California Military Law Questions & Answers

Q: I was arrested for the following when I was 12.. I am now 26 and recently made contact with the attorney

1 Answer | Asked in Criminal Law, Juvenile Law and Military Law for California on
Answered on Feb 4, 2019
Ali Shahrestani, Esq.'s answer
CA Penal Code 17b relates to reductions of crimes for juveniles, depending on the circumstances. See: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=17.

As for information in a background check, typically such checks uncover all arrests that are publicly listed; but it depends on the thoroughness of the background check and the entity running the check. As for whether it will preclude you from a particular job with the US government, for...

Q: My father just passed I'm his daughter there is no will and I need to know if I have any rights to his military benefits

1 Answer | Asked in Family Law, Military Law, Municipal Law and Probate for California on
Answered on Jan 16, 2019
Richard Samuel Price's answer
His surviving spouse would be entitled to all of the community property that they owned, or any joint tenancy held property. Since he had two children, you both would share 2/3 of his separate property and his surviving spouse would be entitled to 1/3 of his separate property. But if he was married for a long term, there probably isn't any separate property.

You'll have to contact the Veterans Administration to determine if you're entitled to any survivor's benefits.

Q: I was discharged from my military unit and I'm pretty sure it's because I'm gay. Can they still do that?

1 Answer | Asked in Military Law for California on
Answered on Jan 9, 2019
Steven McNicholl's answer
In 2010, President Obama repealed the policy "Don't ask Don't Tell", preventing the military from discharging service men because of sexual preference.

Q: Can I be discharged from military service because of a cancer diagnosis?

1 Answer | Asked in Military Law for California on
Answered on Dec 6, 2018
Angelina Bradley's answer
If you are an active duty service member with a cancer diagnosis, you will be processed through the Physical Evaluation Board process. The Navy will determine whether your cancer significantly interferes with the performance of your duties. Depending on how disabled you are determined to be (by the VA) you could be either retired or separated with a severance.

My office practices in this area. If you need additional assistance, please reach out to me.

Q: Can I get out of the Navy Reserves if I need to help out family more

1 Answer | Asked in Military Law for California on
Answered on Oct 23, 2018
Angelina Bradley's answer
Hello. Yes, you can ask for a hardship separation from the Naval Reserve. Depending on where you are in your contract, you can also request to be transferred to the IRR so your drilling requirement would be eliminated -- you'd just have an annual check-in (and you'd still be subject to recall to active duty).

Please feel free to reach out for a consult. I do this sort of work often, and I am also here in San Diego (don't let the number fool you): 323-487-1171.

Q: I suspect my daughter is the victim of abuse - do I alert the base, or the regular cops?

1 Answer | Asked in Military Law for California on
Answered on Oct 19, 2018
Angelina Bradley's answer
Where do you think the abuse occurred? If off-base, you should contact local PD for the criminal investigation, then contact your base Family Advocacy Program to report the abuse.

I specialize in Military Victim Rights. If it's sexual abuse, and the case heads to military criminal trial, your daughter will be appointed a victim rights attorney at no charge to you. Outside of that, if you need legal assistance, please feel free to reach out and I can help with your daughter's military...

Q: I want to reverse an adoption in LA CA in 2002 I am 23 now. I want to petition to get my OG birth cert. for military PIP

1 Answer | Asked in Adoption, Family Law and Military Law for California on
Answered on Sep 30, 2018
Tobie Brina Waxman's answer
Were you adopted by a u.s. citizen? I'm not sure I understand what it is that you are trying to accomplish.

Q: Is it against any Marine corps order to use mass punishment when no Njp was issued for what everyone is punished

1 Answer | Asked in Military Law for California on
Answered on Sep 17, 2018
Angelina Bradley's answer
You’re going to need to be more specific. “Mass punishment” is what? Removal of privileges may be just fine depending on how it was done. Or it could be hazing. Or it could be the command actually enforcing existing policy. Without more facts, I cant make an assessment.

SF

Q: If a charge was dismissed in a federal magistrate court, could a person go to special court martial for the same thing?

1 Answer | Asked in Military Law for California on
Answered on Aug 22, 2018
Robert Donald Gifford II's answer
If it was dismissed "with prejudice" in the federal court, then there is an argument that the courts-martial may be bound by that dismissal. It depends on the reason and grounds it was dimissed. If the dismissal is silent, it's likely "without prejudice" and still subject to UCMJ action.

Q: How can a DUI affect your chances for promotion?

1 Answer | Asked in Military Law for California on
Answered on Aug 22, 2018
Robert Donald Gifford II's answer
Absolutely. It is pretty much a military career killer. The only "exception" is when the service member is a junior enlisted. The military leadership recognizes that a young soldier (or marine, etc.) will make mistakes. If that junior enlisted member is an otherwise good troop, a commander will work to rehabilitate him/her and keep them "in the fight."

Q: What happens if you get busted for something while stationed overseas? Like a DUI?

1 Answer | Asked in Military Law for California on
Answered on Jul 10, 2018
Angelina Bradley's answer
It depends on your service branch. In the Navy, if you're attached to a ship, you're going toArt 15/ NJP/Captain's Mast because you can't refuse. Otherwise, your command may try to take you to NJP or elect to take you to court-martial. They may elect to administratively separate you from the service. It's at your commander's discretion.

You should contact your local Defense Service Office/Area Defense Counsel for free advice. There are also many civilian attorneys (myself included) who...

Q: Currently on deployment so I left my vehicle back in the states with a buddy. Another service member who I have let use

1 Answer | Asked in Gov & Administrative Law and Military Law for California on
Answered on Jun 26, 2018
Angelina Bradley's answer
It's a multi-part question:

1) If you didn't pay your insurance bill, then yes, you were uninsured at the time of the accident and they would not directly pay you to replace the totaled vehicle.

2) Yes, you can hire a personal injury attorney and sue your buddy for the damages and losses related to your vehicle. The attorney would likely collect a portion of the judgment, and you would get the remainder.

3) Yes, you can file a police report, explain you were on...

Q: Just got done with Active duty Military. Just got done with leave my guard unit wants to meet in two weeks to do

1 Answer | Asked in Military Law for California on
Answered on Jun 26, 2018
Angelina Bradley's answer
There is a possibility of early release, but it's unlikely it will be granted. Guard service, like active duty service, is a contract that is not easy to get out of. There are hardship options out there. But if you're in an undermanned MOS, it's unlikely they'll release you.

That said, most employers are subject to USERRA and will work with you on your Guard service. It doesn't have to negatively interfere with your civilian job.

Q: What % of retirement is the ex wife entitled to using the Brown law/Brown Formula, in California. 9 years married

1 Answer | Asked in Family Law and Military Law for California on
Answered on Jun 12, 2018
Tobie Brina Waxman's answer
Who is "us"? Do you have an attorney? What do you mean that she served papers for you to calculate the percentage. It doesn't work that way. If there is a retirement account to be divided because of a divorce judgment or court order, the retirement account at issue is divided by QDRO. Whether the Brown formula even applies depends on the type of retirement account you are talking about. Using Brown, the interest owed to the alternate payee is calculated using the actuarial equivalent of...

Q: Is there anyway I can legally carry a Expandable Baton on my person for self defense and what would be the restrictions?

1 Answer | Asked in Criminal Law and Military Law for California on
Answered on May 23, 2018
Dale S. Gribow's answer
not sure

i would check with local police station but i assume it will be a deadly weapon that police would not want in the hands of a non police officer..............

Q: Could I become a US citizen through the military?

1 Answer | Asked in Immigration Law and Military Law for California on
Answered on Apr 16, 2018
Carl Shusterman's answer
You could if you are a lawful permanent resident of the United States.

Q: Can a civilian be tried in military court?

1 Answer | Asked in Military Law for California on
Answered on Apr 13, 2018
Robert Donald Gifford II's answer
The answer is generally no. No jurisdiction over civilians, with a few rare exceptions. The exceptions are generally if it is a civilian accompanying a force onto a battlefield (like a contractor).

Q: If I am Active duty military, am I exempt from the means test for bankruptcy?

2 Answers | Asked in Bankruptcy and Military Law for California on
Answered on Mar 23, 2018
David Earl Phillips' answer
See if Section 707(b)(2)(D) of the Bankruptcy Code applies to your situation. If so, you may avoid the means test. Best to see a bankruptcy lawyer near you as the means test is only part of what the US Trustee looks at when reviewing cases for abuse. Thank you for your service to our country. Hope it works out.

Q: my spouse join military 7 years ago,we dont live together since he started his service. are we legally separated?

1 Answer | Asked in Child Support, Divorce and Military Law for California on
Answered on Jan 26, 2018
Robert Donald Gifford II's answer
You are not legally separated, however ever branch of service requires support to be provided. For example, pursuant to AR 608-99 the Army requires that the military member provides an amount equal to his/her Basic Allowance for Housing.

Q: My soon to be ex husband of 35 years retired as an 0-6. All of his service was while married. I was awarded half

1 Answer | Asked in Divorce and Military Law for California on
Answered on Jan 23, 2018
William N. Sosis' answer
The amount of available funds for pensions, 401k's, and most retirement plans are generally determined by plan administrators and paid through a qualified domestic relations order (QDRO). The percentage of what you're entitled to receive following a divorce is determined and fixed through equitable distribution, the coverture, and anything that may have been negotiated in your property settlement. In other words, if you negotiate 50% you will likely get 50% (providing he doesn't wrongfully...

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