Full-Spectrum Counsel to Warfighters in the U.S. Military

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debby Merritt interviews an Air Force lawyer who discusses the military justice system and her role in providing legal counsel to war fighters.

Debby Merritt:

We're joined today by Captain Megan Mallone, a 2008 graduate of the University of Toledo College of Law. Immediately after law school, Captain Mallone joined the Air Force, where she practices law as part of the Judge Advocate General's Corps, better known as jag. Welcome, Megan.

Megan Mallone:

Thank you so much. And I want to start by saying that the opinions expressed today during this podcast are my own and not reflective of the Department of Defense.

Debby Merritt:

Now, before we talk about life as a JAG officer, let's start with how you landed the position.

Megan Mallone:

Part of the reason I went to law school, I'm a bit unique in this regard, is I wanted to be a JAG, and one of the prerequisites to becoming a JAG is becoming a licensed attorney. So I applied to law school with every intention of exploring JAG as a career. That is frequently not the case for a lot of people we hire. We definitely do not require prior military service. Prior to wanting to become a JAG, I had never actually thought of joining the military. In fact, I probably thought about the opposite quite a bit before I found the call to service.

Debby Merritt:

Now you're with the Air Force JAG. Is the hiring process similar for the other branches?

Megan Mallone:

The requirements to become a JAG are actually codified in US code. So we all have the same requirements, but the application process may be a little bit different service by service.

Debby Merritt:

Just to clarify for our listeners, the military no longer has any rules related to sexual orientation. Is that correct? That people who are gay, lesbian, or bisexual are free to apply and to be open about their orientation?

Megan Mallone:

That is correct. The United States Air Force Judge Advocate General's Corps is actively recruiting in LGBT markets, just like we are in all types of diversity markets.

Debby Merritt:

What happened when the military ended the Don't Ask Don't Tell policy?

Megan Mallone:

One of the ways in which the Air Force JAG Corp helped to prepare the Department of Defense for the repeal of Don't Ask Don't Tell is using JAGS to help educate everyone on the installation. So I started serving in 08, and about two years later, we started preparing for Don't Ask Don't Tell, and the repeal. I was a little bit nervous and I think many of our community were, but I was incredibly proud of the way we reacted to that. It was basically a non-event at installations across the world, and certainly at my installation. We are excited for the future of the Department of Defense. I think things are definitely happening in the transgender market. Currently, our civilian airmen are serving openly as transgender, and it seems like the Department of Defense, of the Tide is turning.

Debby Merritt:

Let's start talking about your life as a brand new JAG recruit. Do you have to go to bootcamp?

Megan Mallone:

So commissioned officer training is our initial training, it's where we learn how to become officers. It's frankly where we learn how to wear the uniform and the logistics of operating and presenting yourself as a military officer, and it's also where we learn a host of leadership lessons. After that, we go to about eight weeks of JAG school training. Both of those trainings are current Maxwell Air Force Base in Alabama, and the JAG School portion is where we learn how the practice of law in the military is a little bit different than the practice of law in the civilian sector. So the Air Force JAG Corps, everyone starts out as a prosecutor, and I really like that because you wear the white hat and you learn the fundamentals of practicing law in the courtroom. That's part of the reason I wanted to become a JAG. I really wanted the opportunity to represent my country in court, and so you should not have a fear of litigation.

Debby Merritt:

And conversely, if that's something a student wants to do, this is really an excellent way to get as much courtroom experience as possible. Do your new recruits have to commit to any term of service?

Megan Mallone:

The initial commitment is four years, and what that means is, you will probably move at least once. So you'll start out at one location, and then you're going to get a second assignment before you complete that initial commitment.

Debby Merritt:

What would happen if a graduate decided they needed to break the commitment?

Megan Mallone:

That's not an option.

Debby Merritt:

Got it.

Megan Mallone:

Yeah. When you raise your right hand to serve your country, you're committing to those four years. On the flip side, it is only four years, and I like to remind law students that, you probably thought law school was pretty daunting at the beginning of your first year, but it flies by. And so, all we're asking is four years of good service, but it will be four years.

Debby Merritt:

It will be four years. And of course, that means that the government is committing to the graduate as well. Nowadays, to get a commitment for a four-year, full-time job is quite a coup.

Megan Mallone:

That's true, and we pay $65,000 of student loans in the first four years.

Debby Merritt:

I was going to ask you later if there were benefits other than salary, there clearly are.

Megan Mallone:

For me, it's twofold. There's a whole host of employment benefits that military members get, and it's not just the JAGS, we have excellent healthcare. Our pay rate is incredibly competitive. We all move up in rank quickly, we get constructive credit for law school. So within about six months, we are captains or 03s, and your normal officer would take about four years to get there. But frankly, I think the intangibles are more important, and they're more instructive to me personally and why I continue to serve.

Debby Merritt:

Let's go back to our brand new JAG officer who has finished the training down at Maxwell. What happens next? You said that everyone starts as a prosecutor. Do the officers get to choose where they will be prosecuting?

Megan Mallone:

So in my case, I knew before I started training that I was going to shepherd Air Force Base, which is in Wichita Falls, Texas. And what that meant was, after training, I attached to the legal office there, and each Air Force base is kind of like a town. The Wing commander, the person that the JAGs work for is like the mayor, and I am part of his legal staff. But I'm not the only one, we had a whole team of lawyers in the office. Each of us has assigned a particular area of responsibility or AOR, that's a term we use often in the military.

So I started out as the chief of legal assistance, but what that meant day to day was, I was responsible for management of the legal assistance program, which is where we provide free legal services to our community. And on top of that, I tried courts or helped out with contracts or whatever was needed in the office that was going on with our mission at that time. Part of the reason I like my job so much is, it's a pretty varied practice, even when you are in charge of one particular area.

Debby Merritt:

Now, how did you know that you would end up there? Does everybody get to choose where they will go and what type of practice they'll work in?

Megan Mallone:

So all of us, including me, submits a dream sheet every time we're up for an assignment, and that's no different for our initial assignment. Before you commit to anything, you know where you're going when you first join. So before I committed to the Air Force, I knew I was going to Wichita Falls, Texas. During my first four years, I moved to RAF Lake in Heath in England. So about a year and a half in, I got the phone call from our assignments JAG. They had looked at my dream sheet, which had been updated because I was excited to leave Texas, as great as it was, and I was lucky enough to get stationed at REF Lake in Heath, England. But assignments are both a combination of your desires and the needs of the Air Force.

Debby Merritt:

What sorts of things to go on the dream sheet? Is it just locations, is it also the type of practice you're interested in?

Megan Mallone:

It is all that and more. So we've got a couple text boxes where we can tell our assignments folks, things that are going on. For example, I'm a joint spouse in the military, which means my husband is also active duty. So one of the things that my dream sheet said is, if at all possible, above all other priorities, I'd like to live with my spouse, as you can imagine.

Debby Merritt:

So that could be a number one priority.

Megan Mallone:

Absolutely. Second to that, usually, you see geographic preferences, but sometimes you see types of job preferences. At the time I moved to England, I knew that one of the goals that I wanted to accomplish was to become a defense council. So my dream sheet also explained that I was looking for opportunities to become one of our defense councils.

Debby Merritt:

So your first job was this somewhat supervisory one in Texas, and then you moved to England, where you became a prosecutor. Why don't you tell us a little bit about your experiences there?

Megan Mallone:

So at England, I was the chief of military justice, which meant that my job in the legal office on that installation was to ensure that the government's cases were all being prosecuted, and they were moving forward. One of the things that's unique to the military justice system is that a military commander who is a non-lawyer, makes the decision to prosecute cases. So while a JAG officer, usually the chief of justice and the staff judge advocate at the installation, advises and provides guidance to the military commander or what they should do. The commander decides whether or not we prosecute a case. So as the chief of justice, my job was to make sure that we were satisfying those commander's intent and prosecuting the cases that they saw fit to prosecute.

Debby Merritt:

So the prosecutorial discretion actually resides with a non-lawyer, but you're advising the person about the law that applies and so forth. How does that play out? Do you think it changes the sorts of decisions that are made compared to outside the military.

Megan Mallone:

The military commander's primary interest is enforcing the good order and discipline of his troops or his airmen. Oftentimes, that means the military commander will say, "Well, we will use the justice system to get to the right answer." If something happened, that will come out in court. We have a talented staff of lawyers on both sides that will use the two-party system to advocate on behalf of their client's interest, and the end result will be appropriate. As an attorney, we advise and the commander decides. And I think that's important because that sends a clear message to all of the airmen that are under that commander, that he or she is willing to take action when an allegation occurs. And the justice system is there to help us get to the appropriate resolution.

What we find is that, while there is no prosecutorial discretion in the decision to go forward, the prosecutor is running that court marshal once we've made the call that it goes forward. They choose who to call as witnesses, they choose what evidence to present, and the defense counsel is there in a position to advocate for their client as best they can as well.

Debby Merritt:

And the Defense Council is also provided by the JAG Corps, is that correct?

Megan Mallone:

That is correct. All of our defense councils are independent. They do not report to the commander at that installation, and that's very important because we want our airmen to have an independent advocate who represents their interests. There is an Air Force judge advocate commander in Washington DC, the Air Force legal Operations commander, and they're in charge of all the defense counsel. When I was a defense counsel at RAF Lake in Heath in England, I reported back to that commander, and I did not report to the commander on my installation, and my clients knew that. That was a very important fact that I shared with them. They knew that they were getting independent representation, despite the fact that I was still there in a military uniform.

Debby Merritt:

Do you feel that your clients were completely forthcoming with you? Does the privilege apply within the military so that you would not be required to disclose what a defendant said to you?

Megan Mallone:

Absolutely. Our defense counsel have the same privilege that a defense counsel enjoys in the United States. And there was never a time when I had to disclose anything that would be adverse to my client. I am almost positive that some of my clients were not forthcoming with me, but in some respects, that doesn't matter. Even if my client is not forthcoming with me, as long as I am able to advocate to the best of my ability and the defense counsel do have the resources necessary to do that, that fact doesn't deter me.

Debby Merritt:

Because it's really the prosecution that bears the burden of proof. One can defend without a client who is completely candid about all of the fact.

Debby Merritt:

What are some of the aspects of your jobs? Because you've had more than one within the military, that you've liked most?

Megan Mallone:

I will say that the thing I like most about being an Air Force judge advocate is, I feel like I get out of bed every morning with a purpose. From the first day I joined the military, I raised my right hand to support and protect the constitution of the United States of America, and I take that oath very seriously. The taxpayers definitely pay my salary, and I feel a huge debt to them. My job is not monotonous, it is different every day, and that definitely keeps it interesting. But I just really love the purpose that we have.

Debby Merritt:

What about the downsides? Is there anything you would change if you had the magic power to do so?

Megan Mallone:

Well, a lot of people say that moving around so much is a downside. I've been very lucky. My assignment to Texas was awesome, I learned a ton of stuff. I also now realize that I probably don't want to live in Wichita Falls, Texas in the future. It's not for me, it is for some people. But then we moved to England and I definitely had the benefit of having a great geographic assignment. I guess the moving may tax our family in the future, but for now, I see it as a benefit.

One of the other things that sometimes causes challenges is the fact that you are in a military force. And so, at times, you are called to deploy. I was called to deploy in 2012 and I deployed to Qatar. It was a bit unexpected, and there was a little bit of planning that had to go into getting me out of the house and down range, so to speak. And then of course, my husband did feel the brunt of that, and he took on all of our responsibilities at home in my absence, and that's certainly challenging. We're very lucky our deployments are on the shorter side, they're only six months. So my husband only had to do that for six months, but of course, he's also deployed, and then the roles were reversed, and I took on the brunt of all the responsibilities at home. And that is certainly challenging for families.

Debby Merritt:

What does deployment mean? Does that mean that you were actually an active service or were you doing JAG work while you were in Qatar?

Megan Mallone:

In the Air Force, all of our JAGs deployed to do JAG work. And so, what I did down range was exactly what I was doing back home, but it was just at the location where we have a concentration of airmen at that installation. So the same things needed to be done. Courts, contracts, legal assistance, government ethics. I was just doing it in the deployed location.

Debby Merritt:

And that word, downrange. That means in a zone of conflict, or what exactly does that mean?

Megan Mallone:

Well, it can mean a lot of things to a lot of different people. I think for the Air Force, it means that you have physically left your home station, you're away from home, and you are part of an area of responsibility that is engaged in war fighting. But of course, the Air Force is a mobile force, so I was in Qatar, in much less danger than our folks down range in Afghanistan.

Debby Merritt:

Sure. But that's something that an officer can't control, as you said, once deployed, once deployed.

Tell us a little more about your deployment in Qatar. Could you describe a typical day for us?

Megan Mallone:

Absolutely. So wake up around 5:30 or 6:00 AM. I was very lucky while I was deployed. I had my own dorm room in a regular building. I was not living in a tent or a Conex or some kind of prefab installation. And I was also quite lucky to have a bicycle. So I would ride to work around 7:00 AM. I usually was in the office from 7:00 AM to 7:00 or 8:00 PM. However, when you're deployed, there aren't other places to go besides your building facility and your office. And what that means is, I would check my email in the morning, deal with any of the important issues of the day. Because we have such a time difference from the United States, sometimes things would come in overnight and I would deal with those first thing. And then I'd walk about a block or two to the dining facility, get breakfast.

The food at my installation was excellent. It was so excellent, that I had to be sure that I was working out so that I wouldn't gain too much weight. Bring my breakfast back. Usually my boss and I would sit down, map out the day, the week, talk about any issues, and then I would get out and talk to the military commanders on my installation. Frankly, one of the great things about this job anywhere is that you can get out from behind your desk and really see the Air Force mission. At our installation, the mission is to fly, fight, and win over the area of responsibility, so I would help any of our commanders with their legal issues. Sometimes that meant that we'd have a court marshal down range. Sometimes that meant briefings, sometimes that meant educating airmen about their rights and responsibilities on the installation or the rules they had to follow.

Usually, lunch and dinner were also at that same dining facility, and then I would usually work out mid-afternoon, around three o'clock, come back to the office, finish out any work that we had to do, and then ride my bike back to my building room. I was very lucky to have regular internet access, so usually at night, that meant a call home either to my parents or to my husband Mark, and then sleep to prepare for the next day.

Debby Merritt:

That living in a tent that you mentioned, for some of the other JAG officers sounds exciting.

Megan Mallone:

Well, exciting is one word. Our JAGs deploy to anywhere where we have military members, and that can mean a lot of different things in a lot of different locations. I also, and I hesitate to use the word deployed, but I was sent forward to Greece when we went into Libya. In 2011 we were flying some air missions over Libya. My particular unit was in charge of rescue in the event that any of our pilots went down. In Greece, I was living in a hotel because we were operating out of Hellenic Air Force installation, and they only gave us a hangar, not billing facilities. And because it is very much a regular town that we were living in, we just contracted to obtain hotels. But you've also got folks that are deployed living in tents like you imagine they would be.

Debby Merritt:

You mentioned that you hesitated to say deployed. Is that because the hotel room in Greece is not the usual station for a JAG officer?

Megan Mallone:

Yeah. The reason I'm hesitant to use the word deployed is because other people who have done harder deployments would laugh. A hotel room in Greece is usually not what we would think of when we think of a deployed location. While I was very lucky to have that opportunity to go forward to Greece, and I learned a ton, we did some great interoperability training. It is actually where I found that I was very interested in international law. There are a lot of people doing a lot of dangerous work down range, and those are real deployments. I'll say, that was more of a temporary duty in Greece.

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