Counsel Beware: Defending Fraudulent Enlistment Cases

The U.S. Court of Appeals for the Armed Forces recently upheld a dismissal of an Air Force officer.  The major was a licensed clinical social worker. In a nutshell, she failed to reveal a 1987 misdemeanor for obstructing the passage of mail on her “Application for Clinical Privileges/Medical Staff Appointment (AF Form 1540).”  At the time she was a teenager who worked in a post office. In any case, she specifically denied any criminal history by writing “no” on the aforementioned AF form and as part of her e-QIP security clearance application.  At trial she attempted to offer statements of medical professionals who would have testified that they would have answered as she did because the questions, in their view, strictly pertained to their time while a medical professional.  Simply stated, the military judge did not see it that way because these witnesses had not spoken to the accused prior to her filling out the disclosure forms.  The learning points of U.S. v. Major Chantay White, 69 M.J. 236 (2010) are several. First, smart defense counsel must attempt to draw a factual nexus or link between the interpretations of others of a particular form with the accused’s decision-making in filling out the forms. Moreover, at trial, defense counsel may have made a mistake in offering the prior Army form (filled out eight years earlier) in which his client acknowledged that she had been “convicted of an offense.” In other words, it was undoubtedly difficult for the military panel to reconcile the fact that she previously revealed the conviction to the the Army, 8-years earlier on a medical professional disclosure form, but that, without  explanation, her decision-making changed when she decided to enter the Air Force.  Finally, defense counsel must vigorously champion your client’s offering of evidence by emphasizing to the military judge that “the relevance standard is a low threshold.” U.S. v. Reece, 25 M.J. 93 (CMA 1987).  Overall, this is an interesting opinion that seems to tell us more about carefully selecting trial strategies than about any significant judicial precedent.

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