Here it is. I think this is our final shot at a deal to avoid the GCM. I understand your position with the potential crossover. I think the 133 will show the CG that he is serious and wants to take full responsibility. Brett C. Miner Major, USMC Military Justice Officer MCAGCC / MAGTFTC Box 788102 Twentynine Palms, CA 92278 Comm: 760-830-9077 Cell: 949-300-4884 Fax: 760-830-3930 -----Original Message----- From: Haytham [mailto:haytham@puckettfaraj.com] Sent: Friday, November 19, 2010 17:02 To: Rubin LtCol Peter R Cc: Miner Maj Brett C; Gilinsky Capt David; Hur Capt Christian P Subject: Re: RULING ICO MAJ SCARSELLI Thank you for your email your honor. I argued that a new Article 34 would be sufficient to cure the defect. Upon review of the Manual, I believe that I was mistaken and that re-referral would be necessary after a new 34 advice letter is prepared to cure the defect. That said, I understand your ruling and will be prepared to begin on the agreed upon date. Vr, Haytham Faraj Sent from my iPhone On Nov 19, 2010, at 4:33 PM, "Hur Capt Christian P" <christian.hur@usmc.mil> wrote: > FYI > > > -----Original Message----- > From: Rubin LtCol Peter R > Sent: Friday, November 19, 2010 16:32 > To: Miner Maj Brett C; Peterson Col Alex G > Cc: Hur Capt Christian P; Gilinsky Capt David > Subject: Re: RULING ICO MAJ SCARSELLI > > Major Miner, > > Good afternoon. I'm still out of the office dealing with car issues from the ride back from 29 Palms. I want to send word ASAP so that the necessary corrective action can be taken. I apologize if the email has some typos - I'm sending via BBerry. > > The Court's preliminary ruling is that the UCMJ Art 34 advice letter from LtCol Ashbacher was defective in light of her prior involvement with Major Scarselli and his BCNR/FitRep issue and subsequent conversation with the TC(Capt Funk) where she revealed that she had assisted with the matter. The prosecution was thereby alerted to the existence of the adverse fitrep, although its discovery was inevitable. In an abundance of caution, LtCol Ashbacher should have recused herself. Her actions do not constitute UCI, however, in light of the number of UCI allegations already in front of the Court, I am concerned about the fairness of the process and the perception of fairness. > > The defect in the 34 advice letter is not jurisdictional; dismissal and re-referral of the charges are not required. The defect can be cured with a new Art 34 letter prepared by the SJA and consideration/appropriate action by the convening authority. The CA's decision should be memorialized in writing, if possible, particularly if the CA decides to reaffirm his decision that the charges/specs be adjudicated at a GCM. No special format is required, a memo signed by the CA indicating that he has received and considered the new advice and how he wants to dispose of the charges will suffice. > > I copied Col Peterson on this email - please forward to the Col if I used the wrong email address. Please let me know if there are any questions. > > R/ > LtCol Rubin > > > > ----- Original Message ----- > From: Miner Maj Brett C > To: Rubin LtCol Peter R > Cc: Hur Capt Christian P; Gilinsky Capt David > Sent: Fri Nov 19 14:43:01 2010 > Subject: RULING ICO MAJ SCARSELLI > > Sir, > > We will attempt to cure any problem with the Art 34 advice prior to referral. Can you pls send us your preliminary ruling on the matter via email and cc' Col Alex Peterson. > > V/r > Maj Miner > > Brett C. Miner > Major, USMC > Military Justice Officer > MCAGCC / MAGTFTC > Box 788102 > Twentynine Palms, CA 92278 > Comm: 760-830-9077 > Cell: 949-300-4884 > Fax: 760-830-3930 >
Attachment:
Scarselli NJP (final).docx
Description: application/vnd.openxmlformats-officedocument.wordprocessingml.document
Attachment:
smime.p7s
Description: S/MIME cryptographic signature