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Ask the Lawyer: Mental illness can complicate legal process, discharges

Jan. 19, 2012 - 03:28PM   |   Last Updated: Jan. 19, 2012 - 03:28PM  |  
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About the author

Mathew B. Tully is a veteran of the Iraq War and founding partner of the law firm Tully Rinckey PLLC. Click here to email a question. The information in this column is not intended as legal advice.

Q. Can you get punished by the military for suffering from mental illness?

A. The military does not punish service members because they suffer from mental illness unless they lied about a diagnosis or any treatment they received for the condition. Such actions could constitute fraudulent enlistment in violation of Article 83 of the Uniform Code of Military Justice, or making a false official statement in violation of Article 107.

Otherwise, the military might try to separate service members if, for example, they are diagnosed with a severe personality disorder that affects their ability to perform their duties.

The threat of punishment often arises when service members engage in misconduct influenced by a mental illness. For example, to cope with post-traumatic stress disorder, service members might use marijuana or abuse alcohol or prescription drugs in violation of Article 112a. Severely depressed troops might be late for duty and be charged with being absent without leave in violation of Article 86. Service members suffering from PTSD could become agitated, making them prone to outbursts and, consequently, charges of assault in violation of Article 128.

An example of the military trying to punish a mentally ill service member for misconduct arose late last year in the U.S. Navy-Marines Court of Criminal Appeals case of U.S. v. Caldwell.

A Marine private pleaded guilty at a special court-martial to, among other charges, wrongful self-injury in violation of Article 134 of the UCMJ. Despite being previously treated for depression, PTSD and an unspecified personality disorder, he attempted suicide by cutting his wrists.

Judge Raymond Beal argued the military should be able to criminalize suicide attempts because self-injury can cause "tremendous prejudice to the good order and discipline within a unit."

Under Rule 706 of the Rules for Courts-Martial, service members facing charges under the UCMJ should be given a medical evaluation if there is reason to believe they suffered from a mental disease or defect when the alleged misconduct occurred, or if they lack the mental responsibility to stand trial.

Service members suffering from mental illness should consult with a military law attorney who can present medical evidence to the court, which might be more inclined to dismiss the charges or issue a more lenient sentence.

Veterans suffering from mental illness who were separated from the military because of a criminal conviction should also consult with an attorney to see whether they can pursue a discharge upgrade by appealing to a discharge review board.

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