Friday, February 28, 2014

Social Security Disability Back Logs Are Growing. Waiting Times For Hearings Are Increasing. Fewer Claimants Are Getting Benefits.

Social Security Disability Hearing Backlog Growing Again

 Number of people waiting in the hearing backlog approaches 1 million.

If your application was denied and you must appeal your SSDI benefits claim, it’s important to avoid waiting to file and get help.  The Back Log of people waiting to attend a hearing for Social Security Disability Insurance (SSDI) benefits is growing closer to 1 million. 
As of December 2013, there were 903,720 people who had filed an appeal and were waiting for a hearing before an administrative law judge (ALJ). , according to  data released by the Social Security Administration (SSA).
This is a nearly 7 percent increase from 847,984 hearings pending at the end of fiscal year 2013, and a 17 percent increase from 771,318 hearings pending in FY 2011.
As the waiting time grows longer, more and more people are enduring significant financial hardship to receive SSDI benefits through a program they paid into through FICA taxes while they were working.
The first-quarter FY 2014 data also shows that the time it takes to get a Hearing has increased to 393 days from 382 days in FY 2013.
 Click here to see a state-by-state ranking of pending hearings, based on an analysis of SSA data.

The growing Social Security disability Backlog illustrates the challenges of meeting the SSA’s goals outlined in its FY 2008-13 Agency Strategic Plan.
Social Security had planned to reduce the hearing Backlog to 466,000 claims and the average processing time to 270 days, but a number of factors have worked against this.
Restricted funding has led Social Security to cut the hours its Hearing Offices are open to the public. In addition, the average wait time for calls going to the SSA’s national 800-number have increased. Since September 2010, the SSA has lost more than 7,400 employees from its workforce, according to the U.S. Office of Personnel Management (OPM).
At the same time that waiting times are growing to get a Hearing, it’s becoming much more difficult to receive SSDI benefits.
 For example, the SSA reported that 89,332 people were granted benefits in December 2012. A year later, that number was reduced to 61,983 in December 2013, a 30 percent decline.
SSDI is a federally mandated insurance program that provides monthly benefits to individuals who are under full retirement age (65-67) and who can no longer work because of a severe, long-term or terminal disability. FICA payroll taxes paid by workers and their employers fund the program, which is administered by the SSA.
You Need Help When Filing An SSDI Appeal
Things To Consider When Applying for SSDI benefits.
1.    Consult An Attorney. Those who applied for Social Security Disability Insurance benefits without a representative have the opportunity to get help with a disability appeal. At the hearing level of the SSDI program, nearly eight in 10 applicants have a representative.
2.    Appeal Every Thing. When people apply for SSDI and are denied benefits, they may decide to give up on their application. It’s important to pursue a disability appeal because delaying or missing important dates can hurt someone’s claim. For instance, those who decide to wait and apply later may wait too long and become uninsured. The SSA requires individuals to be fully and currently insured in order to receive SSDI benefits. Generally, this means having a work history of five out of the last 10 years—and waiting too long could mean missing this window.
3.    Provide documentation and details. It may take the SSA two years or longer to review an SSDI claim through the appeals process, which points to the importance of good documentation. Continue to work closely with your doctors to document updates, new tests and test result. It’s also important to correct any errors, explain changes and provide more detail with your SSDI appeal.
More than 168,000 people applied for SSDI benefits in December 2013 and entered the growing line for review of their disability insurance claims.
It is important for new SSDI applicants to realize they need expert help with their application. That expertise and attention to your claim can result in benefits as early as your initial application. That means avoiding disability appeals altogether.

Find more information about SSDI disability appeal see http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757

(Statistics Source: ALLSUP) ABOUT ALLSUP :
Allsup is a nationwide provider of Social Security disability, veterans disability appeal, Medicare and Medicare Secondary Payer compliance services for individuals, employers and insurance carriers. Allsup professionals deliver specialized services supporting people with disabilities and seniors so they may lead lives that are as financially secure and as healthy as possible. Founded in 1984, the company is based in Belleville, Ill., near St. Louis. For more information, go to Allsup.com or visit Allsup on Facebook at http://www.facebook.com/Allsupinc.

Judges Stripped Of Judicial Independence By SSA



SSA increases oversight of judges in disability determinations

The Social Security Administration (SSA) recently announced plans to increase its oversight of judges (ALJs) in the disability determination process.
February 25, 2014 /24-7PressRelease/ -- In an effort to improve consistency in the disability determination process (SSDI), the Social Security Administration (SSA) recently announced plans to step up its oversight of the administrative law judges (ALJ) who are responsible for awarding or denying disability benefits. The Social Security Disability Insurance program provides financial benefits to people who are unable to work because of a mental or physical disability. 
The program has increased substantially in the years since the U.S. economy took a downturn in 2008, and there are now approximately 11 million people receiving disability benefits nationwide. New job descriptions for judges To expand its oversight of the eligibility determination process, the SSA is rewriting the job descriptions of approximately 1,500 judges, who in the past have been given broad discretion over the outcome of eligibility hearings. In recent years, these eligibility hearings have yielded notoriously unpredictable results.
 http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
According to a 2011 report by the Wall Street Journal, an applicant's likelihood of being awarded disability benefits can vary dramatically depending on the judge; while a handful of judges award benefits in nine cases out of ten, others deny benefits nearly as often.  
The new job descriptions will include language stating that the judges are subject to supervision and will remove the words "complete individual independence," the WSJ reported. It is hoped that the changes will increase accountability among the judges and allow the SSA to take corrective measures when judges award or deny benefits inappropriately
 Disability benefit determination 
Before becoming eligible to receive SSDI benefits, an applicant must first establish that he or she meets the SSA's requirements for being considered "disabled." To do so, the applicant must demonstrate that each of the following is true: - The individual cannot work because of a medical condition. - The condition has lasted or is expected to last for a year or more, or is expected to result in death. 
 While the process of applying for SSDI benefits may seem relatively straightforward, in practice it can be cumbersome, time consuming and often frustrating. Not only is it necessary to submit medical records and other evidence of disability, but in most cases applicants are also required to attend an eligibility hearing before an administrative law judge.
 http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
Benefits often available after initial denial 
Overall, first-time disability applicants are denied benefits as much as, according to some estimates, but a majority of denied applicants who pursue an appeal are eventually awarded benefits. 
 In many cases, working with an experienced Social Security Disability lawyer can significantly improve an applicant's chances of being awarded benefits, whether it is a first-time application or an appeal. 
(Article provided by The Berkley Law Firm Visit us at www.berkleylaw.net --- Press release service.)

Tuesday, February 18, 2014

What Is a Reasonable Accomodation With A Crisis Of Consciousness?



 On Wednesday, February 12, the Kansas House voted 72-49 to approve HB 2453, which offers legal protection to individuals and businesses that refuse service for homosexual couples, specifically those looking to get married. Under the bill’s language, individuals, businesses and government employees would be immune from legal reprisal for refusing service if they have “sincerely held religious beliefs” opposing customers’ marriages. The bill is described as protecting religious freedom.
The Kansas House of Representatives passed the bill (pdf) (A copy of the Kansas Bill is attached as Appendix A) that would have broadly legalized discrimination against homosexuals. The bill was halted. But the fight isn’t over.
 Conservatives are trying to use religious freedom as a means of limiting the effects of the spread of homosexual values upon the majority population.Clearly Christians and other morally offended Americans have had enough, but what is a reasonable response to the radical homosexual agenda?

Supporting the bill on the Kansas House floor, Republican state Rep. Charles Macheers proclaimed that “discrimination is horrible. It’s hurtful. … It has no place in civilized society, and that’s precisely why we’re moving this bill.
The bill, written out of fear that the state may soon face an Oklahoma-style gay marriage ruling, will now easily pass the Republican Senate and be signed into law by the Republican governor. The result will mark Kansas as the first state, though certainly not the last, to legalize separate homosexual and straight people in virtually every arena of life.
The bill’s scope was impressive in its expansiveness: Kansans would have been able to legally refuse to provide just about any service to anyone whose relationship they find offensive for religious reasons. The bill specifically enumerated adoption, foster care, counseling, social services, employment and employment benefits, as well as the general categories of “services, accommodations, advantages, facilities, goods, or privileges”, as permissible areas for refusing to provide the service.
In addition to barring all anti-discrimination lawsuits against private employers, the new law permits government employees to deny service to gays in the name of “religious liberty.” This is nothing new, but the sweep of Kansas’ statute is breathtaking. Any government employee is given explicit permission to discriminate against gay couples—not just county clerks and DMV employees, but literally anyone who works for the state of Kansas.
And if a homosexual believed himself to have been discriminated against by anyone decided to sue, they would have not only lost, but under this bill, they would have had to pay the prevailing parties' attorney’s fees.
This backlash is, quite possibly, a response to the increasing spread of homosexual marriage, and the wave of law suits brought by homosexual couples against legitimate private business owners who refuse to take pictures at homosexual weddings and refuse to bake wedding cakes for homosexual couples because it violates the conscious and transgresses the religious rights of the business owners.
 This is the real area of debate. It is whether religiously affiliated institutions like schools or churches and for-profit, non-religiously affiliated businesses should be able to turn away homosexual customers on the grounds of religious freedom. It's the wedding-cake scenario, where an employee at a bakery or a photographer is asked to provide services to a same-sex couple celebrating a wedding. The tragic part of that is that homosexuals believe that it is justifiable to drive those small business owners out of business all together because they find it offensive to their religious beliefs to work for homosexual couples. Some of these family businesses have been around for 30  to 50 years.

In Kansas homosexual marriage has been banned by constitutional amendment since 2006. Kansas legislators asserted that this law was intended to  protect the rights of normal religious folks to exercise their beliefs without state interference.

Religious freedom is a cornerstone of the US constitution. The right to live and worship as we choose is a foundational American value, highlighted in the very first of the original amendments.

As the Kansas defeat suggests, socially conservative states are inclined to pass more expansive exemptions. But legislators in other red states will likely take a lesson from the defeat and limit their scope; however, they will still be broader than those in, say, liberal Massachusetts. Just how broad depends on how quickly legislators in red states act. The Kansas bill didn’t become law possibly because it was overly broad. It was a beginning. More of these laws are being drafted in other states. They are headed for the U S Supreme Court. Since Freedom Of Religion is a Constitutionally protected fundamental American right guaranteed by the Bill of Rights, and homosexual marriage is not mentioned in the Constitution, the Left-leaning Supreme Court will have to decide which right is deserving of Constitutional protection.


(Adopted from "Kansas’ anti-gay bill another attempt to force warped Christianity on others"
By Jill Filipovic, The Guardian, guardian.co.uk © Guardian News and Media 2014)

APPENDIX A.  The full text of the Kansas Bill.
As Amended by House Committee
Session of 2014
HOUSE BILL No. 2453
By Committee on Federal and State Affairs
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AN ACT concerning religious freedoms with respect to marriage.
Be it enacted by the Legislature of the State of Kansas:
Section 1. Notwithstanding any other provision of law, no individual
or religious entity shall be required by any governmental entity to do any
of the following, if it would be contrary to the sincerely held religious
beliefs of the individual or religious entity regarding sex or gender:
(a) Provide any services, accommodations, advantages, facilities,
goods, or privileges; provide counseling, adoption, foster care and other
social services; or provide employment or employment benefits, related to,
or related to the celebration of, any marriage, domestic partnership, civil
union or similar arrangement;
(b) solemnize any marriage, domestic partnership, civil union or
similar arrangement; or
(c) treat any marriage, domestic partnership, civil union or similar
arrangement as valid.
Sec. 2. (a) Notwithstanding any other provision of law, no refusal by
an individual or religious entity to engage in any activity described in
section 1, and amendments thereto, shall result in:
(1) A civil claim or cause of action under state or local law based
upon such refusal; or
(2) an action by any governmental entity to penalize, withhold
benefits from, discriminate against or otherwise disadvantage any
protected individual or religious entity, under any state or local law.
(b) Any individual or religious entity named in or subject to a civil
action, an administrative action or any action by a governmental entity
may immediately assert the protections provided by section 1, and
amendments thereto, or this section, as a defense by moving to dismiss
such action. If the motion to dismiss is filed in an action before an
administrative tribunal, within 15 days after the filing of such motion any
party to such action may elect to transfer jurisdiction of such action to a
district court with proper venue. Within 60 days after such transfer of
jurisdiction, the district court shall decide whether the claimed protection
applies. The district court shall not permit any additional discovery or fact-
finding prior to making its decision.
(c) If a governmental entity, or any person asserts a claim or cause of
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HB 2453—Am. by HC
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action, or takes any adverse action against an individual or religious entity
in violation of subsection (a), such individual or religious entity shall be
entitled upon request to recover all reasonable attorney fees, costs and
damages such individual or religious entity incurred as a result of such
violation.
(d) If an individual employed by a governmental entity or other non-
religious entity invokes any of the protections provided by section 1, and
amendments thereto, as a basis for declining to provide a lawful service
that is otherwise consistent with the entity's duties or policies, the
individual's employer
, in directing the performance of such service,
shall either promptly provide another employee to provide such service, or
shall otherwise ensure that the requested service is provided, if it can be
done without undue hardship to the employer.
Sec. 3. As used in sections 1 through 4, and amendments thereto:
(a) "Religious entity" means an organization, regardless of its non-
profit or for-profit status, and regardless of whether its activities are
deemed wholly or partly religious, that is:
(1) A religious corporation, association, educational institution or
society;
(2) an entity operated, supervised or controlled by, or connected with,
a religious corporation, association, educational institution or society; or
(3) a privately-held business operating consistently with its sincerely
held religious beliefs, with regard to any activity described in section l,
and amendments thereto.
(b) "Governmental entity" means
any state office or officer,
department, board, commission, institution, bureau or any agency, division
or unit within any office, department, board, commission or other state
authority, and any political or taxing subdivision of this state constituted
under or acting under the authority of the laws of this state, including, but
not limited to, any county, city, municipality, township, district,
postsecondary educational institution, as defined by K.S.A. 74-3201b, and
amendments thereto, or quasi-public corporation or other quasi-public
entity
the executive, legislative and judicial branches and any and all
agencies, boards, commissions, departments, districts, authorities or
other entities, subdivisions or parts whatsoever of state and local
government, as well as any person acting under color of law
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Sec. 4. (a) If any word, phrase, clause or provision of sections 1
through 4, and amendments thereto, or the application of any such word,
phrase, clause or provision to any person or circumstance is held invalid,
the remaining provisions shall be given effect without the invalid portion
and to this end the provisions of sections 1 through 4, and amendments
thereto, are severable.
(b) Nothing in sections 1 through 4, and amendments thereto, shall be
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Sunday, February 9, 2014

Preliminary Investigation Of Sexual Misconduct Allegations At Coast Guard Academy


New London — A cadet at the U.S. Coast Guard Academy (USCGA) is accused of breaking into a dorm room and sexually abusing another cadet.
An Academy spokesman said the alleged incident occurred in mid-September in the Chase Hall barracks.
The accused cadet is suspected of violating Articles 120, 130 and 134 of the Uniform Code of Military Justice (UCMJ), the military’s criminal code, which prohibit abusive sexual contact, housebreaking and unlawful entry. The charges were preferred, or formally initiated, and then served to the accused on Monday, February 3, 2014.
A military attorney, or judge advocate general, will now conduct an Article 32 investigation to determine whether there is enough evidence to warrant a court-martial.
The Academy would not identify the gender of either cadet involved. Capt. Eric C. Jones, the academy’s assistant superintendent, said that while Article 120 includes rape, in this case, “the alleged offense is not rape.”
The academy is sending the accused off campus to work at another Coast Guard unit while the process moves forward, Jones said in an interview Tuesday, February 4. The alleged victim is taking classes and using the support services on campus.
Rear Adm. Sandra L. Stosz, the academy superintendent, decided to proceed with the Article 32 investigation, Jones said.
This type of investigation has often been compared to grand jury proceedings in the civilian judicial system since both are concerned with determining whether there is sufficient probable cause to believe a crime was committed and whether the person accused of the crime committed it. The military investigation, however, is broader in scope and more protective of the accused.
Jones did not release the names of the cadets or many details about the alleged incident, citing the fact that the investigation is ongoing. The Coast Guard Investigative Service (CGIS) conducted the initial investigation.
Jones added that the Academy is concerned with protecting the rights of the victim and the accused and ensuring the legal process is fair.
“I ask everyone to be patient and not to engage in supposition and rumors,” he said. “As soon as it gets to the point where it’s appropriate to release information directly to the public about the case, we’ll be ready to do that.” An Article 32 hearing is a public hearing.
The only cadet ever court-martialed at the Coast Guard Academy was tried on sexual assault charges in 2006. Webster M. Smith was convicted on extortion, sodomy and indecent-assault charges and acquitted of rape.
(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled "Conduct Unbecoming An Officer and a Lady" available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )
The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial. Stosz, as the convening authority, will decide which path to take.
Jones said he is hoping for a decision within one to three months, but there are legal processes that could extend that timeline. (By Jennifer McDermott)
j.mcdermott@theday.com
(CGA cadet accused of sexually abusing another cadet,McDermott J.,The Day, Military News, Feb 05, 2014) 
(ADDITIONAL EXPLANATORY INFORMATION)

Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as "Rape and carnal knowledge," but is now entitled "Rape, sexual assault, and other sexual misconduct."
The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the "General" Article).
The new Article 120 replaces the following Article 134 offenses:
The UCMJ change also amends two Article 134 offenses:
(1) Indecent language communicated to another - other than when communicated in the presence of a child - remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.
(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is "compelled," it becomes an Article 120 offense.

ELEMENTS OF THE OFFENSE
Rape
By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.
By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.
By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.
By administration of drug, intoxicant, or other similar substance:
    (i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
    (ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
    (iii) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.
Aggravated sexual assault
By using threats or placing in fear:
    (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).
By causing bodily harm:
    (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by causing bodily harm to another person.
Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:
    (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)
    (ii) That the other person was substantially incapacitated;
    (iii) That the other person was substantially incapable of appraising the nature of the sexual act;
    (iv) That the other person was substantially incapable of declining participation in the sexual act; or
    (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.
Aggravated sexual contact
By using force:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by using force against that other person.
By causing grievous bodily harm:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing grievous bodily harm to any person.
By using threats or placing in fear:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.
By rendering another unconscious:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by rendering that other person unconscious.
By administration of drug, intoxicant, or other similar substance:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) (a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
    (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
    (c) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.
Abusive sexual contact
By using threats or placing in fear:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).
By causing bodily harm:
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing bodily harm to another person.
    (i) That the accused engaged in sexual contact with another person; or
    (ii) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements)
    (iii) That the other person was substantially incapacitated;
    (iv) That the other person was substantially incapable of appraising the nature of the sexual contact;
    (v) That the other person was substantially incapable of declining participation in the sexual contact; or
    (vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.
Wrongful sexual contact
    (a) That the accused had sexual contact with another person;
    (b) That the accused did so without that other person's permission; and
    (c) That the accused had no legal justification or lawful authorization for that sexual contact.
     Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:
Indecent act
    (a) That the accused engaged in certain conduct; and
    (b) That the conduct was indecent conduct.
Indecent exposure
    (a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
    (b) That the accused's exposure was in an indecent manner;
    (c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused's family or household; and
    (d) That the exposure was intentional.
Aggravated sexual abuse of a child
    (a) That the accused engaged in a lewd act; and
    (b) That the act was committed with a child who has not attained the age of 16 years.
Forcible pandering
    (a) That the accused compelled a certain person to engage in an act of prostitution; and
    (b) That the accused directed another person to said person, who then engaged in an act of prostitution.
Note: If the act of prostitution was not compelled, but "the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused," see Article 134.

DEFINITIONS
Sexual act. The term 'sexual act' means --
(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or
(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
Sexual contact. The term 'sexual contact' means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.
Grievous bodily harm. The term 'grievous bodily harm' means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in Article 128, and a lesser degree of injury than in section 2246(4) of title 18.

Dangerous weapon or object. The term 'dangerous weapon or object' means --
(A) any firearm, loaded or not, and whether operable or not;
(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or
(C) any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.
Force. The term 'force' means action to compel submission of another or to overcome or prevent another's resistance by --
(A) the use or display of a dangerous weapon or object;
(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or
(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.

Threatening or placing that other person in fear.The term 'threatening or placing that other person in fear' for the charge of 'rape' or the charge of 'aggravated sexual contact' means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.
Threatening or placing that other person in fear. In general. The term 'threatening or placing that other person in fear' for the charge of 'aggravated sexual assault, or the charge of 'abusive sexual contact' means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.
Inclusions. Such lesser degree of harm includes --
    (i) physical injury to another person or to another person's property; or
    (ii) a threat --
    (I) to accuse any person of a crime;
    (II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
    (III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.
Bodily harm. The term 'bodily harm' means any offensive touching of another, however slight.
Child. The term 'child' means any person who has not attained the age of 16 years.
Lewd act. The term 'lewd act' means --
(A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or
(B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.
 Indecent liberty. The term 'indecent liberty' means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one's genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child's consent is not relevant.
Indecent conduct. The term 'indecent conduct' means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent, and contrary to that other person's reasonable expectation of privacy, of --
(A) that other person's genitalia, anus, or buttocks, or (if that other person is female) that person's areola or nipple; or
(B) that other person while that other person is engaged in a sexual act, sodomy (under Article 125 ), or sexual contact.
Act of prostitution. The term 'act of prostitution' means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.
Consent. The term 'consent' means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if --
(A) under 16 years of age; or
(B) substantially incapable of --
(i) appraising the nature of the sexual conduct at issue due to --
(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or
(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;
(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.
Mistake of fact as to consent. The term 'mistake of fact as to consent' means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused's state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

MAXIMUM PUNISHMENTS
Rape and Rape of a Child: Dishonorable Discharge, death or confinement for Life, and forfeiture of all pay and allowances.
Aggravated Sexual Assault: Dishonorable Discharge, confinement for 30 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Assault of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Abuse of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Contact:Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Aggravated Sexual Contact with a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.
Abusive Sexual Contact with a Child:Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.
Indecent Liberty with a Child: Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.
Abusive Sexual Contact: Dishonorable Discharge, confinement for 7 yrs, and forfeiture of all pay and allowances.
Indecent Act: Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.
Forcible Pandering:Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.
Wrongful Sexual Contact:Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.
Indecent Exposure: Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Article 130—Housebreaking
















Text.
“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”
Elements.
(1) That the accused unlawfully entered a certain building or structure of a certain other person; and
(2) That the unlawful entry was made with the intent to commit a criminal offense therein.
Explanation.
(1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essential that there be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one of the offenses made punishable under Articles 118 through 128.
(2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and must be alleged and proved to support a conviction of this offense. If, after the entry the accused committed a criminal offense inside the building or structure, it may be inferred that the accused in-tended to commit that offense at the time of the entry.
(3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense, is a “criminal offense.”
(4) Building, structure. “Building” includes a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an in-closed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry.
(5) Entry. See paragraph 55c(3).
(6) Separate offense. If the evidence warrants, the intended offense in the housebreaking specification may be separately charged.
Lesser included offenses.
(1) Article 134—unlawful entry
(2) Article 80—attempts
Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

UCMJ Article 134—General article

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

Elements.
The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder or neglect to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, then the following proof is required:
    (1) That the accused did or failed to do certain acts; and
    (2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Explanation.
(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. How-ever, see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen.
(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 1).
    (a) To the prejudice of good order and discipline. “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are preju dicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is con-fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However, see R.C.M. 203concerning subject-matter jurisdiction.
    (b) Breach of custom of the service. A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the vari ous armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive. See paragraph 16c.
(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

(4) Crimes and offenses not capital (clause 3).
    (a) In general. State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State law becomes Federal law of local application under section 13 of title 18 of the United States Code(Federal Assimilative Crimes Act— see subparagraph (4) (c) below). For the purpose of court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in a reas of federal jurisdiction).
(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting ( 18 U.S.C. § 471), and various frauds against the Government not covered by Article 132.
(c) Crimes and offenses of local application.
    (i) In general. A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal statutes (defining particular crimes), and a general federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws). 
(5) Limitations on Article 134.
    (a) Preemption doctrine. The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121. 
     
(b) Capital offense. A capital offense may not be tried under Article 134.
 Above Information from Manual for Court Martial.

Friday, February 7, 2014

Social Security Customer Service Is Mean And Inefficient

Social Security Administration's Cautionary Tale of Customer Service

A trip to try to correct a mistake in my Social Security files revealed customer service at its worst and all that is wrong with the government these days -- a government that seems to be inefficient, mean and certainly not "for the people." In fact, everything about my experience screamed in defiance of at least four of cardinal rules of customer service.
Rule #1: Put customers first.
My local Social Security office is a depressing place -- a gray building with metal blue chairs that aren't meant to be sat in for 30 minutes, let alone for the two to three hours that it takes to get any matter resolved here.
I took my number and sat down among the sea of resigned and frustrated patrons. Sitting next to me was a lovely woman who works for the Montgomery County Schools. This was her second visit because the first time around, she waited two hours and just as they called her number, she had to return to work. We chatted as we watched absolutely nothing happen and no movement in the crowded waiting room.
Rule #2: Respect your customer's time (and investment of energy, effort, etc.).
About 90 minutes into my wait, a supervisor came out and told us the computer had crashed, not just in their office but region-wide. Hmm, I wondered, is the Social Security Administration site connected to Healthcare.gov? For those of us whose business required a look at our computer records, we were out of luck. Ninety-minutes of what could have been productive time, earning income that could be taxed and go back into social security wasted.
Rule #3: Customer service means customer service.
Later in the day, I called the toll free number to see if I could make an appointment. Since my issue didn't fit the menu, I had to talk to an agent and that was a 45-minute wait. However, I opted to have them call me back when my turn came up. And so 45-minutes later they did call back and then put me on hold for 15 minutes. When I finally talked to someone, I found out that for my issue, I could not make an appointment. Yes, you guessed it, I have to come back.
Rule #4: Respond. Quickly.
Steamed, I called my Congressman and to my dismay, no one answered the phone, not even a machine at the constituent office. So I called the office on Capitol Hill and got a lovely young man who could only apologize and take my number and promised someone will call me back.
Rule #5: Be pleasant, as well as helpful.
These experiences are text book examples of how not to deliver customer service. To be sure budget cutbacks have reduced staffing and the Patriot Act has put into place greater scrutiny but there must be ways to automate some basic functions and structure the offices to run more efficiently. And everyone in those offices and who answers the phones could definitely use training in how to talk to people and maybe even crack a smile.
If there were a competitor, I would surely take my business elsewhere. Sadly, there isn't.
 (By Liz Wainger on Twitter: www.twitter.com/lizwainger)