Alaska’s major active-duty installations are in Anchorage and Fairbanks. The Army is at Fort Wainwright and JBER, the Air Force at Eielson and JBER on the Elmendorf side, and the Coast Guard on Kodiak Island. Hiring civilian counsel for a case in Alaska makes sense when the case is serious enough to threaten a career or end in confinement, registration, or a punitive discharge, and for soldiers who are under investigation, who don’t get free TDS counsel until charges are preferred. A court-martial in Alaska is the same as anywhere else when it comes to the law, but defendants there face complications that have nothing to do with the UCMJ. Distance, weather, and the absence of prominent local civilian counsel can make a case in Alaska more difficult and expensive to defend than most other places.
Military Installations in Alaska
JBER (Joint Base Elmendorf-Richardson) in Anchorage nominally combines the former Elmendorf Air Force Base and Fort Richardson. In reality, the two installations remain distinct entities.
Many Airmen, including military attorneys, still call their side of the installation Elmendorf. Soldiers tend to refer to theirs as JBER (pronounced “Jay-Bear”). Air Force OSTC, Staff Judge Advocate, and OSI handle the Air Force cases at Elmendorf. Their Army counterparts do the Army cases.
Fort Wainwright in Fairbanks has a robust volume of UCMJ cases. Eielson Air Force Base, also near Fairbanks, is quieter. Fort Greely at Delta Junction is a much smaller operation than JBER and Wainwright, so it sees less court-martial action. The Coast Guard operates Base Kodiak, the largest Coast Guard base in the country by acreage, with its own special trial counsel structure under the Department of Homeland Security.
The Marine Corps is expanding its Alaska presence, and I MEF Marines from Camp Pendleton will be training in the state. Any UCMJ trouble occurring during those training missions will likely be investigated locally but overseen from and court-martialed back at Pendleton.
When an Alaska UCMJ Case Justifies the Cost of Civilian Counsel
Many UCMJ cases don’t really need a civilian lawyer. Nonjudicial punishment for a brief AWOL, or a positive urinalysis for THC, or even a Special Court-Martial with a favorable pretrial agreement already in place wouldn’t justify the cost. Adding civilian counsel is the right move when the case threatens a career or could end in confinement, registration as a sex offender, or a punitive discharge.
Soldiers have an additional reason: they don’t get free TDS counsel until court-martial charges are preferred, which means the investigation phase, the longest period of an Alaska case, one that could drag on for over a year, will occur without any legal advice or protection unless the soldier hires a civilian military lawyer.
Logistics Can Make an Alaska UCMJ Case More Challenging
Alaska cases are the same as anywhere else when it comes to military law and procedure. The UCMJ and other aspects of military justice are no different at Twentynine Palms or Wright-Patterson than at Wainwright, which is why qualified civilian military attorneys can take clients from all branches of the military. The differences for cases in Alaska are about circumstances like distance, scheduling, weather, and the availability of judges, lawyers, and witnesses.
Army OSTC and Air Force OSTC run serious cases (called “covered offenses”) from their offices at JBER in Anchorage. A prosecutor handling a case at Fort Wainwright or Eielson is based about 350 miles south of where the incident occurred. OSTC can appear by video for some hearings, but the grind of an investigation typically requires flying to Fairbanks to meet with CID or OSI, to interview the complaining witness, and to interview other witnesses. For the same reason, the deferral decision in a case out of Fairbanks can take longer than it would in a JBER case.
The military judge pool is small, drawn mostly from JBER and JBLM. Travel takes longer and gets disrupted fairly often. Bases get shut down for weather. Trial days themselves tend to run long for everyone, because the government wants traveled witnesses and members released back to their duties as quickly and cheaply as possible. And the judge and lawyers might have a court-martial somewhere else the following week and can’t risk the case carrying over past Friday, especially when there’s bad weather coming in. An attorney who tries to redefine what a “day” is, calling it eight hours from the door of his hotel in the morning to the door of his hotel at night, is purposely trying to inflate the fee.
The slower investigation and added drag of travel might be an opportunity for the defense at the Article 32 stage. Every trip OSTC makes (flying to Fairbanks for the preliminary hearing, flying back for motions, witness preparation, and trial, etc.) costs more in Alaska than the same effort costs OSTC at Fort Hood traveling to Fort Bliss. OSTC doesn’t care so much about cost in terms of money, but cost in terms of time is very much on their minds. They’re overworked as it is. Across the services, OSTC eagerly looks for reasons to defer everything except the most severe cases backed by strong corroborating evidence. The additional travel during the investigative stage is one disincentive, and if the case gets charged and goes to an Article 32 hearing, a preliminary hearing officer’s recommendation against referral can be exactly the top cover OSTC is looking for to defer a case, when it means freeing up all that time for more promising trials.
The Cost of Hiring Counsel for an Alaska UCMJ Case
Getting the kind of help a serious case calls for will probably require hiring an experienced civilian military lawyer from outside the state, which imposes financial hardships that a service member in the lower 48 doesn’t have to deal with. Some firms charge more for an Alaska case just because of the extra travel time spent on the round trip compared to a case close to their office. On top of that, firms that advertise a flat fee (while hiding what those fees are) often write fine print into the contract that can push the true cost of representation well past the number they stated during the telephone consultation. These fee “escalators” are a problem for a member anywhere, but they can be worse in Alaska because the conditions that trigger them (long trial days, extra trial days, travel time) come up more easily here. And if the case happens during the summer, the attorney’s travel costs for hotel and air fare will be exponentially higher than they would be in winter. Taken together, these burdens can make a fair defense harder to get in Alaska than in Alabama or Ohio.
The way most firms see it, for one attorney the round-trip travel for an Alaska case can take upwards of 40 hours. If that time isn’t billed, the firm can imagine it’s losing a week of income. Firms that bill a “flat” trial fee can recover that time in ways the quoted fee for a preliminary hearing or court-martial doesn’t reveal.
How Flat Fees Can Be Higher for Alaska UCMJ Cases
| Contract Item | The Fine Print | Why It Raises Costs in Alaska |
|---|---|---|
| Limited number of trial days | The flat fee covers a set number of on-site trial days | Alaska trials run long because of inclement weather or travel issues; extra days add thousands of dollars |
| Limited number of hours | A trial day is defined as eight hours | Extra hours on long trial days get billed at the firm’s hourly rate |
| Travel time billed apart from fees | Airfare and lodging are one charge; the attorney’s hours getting there are another | Each day of travel adds thousands of dollars to the “flat” fee |
| Remote-base surcharge | A surcharge applies to OCONUS, remote, or bad weather installations | Alaska is designated as a remote location, so the fee rate is higher |
What those contract terms mean:
- Limited number of trial days. The contract quotes a fee for a set number of on-site days. A court-martial might take two days or five, not including travel days and preparation days, and it’s not rare for a trial anywhere to spill over to a second week. Any days on-site beyond the number of days specified in the contract will create additional costs in the thousands.
- Limited number of hours (the eight-hour “day”). The contract defines a trial day as eight hours, often starting when the attorney leaves the hotel. A day that runs ten or twelve hours generates extra hours billed at the firm’s hourly rate.
- Travel time billed apart from fees for services. The attorney’s hours spent traveling might be billed at a per-day rate of several thousand dollars, instead of absorbing travel time into the stated fee as a cost of doing business.
- Remote-base surcharge. Some fee agreements designate Alaska, OCONUS, and other remote locations as places that justify a higher fee for services.
A service member at any installation, not just in Alaska, should ask the attorney how each of these issues is handled, and the answer should be in the contract whether or not it comes up during the consultation.
Gagne, Scherer & Associates UCMJ Cases in Alaska
The firm has tried cases in Alaska since 2006, at JBER, Fort Wainwright, and Eielson. A sample of that work:
Fort Wainwright SPC: Accused of CSAM, Prosecution Forced to Drop Its Case Mid-Court-Martial
Our client was accused of possessing and distributing CSAM through social media. The investigation began with the RCMP, was handed to the DOJ, and finished with CID. The prosecution refused to offer a favorable deal, so Gagne, Scherer & Associates prepared for trial. As trial approached, it became clear the prosecution didn’t have what it needed to get its case into evidence. At the court-martial, Gagne, Scherer & Associates raised a little-known rule governing the admission of foreign business records, the RCMP records that had started the case, and the objection kept the government from getting through its first witness. Our attorneys rejected several prosecution plea offers made in the courtroom, ultimately securing an administrative separation with a General discharge and no UCMJ action taken.
JBER, Army, PV2: Accused of Sexual Assault, Charge Reduced to Non-Registrable Offense, SPCM, Confinement Capped at 30 Days
Our client was accused of sexually assaulting a friend while she slept after the two had watched a movie in the barracks. They’d had a romantic relationship that had ended shortly before the incident. At the time, Gagne, Scherer & Associates had a high volume of cases at JBER and Fort Wainwright, and the firm used every opportunity to advocate for a favorable deal, eventually securing one that avoided the sex offense conviction, resolved at the misdemeanor (Special Court-Martial) level, and capped his confinement at 30 days, of which he’d serve about 25.
JBER, Army, SPC: Positive Urinalysis for Cocaine, Acquitted by Military Judge
Our client tested positive on a urinalysis for cocaine at a nanogram level in the hundreds. Knowing the science was favorable to the accused in a situation like that, we raised the defense of unknowing ingestion, building a timeline through witnesses and other evidence establishing that our client was never in a position to knowingly ingest the drug, and using cross-examination to get the prosecution’s own witness to concede that unknowing ingestion was plausible. With no government evidence to rebut the timeline and the toxicologist conceding the defense theory, the military judge acquitted our client.
Fort Wainwright CW2: Accused of Sexual Assault and Battery, Case Dropped
Our client, a pilot, was accused by his girlfriend, a local woman, of domestic violence and sexual assault. We had an ongoing case at Fort Wainwright at the time and were in regular contact with OSTC, so we reached out the same day we were hired and provided background on the girlfriend, who had legal trouble of her own. Over the next few months, we guided the client through law enforcement attempts to search his residence and interview him, security clearance questionnaires, and other situations that could have led to damaging admissions. OSTC out of JBER initially intended to prefer court-martial charges but deferred the case. We shifted our advocacy to the SJA office and command, making sure the girlfriend’s credibility deficits were known to everyone involved in deciding what to do with the case. The case was dropped outright, and our client resumed his aviation career with the overseas assignment he’d been in line for before the allegations were made.
JBER, USAF, SrA: Accused of Sexual Harassment, Resolved Without UCMJ Action, Career Preserved
Our client, a linguist, was accused by a younger female airman of making improper comments. After hearing our client’s version of events, and making sure our client wasn’t interrogated, we contacted Security Forces (who had taken the case from OSI) and reframed the situation as a generational misunderstanding, since the two were about 15 years apart in age. We provided evidence of our client’s good intentions, the fact that all communications were out in the open, and the younger airman’s relationship with our client and his wife. We made the same presentation to the prosecution. The case was resolved with a Letter of Reprimand. Our client kept his position with no UCMJ action taken.
FAQs About Alaska Court-Martial Cases
Why do cases at Fort Wainwright and Eielson take longer to resolve than cases at JBER?
OSTC prosecutes the serious cases at Wainwright and Eielson from offices at JBER in Anchorage, about 350 miles south. Before deciding whether to go forward on a case or defer it, the prosecutor has to travel to Fairbanks to meet with CID or OSI, the chain of command, the complaining witness, and other witnesses. These trips prolong the investigation and the go-forward decision in a way that doesn’t happen at JBER, where OSTC and the people they need to talk to are on-site. A trial at Wainwright or Eielson doesn’t take longer just because OSTC comes from JBER; the delay happens during the investigation, before charges are preferred. This can be particularly stressful for soldiers under investigation, who don’t qualify for free TDS counsel during the investigation before court-martial charges are served.
Where do service members in Alaska get into trouble?
Every base has off-limits establishments that can lead to UCMJ cases. Strip clubs, known drug dens, and so on. After Alaska legalized marijuana, cannabis dispensaries went on the Fort Wainwright off-limits list, along with massage parlors that aren’t selling massages. The real trouble tends to happen in the bars. The Mecca in Fairbanks is a notorious example, a known hangout for drunks and addicts. Domestic violence cases happen at home. Article 120 incidents come from the dorms. CSAM cases can happen anywhere. But avoiding these off-limits establishments is a good place to start.
What unique circumstances come up in Alaska UCMJ cases?
A military case in Alaska can involve joint investigations among US military agents, federal law enforcement, state police, and the Royal Canadian Mounted Police, so an Alaska case can require an attorney to have expertise in several law enforcement protocols, not just what OSI or CID does, and the judgment to know which lesser-known evidentiary rules might help the defense.
The conditions of a case in Alaska can create challenges you don’t see elsewhere. We’ve tried cases in Fairbanks in midwinter; in Anchorage during summer when the sun was still out at two in the morning; and a sexual assault court-martial in an airplane hangar at Elmendorf during peak COVID. We’ve had a number of hearings and trials in Alaska paused due to weather.
Does Gagne, Scherer & Associates impose surcharges or travel-time fees for Alaska UCMJ cases?
No. Our flat fee is what it says. All services are included. Gagne, Scherer & Associates doesn’t limit the number of trial days or define what a “day” means. All travel time for both attorneys is included in the fee, as are additional days on site caused by weather or travel disruptions. Travel costs like airfare and lodging are billed at actual cost under terms set out in the agreement. The fee for services in a case at JBER or Fort Wainwright is the same as the fee for a case at Fort Bragg or Great Lakes.
Can anything be done about the higher summer travel costs?
When it’s in the client’s interest and the schedule allows for it, Gagne, Scherer & Associates tries to docket Alaska cases before or after summer. Hotel rates near Anchorage and Fairbanks in tourist season can run three times the winter rate. Purposely setting a Wainwright case in January is an unusual move, since most attorneys wouldn’t go out of their way to travel to Fairbanks in winter, but it’s one way to ease the financial strain on those serving their country in Alaska.
Gagne, Scherer & Associates: Court-Martial Lawyers for Alaska
If you are stationed at JBER, Fort Wainwright, Eielson, or anywhere else in Alaska and facing investigation, court-martial, or administrative action under the UCMJ, call an experienced military lawyer at (224) 935-6172. You will speak directly with an experienced military lawyer.