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NEWS | Jan. 19, 2012

DUI: Barracks lawyers vs the facts

By 628th Air Base Wing Legal Office

At the legal office, we frequently advise commanders and first sergeants when one of their Airmen is caught driving under the influence or is involved in an alcohol-related incident. Recently, we noticed that members of the Joint Base Charleston population may be receiving advice from "barracks lawyers" that is a little off the mark.

The 628th Air Base Wing legal office does not endorse the barracks lawyer approach to legal services for many reasons. Every case is different; despite what a barracks lawyer may have said, there are no "standard hits" on this base. However, for those who are wondering what could happen if your wingman or you are caught Driving Under the Influence or are involved in an Alcohol Related Incident, read and learn the truth behind the barracks lawyer myths.

Bad advice:
You will not go to jail for your first DUI offense in South Carolina. Wrong! DUI fines and penalties in South Carolina are tough! It is against the law to drive with a Blood Alcohol Content of .08 or above. If you are driving with a BAC above .08 and below .10, you can receive a license suspension for six months, a fine of $400, jail for a minimum of 48 hours or 48 hours of Public Service Employment. If you are driving with a BAC of .10 and under .16, you may receive a license suspension of six months, a fine of $500, jail for a minimum of 72 Hours or 72 hours of Public Service Employment. If you are driving with a BAC above .1, you may receive a license suspension of six months, a fine of $1,000, jail for a minimum of 30 days or 30 days of Public Service Employment. And it does not end there.

If you happen to cause great bodily injury or death by operating a vehicle while under the influence of drugs or alcohol, you will likely be charged with felony DUI. A felony DUI conviction for causing great bodily injury includes a mandatory minimum of 30 days to a maximum of 15 years imprisonment plus a mandatory fine of at least $5,000. Also, the Department of Motor Vehicles must suspend the convicted person's driver's license for the term of imprisonment plus three years. A DUI conviction that includes a felony conviction for causing the death of another includes a mandatory minimum sentence of at least one year in prison with a maximum 25 years imprisonment and a minimum mandatory fine of not less than $10,100. Additionally, the convicted person's driver's license is suspended for the term of imprisonment plus five years. Also, depending on the circumstances of the DUI felony conviction, you may be denied the right to vote, possess firearms, receive student loans and/or even adopt children or serve as a foster parent.

Bad advice:
Your commander cannot do anything if you receive a DUI downtown. Wrong! In addition to the penalties you may receive from the local community - i.e suspended driver's license, jail time and/or fines - the wing and/or your commander will suspend your driver's license on federal installations as well and your commander can give you a Letter of Counseling, Letter of Reprimand, create an Unfavorable Information File or place you on a control roster. Depending on your past, an administrative discharge may rapidly follow as well.

Bad advice:
The worst thing that can happen if you receive a first-time DUI is an LOR or maybe an Article 15 with a fine. You definitely won't go to a court-martial.
Wrong! Commanders have a wide range of options to consider when an Airman receives a DUI. That range starts with nothing and includes anything from an LOC to an LOR to an Article 15 to a court-martial, even for a first offense. If your commander decides to impose an Article 15 and you are an E-4 or below, you can be reduced to E-1. If you are an E-5 to E-7, your commander can reduce you one grade. Anyone can be fined up to one half one month's pay for two months, be restricted to base for 60 days and receive 45 days extra duty. If you go before a court-martial, you can be confined 30 days to six months depending on the type of court-martial. You can receive a bad conduct discharge, be reduced to E-1 and receive total forfeitures of pay and allowance. If you injure someone while drinking and driving, you can be confined up to 18 months and receive a dishonorable discharge. And of course if you kill someone as a result of your DUI, you can be prosecuted for involuntary manslaughter which carries possible sentences of up 10 years confinement and a dishonorable discharge.

Bad advice:
I heard about a chief that got a DUI when he was an Airman and he did alright. So even if you get a DUI, you don't have anything to worry about. Wrong! As we all know, the Air Force environment is constantly changing. Additionally, the Air Force currently must reduce its force. To achieve this goal, AFPC has implemented rollbacks, forcing people out of the Air Force if they meet certain criteria. If you receive a DUI, you may get caught in a rollback and forced out of the Air Force. Also, commanders have other administrative options at their disposal. First, your commander may elect to discharge you from the Air Force with a General or Under Other than Honorable service characterization. The commander can also deny your request to re-enlist in the Air Force. There is no automatic right to re-enlist in the Air Force. Your supervisor and/or commander can recommend that you receive a referral Enlisted Performance Report or Officer Performance Report for a DUI. That can affect your ability to achieve promotion goals. If you have already tested, you may be "red-lined" and not promoted, even if you were selected. If you are an officer, senior noncommissioned officer, technical sergeant or a staff sergeant, a DUI, no matter what action your commander takes, may end your chances for promotion and your Air Force career.

Bad advice:
If you get in a fight and don't remember what happened, you won't get into trouble.
Wrong! If you get into a fight while drunk, you can be charged for assault under the Uniform Code of Military Justice, even if you don't remember. Your commander can impose an Article 15 which carries the same punishment as a DUI. Your commander can take the same administrative actions, such as a discharge, denial of reenlistment, and a referral EPR/OPR. However, if your commander sends you before a court-martial, the punishment can be severe depending on the facts of the case. The amount of confinement could be for many years. In addition, you could receive a dishonorable discharge, reduction to E-1 and total forfeiture of all pay and allowances.

Bad advice:
Well, DUIs are a personal problem.
Wrong! Receiving a DUI, on or off base, is everyone's problem. Commanders, first sergeants and supervisors must take time out of their busy schedules to attend to your problem. Processing an Article 15 can take 20 days. That does not include everything that must be done to ensure the punishment is carried out. If you go before a court-martial and/or a local judge, it takes even more time. Fellow wingmen must also spend their time covering your work duties because you are out of the shop. If you are discharged, your unit must take time to pick up your workload and train your replacement when they arrive. Your absence creates a void and puts a strain on troops who work hard every day to complete the Air Force mission. Finally, your DUI affects your family. Think about it - you cannot drive, you may lose money and rank and if you are court-martialed and confined, your family loses one of their loved ones. Before you decide to drink and drive, think about what you will tell your husband or wife, mother or father, son or daughter and the example you will have set for them.