Following allegations of a gang rape by service members on a local national, the military has struggled to punish all military members stationed in Japan. For the past month, command in Japan has created an increasingly restrictive curfew and limitation on alcohol consumption. At this point it has crossed to the ridiculous — active-duty sailors are prohibited from drinking alcohol from 10 p.m.- 8 a.m., even in their homes, regardless of leave or liberty status, according to U.S. Naval Forces Japan spokesman Cmdr. Kenneth Marshall.
Attempting to create curfews in response to alcohol related incidents is not a new trend in OCONUS environments. Limitations on standard liberties and freedoms have long been recognized as legitimate in deployed environments. In those circumstances, there is little question about the lawfulness of limitations of alcohol consumption, sexual relationships, and designated times to be in quarters. However, limitations on freedoms and liberties based on the sensitivities of a host nation may not be the justification necessary for command.
All military orders must be lawful. Lawfulness is a matter that is ultimately decided by a military judge if the matter is raised all the way to court-martial. Generally, the elements of a lawful order are as follows: 1) military necessity; 2) reasonably limited in scope (not over-broad); and, 3) for a specified and limited time period.
In 2008, I was stationed at the Aviano AB, Italy legal office when the wing commander attempted to create a curfew of his own following a spat of alcohol related incidents. I am well aware of how commanders are advised by their JAGs on issuing curfews. I also know the policies and directives of JAGs advising generals is not communicated down to lower level commanders. Generally speaking, it has been my experience that commanders are advised not to punish violations of a curfew, but rather punish military members for the underlying conduct that got them caught for violating curfew (i.e. public drunkenness). The reality is that lower commanders hear one message, “kick the sh*t out of any troop caught violating the curfew.” For this reason, lower level commanders take it upon themselves to ruin careers over a potentially unlawful order.
Letter of reprimand (LOR), letter of admonishment (LOA), letter of counseling (LOC), referral performance reports, Chapters, Captain Mast, Article 15 are all avenues a commander may take to ruin a career in a manner that seems hopeless and without due process. Local free military defense counsel are often too overworked to handle these types of cases. In some circumstances, it was the assigned military defense counsel that helped write the curfew in the first place! Standing up to a commander and telling them that their order is illegal, unreasonable, and improper is no easy task for a uniformed JAG that wants a future in the military. Those military defense counsel certainly aren’t going to take your case to the media, to congress, or to federal district court to file a restraining order against the commander. I will though. In the right circumstance, all of those options — confronting commanders, going to the media, congress or federal courts are actions I can take on behalf of a client.
When your constitutional rights are being infringed upon “because you are in the military” don’t accept it, don’t accept your 3 minute phone call with a free defense counsel — your career, freedom and liberty are all on the line. Start by calling me to discuss your options.