military regulations. CAARNG TDS will also develop programs and policies to promote the effective and efficient use of defense counsel resources and enhance the professional qualifications of all personnel providing defense services.