Fifth in a series of articles addressing “Stolen Valor”

​By Barry J. Bernstein*

           Prior articles in this series addressed the issue of “stolen valor.”  They also reviewed the first Congressional Act, which was struck down by the US Supreme Court and the replacement Act that probably resolved the Court’s issues.  This article addresses South Carolina’s version of stolen valor protections.

            The 2013 federal Act is narrowly defined and corrected the issues that the US Supreme Court relied upon to strike down the prior Act.  The South Carolina version passed in 2014 is much more expansive and subject to Court scrutiny.  The South Carolina version is known as the “South Carolina Military Service Integrity and Preservation Act.” S.C. Code Ann. 16-17-760 (2014).  Part of the state Act mirrors the protections of federal law, but now makes it a state crime as well.  That portion of the SC version is probably safe in Court review.

             However, the state Act differs significantly in two ways from the federal Act  Both distinctions may find problems in the Courts.  The first significant difference is that instead of only protecting combat awards, it protects ALL federal military service.  Even lying about serving at all or earning the most trivial decoration would be a violation if accompanied by a benefit of the lie.  The second significant distinction from federal law is that where federal law simply states “tangible benefit” for the fraud, the SC statute includes specific examples that may be scrutinized by the Court.

               Like the federal counterpart, the state Act requires a lie about service accompanied by a tangible benefit to for a fraud.  These two parts to form the fraud have different issues:

                         THE LIE.  The federal Act is limited to only the “top 3” medals, the Purple Heart, and combat service awards.  The SC version is tied to any federal military service.  The court may have issues with such a broad incursion into 1st Amendment protected speech.
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                             TANGIBLE BENFIT.  Both federal and state acts identify money, property, or a “tangible benefit” for the lie to form a fraud.  The SC version notes tangible benefits to include employment issues, any action that can effect the outcome of a court case, and seeking elective office as a tangible benefits.  Each of these have different issues for Court scrutiny.

            Clearly, South Carolina has upped the ante on Stolen Valor as a crime.  It still must face Court scrutiny as to 1st Amendment free speech issues.  It will be interesting to see how well the South Carolina Military Service Integrity and Preservation Act hold up in the future.

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

Fourth in a series of articles addressing “Stolen Valor”

By Barry J. Bernstein*

            Frustrations with military imposters led to Congressional action.  The Stolen Valor Act of 2005 was struck down by the US Supreme Court as trying to create a new crime against free speech for lying.  Fortunately, two swing votes in the Court’s opinion established a means where the Act could be revised in a manner to survive 1st Amendment challenges. 
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            Upon the 2005 Act being overturned, Congress almost immediately passed the Stolen Valor Act of 2013. The new Act went from a newly introduced bill to presidential signature in less than five months.  It specifically addressed the concerns of the swing vote and tied lying about entitlement to the protected decorations to gaining a financial benefit.  In doing so, it made the crime about fraud.  Fraud is an existing exemption to 1st Amendment protected speech and is firmly established in law.  With the new language of the Act creating a crime for fraud, the new Act has a great chance of surviving court scrutiny.
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So what does the new Act protect?
A. The “High 3” medals
      1. The Medal of Honor
      2. Service crosses (Distinguished Service Cross, Navy Cross & Air Force Cross)
      3. The Silver Star

B. The Purple Heart
C. Combat service awards:
     1. Navy & Marine: The Combat Action Ribbon
     2. Army: Combat Infantryman Badge, Combat Action Badge, Combat Medical Badge
     3. Air Force: Combat Action Medal

         Keep in mind, even if someone falsely represents to have entitlement to one of these decorations, they also must receive some “tangible benefit” for it to be a federal crime under the Act.

        The Stolen Valor Act of 2013 is still to be tested in the Courts.  The new Act is more than likely to survive the prior 1st Amendment attacks that invalidated the 2005 Act.  Because the 2013 Act specifically is founded in the concept of fraud it is already outside the protection of the 1st Amendment.  Also, the Court has become more conservative in composition and most of the newer justices are likely to side with the minority in the Alvarez case.  The battleground in any appeal of a conviction under the Act is likely to be found in the issue of what constitutes a “tangible benefit.”   

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

Third in a series of articles addressing “Stolen Valor”

            In prior posts I noted the rising tide of concern for military imposters and a book called Stolen Valor.  The book’s name became synonymous with the issue and “stolen valor” took a life of its own as an issue.  Following a number of high-profile cases, Congress was ready to act. 

          Congress overwhelmingly passed the Stolen Valor Act of 2005.  The Senate was unanimous in passing it, and the House simply used a voice vote to approve it.  The Act specifically had an intent to “to protect the reputation and meaning of military decorations and medals.”  Interestingly the Act only protected a handful of combat awards, not all military service.    

             In 2007, Xavier Alvarez introduced himself as a newly elected water district member at a formal meeting saying “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor.”  The Medal of honor was one of the protected decorations in the Act.  None of the statement was true. Alvarez was subsequently indicted for violating the Act and the trial court rejected his claim that the Act violated his free speech rights.  On appeal, the 9th Circuit reversed the trial court in agreeing with Alvarez that the Act violated free speech. United States v. Alvarez, 617 F. 3d 1218 (2010).  On appeal to the US Supreme Court, the 1st Amendment issue was going to be clarified.

         In 2012 the Supreme Court ruled in Alvarez’s favor, basically saying lying was protected free speech.  The Court struck down the 2005 Act in a 6-3 plurality as being a legislative attempt to increase the limited exceptions to free speech.  United States v. Alvarez, 567 U.S. 709 (2012). A plurality means that not enough were in his favor for a clear majority.  Two justices made up the “swing” vote to concur with the outcome, but not the reasoning.  The swing vote is important because with some revision, they could swing to the minority form a new majority to sustain a future challenge.  The swing vote found that if the stolen valor lie was associated with fraud, then it would fit within an existing limit on free speech.  They even suggested if the government thought it was an important issue that a public database should be available to expose imposters.

            Almost immediately after The Stolen Valor Act of 2005 was invalidated, the DoD established a website with the names of recipients of the Medal of Honor, the different service crosses and the Silver Star.  This was just as the swing vote had suggested in its opinion, so today the “High 3” medals recipients can be easily confirmed or exposed.  Congress also listened to the swing vote, and quickly passed the Stolen Valor Act of 2013.  It specifically addressed the concerns of the swing vote and again overwhelmingly passed both houses of Congress. My next article addresses the new Act and where it stands today.

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

Second in a series of articles addressing “Stolen Valor”

By Barry J. Bernstein*

            Since the Supreme Court loosened restrictions on misappropriations on military uniforms, the issue seemed to fade.  However, while the wear of the uniform faded as an issue, the post-Vietnam era brought a new issue of people claiming military service or awards falsely.  This created a new legal battle about military imposters and 1st Amendment free speech which brought a new term “Stolen Valor.”

           High-profile stories of false claims of military service in the 1990’s raised this issue.  Senator Tom Harkin falsely claimed to have flown combat missions in Vietnam.  Congressman Wes Cooley lied about serving in the Special Forces in Korea.  Ambassador Larry Lawrence was disinterred from Arlington Cemetery when revelations of his lying about military service arose.  Actor Brian Dennehy (the sheriff in the first Rambo movie) said he was wounded in Vietnam, but publicly admitted it was a lie. 

             Stolen Valor: How the Vietnam Generation Was Robbed of its Heroes and its History was written and self-published by B.G. Burkett in 1998.  Its timing was after so many high-profile lies of military service.  It addressed general misperceptions of the war, but one of its parts struck a nerve.  The third part of the book addressed military imposters and the ineptitude of anyone to expose them.   

          By example, Burkette exposed Frank Dux.  Dux was a well-publicized martial arts guru who was portrayed by Jean Claude Van Damme in 1988’s “Bloodsport.” Dux claimed to have been awarded the Medal of Honor and even wrote a phony memoir of being an “American Warrior.”  Dux’s “memoir” was published by a major publisher just before Stolen Valor.  The book proved Dux served as a reservist, after the Vietnam War, and with no overseas duty. Dux quickly faded away from celebrity status.

         Stolen Valor also hammered the media’s gullibility to present stories without first substantiating the alleged military service.  Burkette’s example would be humorous if not pathetic.  In 1994 CBS’ 60 Minutes featured a Vietnam Marine with a Bronze Star, 2 Purple Hearts and being a Khe Sanh veteran that turned to heroine and murder as a result of his combat experience. As a result of the public response, the Massachusetts Governor commuted his sentence to parole.  Following exposure of the lie in Stolen Valor, the man admitted on rival ABC’s 20/20 that he never saw Vietnam. 

            After the book, others have taken to exposing military imposters.  Joseph Cafasso was a Fox News “expert” as a retired Special Forces lieutenant colonel, and Silver Star recipient.  He was fired in 2002 when Cafasso was exposed as being discharged from basic training with 44 total days of service.   

          The issue of military imposters, misappropriating service, or “stolen valor” had reached its peak.  Congress was ready to act.  The issue became so hot that allegations (later proven false) that each party’s presidential candidate had fabricated tales of his service.  By 2005 stolen valor more than a political issue and was becoming a legal issue. 
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While these articles are intended to inform you of unique issues of the military and veterans,  it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

First in a series of articles addressing “Stolen Valor”
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By Barry J. Bernstein*

              For many years there has been federal law limiting the wear the military uniform and decorations.  This went unchallenged for many years as the reality of having a military in a free society.  This began to change in the 1960’s and 1970’s.
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        The unrest of Vietnam brought in an era of change and anti-war demonstrations brought 1st Amendment challenges to limitations on military needs.  The first real challenge was United States v. O’Brien, 391 U.S. 367 (1968).  O’Brien was a war protestor that burned his draft card in defiance of a provision of a law similar to the uniform prohibition.  He was charged with a federal crime and convicted.  On appeal to the Supreme Court his conviction was upheld, saying they would uphold statutes where they advanced a legitimate government interest and the law was not intended to inhibit free expression.  However, the Court began modifying its foundations as the Vietnam era of protest transformed American society.
           Though there were limits on the use of the uniform, an exception existed for the wear of the uniform for actors in a performance.  The exception went so far as to say that it could only be for performances that reflected positive images of the uniform (if you think of war movies before the 1970’s, they were never negative).  As part of an anti-war skit in front of an induction center, Daniel Schacht wore parts of a military uniform.  He was convicted for wearing the uniform.  

         The Supreme Court focused only on the limit of positive portrayals in a positive light as a 1st Amendment violation of free expression.  Basically, the Court found the government was limiting expression to only supportive portrayals and was intentionally limiting free expression against the government.  The Court sidestepped issues of Schacht only fragments of a uniform, ignored whether that he was not a typical “actor,” and even avoided determining whether the demonstration was an actual “performance.”  Instead, the Court focused on the exception’s limited use only “if the portrayal does not tend to discredit that armed force.” 10 U.S.C. § 772(f) (1956).  The free speech argument zeroed in on the government controlling free expression to only positive portrayals.  The Court noted that even where the “performances were crude and amateurish and perhaps unappealing” it was protected free-speech.  Schacht’s conviction was reversed. Schacht v. United States, 398 U.S. 58 (1970).  The 1st Amendment issue seemed settled, and the ruling spawned a new generation of war movies and military comedies in less than patriotic themes.

            The law is still on the books as previously written, where only positive portrayals are allowed.  However, with the Schacht ruling it is unenforceable.  It was also a significant change in the law as far as the 1st Amendment.  With the end of the Vietnam protests, so seemed the issue for a generation.  However, things stirred up in the 1990’s and the issue of protecting the uniform changed to a broader issue of “stolen valor.”  Future articles in this series will address these 21st century issues.

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    *The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

by Barry J. Bernstein

     As noted throughout this series, Reserve Component (“RC”) military retirements differ greatly from Active Component (AC) retirements. The National Guard and Reserves are collectively referred to as Reserve Components, but while they differ in many ways, their federal retirement plans are the same. Before calculating retirement, one should first fully understand “vesting” into the system. Once vested, the point system (with rank) determines retirement pay.
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         (AC = Rank x Years) AC retirement amount is founded on rank and years of service. Once accumulating 20 years, the AC Servicemember is vested and can draw retirement. AC servicemembers can draw lifelong retirement benefits before age 40!

          (RC= Rank x Points) RC retirement is founded on rank and points. Reservists or National Guardsman must have 20 “qualifying” years to vest. Along with rank, points become the driving factor in of retirement pay. RC benefits do not begin until age 60!

     The RC retirement concept originates from days of service. At its core, a point equals a duty day. However, the nature of the RC career is different, and the system accommodates these differences to retain qualified RC servicemembers and compensate them for the additional time required in different ways.
The points available to RC servicemembers are:
     - Active-duty days (one day = 1 point)
     - Drill days (2 pay periods = 2 points per drill day)*
     - Annual training (15 days, one point daily = 15 points)*
     - Correspondence course points (Each component calculates differently)
     - Membership points (15 points per year, prorated for fractional years= 15 points)*
Those noted with an asterisk (*) are typical base reserve duty accruals each year.

      The biggest difference of points in RC careers are the active-duty points from prior service, mobilizations, or special duty opportunities. The below reflects a sample 3,200 point accrual for a major. It reflects 3 years of initial active duty, for schools and a 1-year mobilization (across 2 RYE). Had the same major only had nine months of initial active duty for training only, the accrual would significantly drop from 3,200 to 2,400.

​While this article is intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
* The author retired as a colonel after 34 years of service. He now practices law at Bernstein Law Firm, LLC in Irmo, SC, advising clients and attorneys on military issues.