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Sounding Board - 2001



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10 Dec :    I am a Captain, currently serving in the British Army as a Dental Officer. I am writing to you as you are my last hope in trying to leave the Army. The problem I have at the moment is that I wish to leave the Army now but they are refusing to let me do so because I signed up for a 6 year service of which I have only served half. I first applied for PVR almost a year ago and I have had to appeal, reappeal and reappeal again but to no avail. They will not even let me buy myself out. I have tried an employment solicitor to help my case but that proved to be a pointless exercise. I feel as though there must be a human rights issue here or at least you may be able to help me in some way. I will be more than happy to send you all the details of my case to date if you think I have a chance in leaving the Army as soon as possible  Anonymous   
8 Dec :    HC should be aware the forces can hang on to someone if there is a shortage of personnel in that specialisation - it's called exigences of the service. All the same, they cannot hang on to you beyond the normal notice period. He gave a years notice in August, so he must have realised that he could be held until the end of that notice period. He should check what it says in Qrs. If he thinks the CO is being unreasonable, bung in a complaint under the army act. In my opinion, the CO sounds as if he is behaving quite reasonable. Anyway good luck.   Gary   
3 Dec :    I intend to qualify as a barrister, and hope to join the army as a lawyer, however I am not sure if I would want to carry on in the army after four years. I have heard that as a consequence of becoming a military law specialist, it would become very difficult to get a barristers position outside of military jurisdiction. Is this true and if it were, would my only option be to carry on in the army?.  Naomi   
Naomi, many lawyers who join the Army Legal Services (ALS) return to private practice afterwards. To carry on serving beyond 4 years, you would have to be successful in obtaining an Intermediate Regular Commission (IRC), or be permitted to extend your short service commission. An IRC is obtained upon application and through selection. However, first of all you have to pass the selection process to get into the ALS! This is no easy achievement and depends upon how well you perform during three days of tests at the Regular Commissions Board. For further information, contact: SO1 ALS1, Directorate of Army Legal Services, Ministry of Defence, Trenchard Lines, Upavon, Wilts, SN9 6BE.   Aspals   
25 Nov :    I gave 1 years notice to leave the Army on 7th August 2001. At the start of November 2001 I was offerd an excellent position with a company in Southeast Asia. I must begin employment with the company as close to 1st Jan 2002 as possible. I applied for PVR on 21 Nov 2001. All my paperwork has been sent to the Manning office at Glasgow. I did the decent thing and informed my commanding officer in person of my wish to leave. He has told me that he will not let me go without a replacement. The commanding officer has been in contact with Glasgow. The manning office has stipulated that my corp is 'undermanned'. The manning office will not post a soldier from main-stream employment into my post which is technical role. If I am not released I will loose this job offer. Any assistance or advice would be really appreciated.  HC   
25 Nov :    Re:SGR2001 and discharge from Army. You state that you are a 24 yr old but little else, eg what length of contract you are on, what trade and so on. I am curious as to why you suddenly don't wish to serve out your voluntarily agreed contract. More curiously, at your CO's interview what have the army offered you? Have they said serve 18 months and then go, so that they may claw back some of the investment they have put into your training, which sounds reasonable, or have they insisted you serve 12 years, which doesn't. I don't wish to sound hard faced, and no doubt you have a very good reason for wishing to back out of your agreement, but the armed forces have very good and fairly obvious reasons why they try to insist on people fulfilling their obligations. For what its worth, I suspect you will probably get your discharge on a Public Relations basis. The Army are keen to maintain a good PR face and this sort of publicity you have embarked upon will probably work in your favour. When reading your letter and request for ideas I couldn't help remembering stories that years ago a good way to "work your ticket" was to declare yourself a homosexual, at which point allegedly the Army couldn't get rid the declaree quick enough!! However in these thankfully enlightened times this option is no longer available to you. I suspect your best option is to plead your no doubt very good reason for ending your contract and hope that the army sees your side of it, failing that, try to negotiate as short a term of service as they will allow. I wish you luck .  HTB   
19 Oct :    I joined the Army four months ago and have therefore just passed the time during which I am entitled to discharge. Please advise me if there is anything I can do, whether it be a suggestion or a point of legal fact, in order to leave the Army. I am currently in phase 2 training. I am awaiting an OC's interview but have been told that he may make me complete my service even if I leave my current course. I am 24 years of age.  SGR2001   
Can anyone help out with this query? Please respond here (as this query is posted under a pseudonym) and we will post. Requests for anonymity will be respected, in accordance with our FAQ.   Voitho   
12 Sep :    during 1944-1948 i attended merton central school in surrey as a student.the headmaster B.D.OGDEN went to italy at the end of ww2 to participate as a judge in the italian war trials - i assume courts martial- out of school i saw him in the uniform of colonel wth red tabs on the collars other times in uniform as group captain.i do not believe he was on active service during ww2.i have found no reference to war crimes tribunals in italy.he kept diaries of his visit to italy which he read to us at assembly, with no mention of the actual trials.i cannot recall any legal qualifications he may have had except that of J.P.he most likely served in the armed forces in ww1.my question is were there war trials in italy after ww2?.how were the judges selected? why would a civilian be commisioned in two services as colonel and group captain? thank you in advance for your courtesy in answering what may seem to you to be a frivoulous question.  Ian   
Ian poses some intriguing questions. The MoD archives might be a starting point for correspondence. Can anyone help out?   Voitho   
29 Aug :    Re: Block Seniors, Viotho thanks for your reply. However, rather than a direct response from my CO, the assumption of Block Senior has been made by the Estate Manager/Station Staff Office, who appear to be less than flexible, given all the circumstances. Without going into specific details of my grievance and you will have to take my word that they have a sound and common sense base, surely as a paying tenant (the duty did not form any part of my licence to occupy agreement) some sort of guidelines/orders must exist, rather than it being decided on the whim of someone in authority  Jon   
It may be the case that the Estate Manager/Station Staff Office is acting under the authority of the CO. However, if you are unhappy with the arrangement and have been unsuccessful at resolving the matter by negotiation/discussion, you do have the right to complain under section 180 of the Army Act where you feel you have been wronged in relation to any matter concerning your service. All the same, this is a major step to take. If the CO has delegated that authority to nominate block seniors to someone else, then any breach of a command/direction they give may be regarded as disobedience to a lawful command. If the individual is a civilian, the CO can publish a Part One order that instructions those civilians give are to be followed and that any failure to do so would be regarded as a breach of the CO's order.   Voitho   
28 Aug :    I have just discovered your brilliant site. At last somewhere for problems affecting the serviceman to be discussed. Lt Fletcher's comment doesn't seem to have produced any feedback. I would suggest he scans the ECHR site and looks for judgments dealing with article 3 (torture, inhuman or degrading treatment)  Joel Cryer   
28 Aug :    Regarding MSQs. I understand the common sense and idea of Block seniors in communal flats, however, legally, military or otherwise, can a person be "press ganged" into the position because of his rank or employment? I have searched QRs & MML without success. Jon   
28 Aug :    It is a central part of the CO's authority to maintain good order and military discipline, bearing in mind that MSQs and barrack blocks are military property for which he is responsible. So, it would appear to be quite legitimate for COs to make such appointments from among suitable senior personnel. The order has a legitimate military purpose (the test for the lawfulness of a command). Voitho   
8 Aug :    Good Afternoon all. I understand that the 'stress position' used when tactical questioning prisoners has been declared illegal by the European Court of Human rights. If that is the ase, could you please let me know a case reference? Thanks Ladies and Gentlemen, I appreciate your help. Lt G D Fletcher NZALS   
7 Aug :    Has any serviceman/woman or lawyer any knowledge of a married quarter being allocated to a gay service applicant and partner? Lewis Cherry   
Not sure it answers your question, but you might want to take a look at Sunday Times, Oct 29 2000. However, QRs 5.660. deal with entitlement to married quarters and specifically refer, in para b, to officers and soldiers who "may be allocated married quarters provided they are of marital status categories 1 and 2 as defined in Chapter 1 of Regulations for Army Allowances and Charges (Code No 10). Apart from single lieutenant colonels (male or female) and above in command and single regimental sergeant majors of major units, no other military personnel will be eligible to occupy married quarters." Aspals   
2 Jul :    Living in barrack blocks means you are on camp, which means you are living in the COs accomodation which means you are subject to the regulations he sets down. Room inspections are a way of hcecking that everything is OK and that no-one has wrecked the place. My advice is stop thinking like a civvie and more like a serviceman. Will the human rights winge never stop. T Harker   
20 Jun :    With reference to the Human rights act 1998. Primarily the right to privacy. As a seperated man, i have now moved into the barracks and away from my married quarter. I have fitted an alarm system to my room and changed the lock so only I and a nominated person has a key. On a block inspection, I have refused entry to my room, however at no time have I yet been ordered to permit entry for my room to be inspected. At no time during the 10 ye rs I lived in married quarters was my home inspected. I now refuse entry under the HRA on inspections where I am not present. I strongly feel that noone has the right to enter what is my home just for a casual inspection on the way I live. I intend to challenge station standing orders on this matter. have i got a prayer? james Poole   
27 May :    F Mackay asks about PVR. Rules relating to PVR can be complex. Essentially, you should check the position under QRs. If you have benefited from specialist training, it is not unusual for the Service to impose a timebar to reflect their investment in you. What is or is not a reasonable time in those circumstances will depend upon the Service "exigencies" or any return of service that you are subject to. IANAL but I believe the Services are not covered by employment law, except where there are allegations of sexual or racial discrimination. I've personally never understood the point of hanging onto people who don't want to carry on doing the job. Don't know what others think.P Sullivan   
12 May :    Chris, good to see another member of the NZDF on these pages...great web site team, I enjoy referring to it. LT GD Fletcher,  grant_fletcher@xtra.co.nz   
Glad you enjoy the site. Aspals   
7 May AirLaw's point is an interesting one. You don't say what your redress is about, but the case cited (Wickramsinghe) confirms that the professional disciplinary proceedings against the applicant did determine his civil rights and obligations, but "no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6". Compare the recent changes to (non ECHR compliant) summary dealing. The defect was remedied by providing a right of appeal from the summary dealing before the CO to an appeal court. If I were you I'd probably seek some legal advice from an ECHR specialist (but not sure whether these legal costs can be recovered against the services, so be careful).    Caius   
6 May : Advice sought regarding length of notice to serve following application for premature voluntary release. Is it corect that having applied for a PVR (following completion of 8 out of 9 years service)a person in Trade group 15 Staff Nurse (Royal Air Force), is required to serve 12 months notice or do the new Employment/Human Rights laws entitle that person to serve only a reasonable notice, perhaps 4 - 6 weeks, in relation to salary payments? Greatful for any clarification on this subject.     F Mackay , fiona685@hotmail.com  
1 May : Having just initiated a redress of complaint, the handling of the complaint and first response have not adhered to procedure detailed in QRs and guidance publications. As the redress system is the only way in the military to challenge a decision not covered by Sexual or Racial Equality, what is the impact of this refusal to follow procedure? Having broadly looked at the effect of Art 6 (1) ECHR, would Wickramsinghe v UK [1998] cover this situation? (Where it would be possible that notionally internal disciplinary proceedings such as those held by self-regulating organizations or professions will be held to fall within the scope of proceedings governed by art 6 where they affect the rights of the individual)     AirLaw   
28 Apr : In reference to my statement regarding 16 year olds at attestation dated 19 March. I am writing this offering my great thankfullness to MIL LAW and your sounding board for your help without which my son who is now 1 month short of is 18th birthday would still be in the army. The armed forces can be a great career for many people but unfortunatley my son did not realise it was not for him untill he had passed the discharge of right rule. Once again I THANK YOU..     Allan Beardsworth  abeards123@tinyworld.co.uk
Glad the site was able to help.     Aspals
25 Apr : Russ asks about military doctors. Liability outside of ordinary civil and criminal proeedings would be in the form of professional conduct proceedings before the GMC. These are complaints that are investigated by lawyers in the employ of the GMC and presented to the professional conduct committee. The proceedings themselves probably breach the provisions of article 6 of the Convention, but of course as long as there is a right to appeal to a compliant court the proceedings will escape that criticism. It isn't every stage of the professional disciplinary process that has to be ECHR compliant. You might want to contact the GMC for further info - and what about the RAMC?.     Caius
24 Apr : The Armed Forces Law Association of New Zealand now has an on-line presence at www.aflanz.org.     Chris Griggs , cj.griggs@clear.net.nz
21 Apr : I am researching into the accountability of the army doctor and wish to know whether there are any extra laws or obligations placed on them outside normal civilian laws. Also how would they be prosecuted/investigated?     Russ Colman , rcc8@aber.ac.uk
21 Mar : Please find attached a copy of Newsletter No 1 of 2001, issued recently by the Armed Forces Law Association of New Zealand (which was formed in November 2000). We would be most obliged if you would note our formation and our conference in Christchurch on 3 October 2001 on your site. We hope to have some representation from the American National Institute of Military Justice in Christchurch, and it would be nice to think someone from the UK might make it "down under" too.
The programme for our conference has yet to be fine-tuned, so we could no doubt accommodate a suitable UK speaker if one were available - particularly noting the post-Findlay fall out and its undoubted relevance to NZ.
AFLANZ will be going on-line soon as well - I will let you know the URL when our site goes "live".
We would particularly encourage UK practitioners and academics to consider submitting articles for the New Zealand Armed Forces Law Review (NZAFLR) or simply subscribing to what we believe will be a most interesting publication with a very sound academic base (noting the strength of the Editorial Board). NZAFLR will be launched at our conference in October. It will cover the full range of legal issues affecting the armed forces. The issue price for non-members will be NZ$50. It would be available to UK subscribers for 20 pounds plus applicable postage and packaging.
Regards,
Chris Griggs
Lt Cdr, RNZN
Secretary, AFLANZ    
Glad to help in any way we can, Chris. Sounds a tremendous opportunity for military lawyers. Start booking your seats and placing your orders NOW to support these initiatives. Contact us for a copy of the paper Chris is referring to.  &nbs ;  Aspals
20 Mar : RE: Regarding 16 year olds at attestation     You might be interested in the views of the Armed Forces Select Committee, expressed in their report of 13th March. At para. 61 they state that "in addition to the ability to give notice within the 6-month period, there is also the facility for "unhappy juniors" to be discharged up to the age of 18 year [years and three months in the army] if their service in the forces is clearly the cause of unhappiness." As for the requirement to serve 4 years from the age of 18, the Committee (para. 63) "...were satisfied that the provisions in place are adequate to allow those who are genuinely unhappy to leave", although they did emphasise that it is important to ensure that those under 18, and their families, fully understand the commitment they are entering into. This,they felt, was a matter for recruitment officers to clearly spell out. The MoD (para 62) made clear that it does this.     Mil Law
19 Mar : Regarding 16 year olds at attestation If you post this letter may I first apologize for it taking two attempts to clarify the situation that I find unbelievable and I hope some in the know will tell me if I have been mistaken in interpreting the contract on the army form B271W(11/99). As I understand this contract it goes something like this. If a 16 year old person enlisted in to the army now in the open engagement and they let the discharge of right window pass 4 month,s and 2 weeks in their first 6 months of training(28 days compulsory service & 2 weeks needed for discharge notice). They are then required to serve 4 years minimum from their 18 birthday and then when they are 22 provided they have given 12 months notice of their intention for a discharge they are then required to serve in the reserves for a period of 6 years until they are 28 and then subject to paragraph 31 of the same form they are then liable to be recalled at any time in the event of national danger until 18 years has elapsed since they were discharged from the regular army which now makes them 40 years of age before this contract has run its full course. May I finish by saying if I have misunderstood ANY of this contract law PLEASE let me know. In my personal opinion I think this is one hell of a contract for any 16 year old to be held responsible for if their not deemed mature enough to vote how the hell can they be mature enough to make a contract of this magnitude .     Allan Beardsworth , abeards123@tinyworld.co.uk
13 Mar : With the introduction of AFDA 2000, have the ISDR's been replaced by the Pre-Charge Custody and Summary Dealings regulations 2000? If so, where can one get a copy. Are there any practitioners that have advised on a Summary Appeal Court? If so I would appreciate a chat so as to aid me in finalising my dissertation on the Courts-Martail system and the administration of Air-Force Law. Any help, however small very much apprecaited. .     Andre Goldsborough , andrew@agoldsborough.freeserve.co.uk
ISDRs have, indeed, been replaced by the CSD(A)Rs 2000. Try the new link from the Aspals Index page section 2, under Army Act 1955 Part II. This will take you to to the Army's website where, on the left, you should see a hot link to CSD(A)Rs.     Aspals
8 Mar : In answer to Andrew Jackson's point, the Attorney's guidelines, I believe, were designed to redress some of the major concerns over the CPIA 96 and the problems with Disclosure Officers not disclosing to the prosecution. As the Attorney says: "...the Guidelines do a great deal to clarify the responsibilities of investigators, disclosure officers, prosecutors and defence practitioners. If properly applied, the guidelines should substantially allay the concerns that have been expressed about the legislation." Happily - for the time-being, at any rate - the CPIA does not apply to the Army. So, the Common Law rules hold sway (they're much fairer, anyway, and many counsel are envious of the fact that the CPIA does not apply to the Army). Anyway, the broad principles contained in the Guidelines relating to a more open approach are compatible with the approach of the common law and accord with good practice (see, for example, para.9 relating to seizure of material that is not examined and the general duties on prosecutors, set out in paras 13 - 26). Military prosecutors would follow this guidance and, in practice, you will find that disclosure is dealt with quite well by military prosecutor .     Mil Law
4 Mar : Having just argued relating to matters of disclosure have any practitioners ever been faced with APA stating that either the A-G's guidelines on disclosure do apply or that they do not apply to Court Martial?     Andrew F. Jackson afbar@btinternet.com
18 Feb : In response to the Non-UK lawyer, whose authority are you concerned with, the commander's/chain of command's? IANAL, but having served I know that if a soldier acts outside the scope of authority ie orders given to him he may be acting unlawfully.     Paul Roberts
If the questioner is referring to time of war, the Yamashita case is one where there was command responsibility for the acts of subordinates. This sounds like an exam question :-)    Aspals
14 Feb : how can it be right that a 16 year young person after attestation and after 10 months of training still not reached the age of 17 passes the window of discharge by right finds himself in a position when the the army cannot send him in to service because he is not old enough but yet he was deemend old enough one year previous to make a oath that would control his life for the next four years. 16 years of age is no age for a juvinille who cannot even vote for the country to be legally held to a commitment for 4 years .
it's time for change and make attestation at a sensible age say 18     Allan Beardsworth
 abeards123@tinyworld.co.uk
3 Feb : I was pleased to see Forces Legal Network going on-line this week with their new basic site www.ForcesLaw.com. I understand from the group (Forces Legal Network) that all the solicitors in the UK who specialise in Military Law cases will soon be linked onto the site! Great to see. Best wishes     Stephen Ward Senior Clerk at South Western Chambers www.MilitaryLaw.co.uk
28 January 2001 :  The Aspal site is a military lawyer's e-library. It's like a link with other military lawyers. By the way, are there any articles or sites which explains the extent of a military commander's vicarious liability for act or negligence of a soldier committed outside the scope of authority? Are there any similar cases in other countries?     A non-UK military lawyer
25 January 2001 :  Aspals Cases page. There is also a link from there to the Law Reports summary    nbsp; Aspals
13 January 2001 : I am a pupil barrister and am trying to find a book which will give me a good grounding in court martials and military law. it is an area that has always interested me, but which seems somewhat impregnable to a person on the outside of the military. can u help me?     Michael Salter
Your concerns over the availability of a book to explain the seemingly esoteric world of military law is perfectly understood. The difficulty at the moment is, one assumes, that the military legal system has undergone so much change since 1996 - with more to come in the Armed Forces Bill this year, that the amount of effort required is not felt justified by the limited audience to which it would be targeted. Or maybe that is just being cynical :-) you might want to consider the book by the Judge Advocate General, His Honour Judge James Rant QC, entitled "The Courts-Martial Handbook". You will find it on the Aspals site at the following link. Purchasing your books through our site helps us defray our costs from the modest commission earned, so we would be eternally grateful. It also offers very competitive pricing through Amazon :-) This site receives no support or assistance from offical or other quarters.
The link is: The Courts-Martial Handbook
In the meantime, if you have any queries, please feel free to contact us here and we will do our best to help in whatever way we can. This site was designed with the defence practitioner very much in mind, as we were aware that there were few sources if any where materials could be found by practitioners engaged in the defence of military personnel - - or just interested in military law. There is nothing currently available from offical MoD sources in this regard.     Aspals
8 January 2001 :  Would the person calling himself/herself "Soldier A" please stop sending any more anonymous eMails on the subject that concerns him. Aspals cannot publish speculative comment about court-martial cases or unsubstantiated opinions on their merits or otherwise. Please see the Faq for more details.     Aspals
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