Ernesto C. Gapasin

Ernesto C. Gapasin

Senior Counsel

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Practice Areas
  • Military Law
  • Litigation
  • Criminal Law
  • Security Clearance Representation
  • Whistleblower Representation
Practice Locations
  • Buffalo, NY

Ernesto C. Gapasin is a Senior Counsel at Tully Rinckey, PLLC. Ernesto Gapasin continues to obtain outstanding results for his clients and attributes much of his success to years of experience, solid and disciplined courtroom skills, and a diligent work ethic. Ernesto has been a licensed attorney since November 1999, when he became a member of the State Bar of Nevada and then became a licensed attorney in Missouri in 2004. Ernesto is a member of the National Trial Lawyers Association, having been named a Top 100 Trial Lawyer for multiple years as well as being awarded a Top 40 Under 40 Trial Lawyer.

Ernesto earned a commission to the United States Army as a Judge Advocate General and graduated from the Judge Advocate General’s Legal Center and School (TJAGLCS) in Charlottesville, Virginia, in May 2005. Because of Ernesto’s civilian experience as a criminal defense lawyer, he desired to focus all his efforts on military trials. As a result, he aggressively sought an assignment to Okinawa, Japan, as a Defense Counsel. Ernesto was tasked with raising a Trial Defense Service (“TDS”) office on Okinawa, where none had existed before. He established and ran the first-ever Trial Defense Service office on Okinawa that served soldiers in Okinawa, mainland Japan, and Korea. Harkening back to his past experiences as a criminal defense lawyer in Las Vegas, Nevada, Ernesto established a policy of aggressively contesting all cases. He developed a reputation for wargaming a court-martial from beginning to end with an aggressive cross-examination style that resulted in a number of acquittals in Okinawa, mainland Japan, and Korea. Ernesto worked on a number of high-profile cases that led him to various locales in the Pacific Rim in order to conduct pre-trial investigations. In one high-profile case, Ernesto even took depositions in the city of Manila, Philippines, in order to effectively defend his client against rape charges. This resulted in the dismissal of rape charges despite the highly politicized nature of the case involving his U.S. service member client and a Filipina accuser on Okinawa. The dismissal was reported on the first page of local and national papers.

After successfully completing his assignment on Okinawa, Ernesto returned to the Continental United States and accepted the position of Senior Defense Counsel at Fort Leonard Wood, Missouri. As the Senior Defense Counsel, Ernesto oversaw hundreds of courts-martial and separation boards that litigated at this very busy field office. Although Senior Defense Counsels are not typically expected to try cases, Ernesto broke the mold, trying a number of courts-martial as the Senior Defense Counsel, and achieving a high rate of success in an incredibly high number of contested trials. Ernesto also achieved a full acquittal in another highly publicized contested rape case that resulted in a full acquittal. In a dramatic turn of events, Ernesto’s cross-examination of the accuser resulted in the revelation that she was the perpetrator of a burglary of the home of the accused. The client in this case successfully obtained his Medical Board benefits due to injuries from an I.E.D. and successfully and voluntarily retired from an honorable 14-year career.

From Ernesto’s court-martial experience, he was asked by leadership to give training to other military defense counsel.  Ernesto gave a class on “Cross-Examination in Sexual Assault Cases” at the Annual CONUS Trial Defense Service Conference in Tampa, Florida. Ernesto also gave a training session titled “Innocence Lost: Cross-Examining Child Victims” at the USATDS Pacific Rim Regional Conference in Seoul, South Korea. He also taught on “The Art of Taking Depositions” at the USATDS Pacific Rim Regional Conference held in Dongducheon, South Korea.

When Ernesto was in the military, he also served as an appointed part-time Military Magistrate. His function was to preside over pre-trial confinement hearings and to render decisions on whether probable cause existed. He alone determined whether the factors were present that required the pre-trial confinement of an accused. Ernesto also analyzed investigation files to determine the legality of the issuance of search and seizure warrants. As a part-time Military Magistrate, it was Ernesto’s duty to balance the facts presented, analyze witness statements and allegations, and to determine whether or not a probable cause to conduct a search and seizure was warranted. Having held the position of a part-time Military Magistrate and having been trained by a Military Judge prior to his appointment, Ernesto is especially skilled in drafting Motions to Suppress or any motions to the Military Court seeking to suppress illegally obtained evidence.

Ernesto also served as a Legal Advisor for Army 15-6 Investigators, which are also referred to as Command Investigations or Formal and Informal Investigations in other branches of the military. In this role, Ernesto advised field-grade officers appointed by the General Courts-Martial Convening Authority who were tasked with conducting investigations into suspected misconduct within the unit. The role of a 15-6 Legal Advisor is an important one, and Ernesto served as the legal advisor on several high-profile 15-6 investigations conducted in Baghdad, Iraq, during 1st Cavalry Division operations from 2006-2008.

Ernesto also served as the Article 32 Legal Advisor for numerous Hearing Officers of Article 32 hearings and as a Summary Courts-Martial legal advisor in a number of Summary Courts-Martial at Fort Hood, Texas.

Ernesto graduated from the University of Notre Dame in 1996, where he was active in student government as well as participating in a number of sports, including the Notre Dame Boxing Club. Ernesto also lived in Westwood, California, and studied economics at the University of California, Los Angeles. When he graduated from Notre Dame in 1996, Ernesto was accepted into the University of Missouri (“Mizzou”) School of Law in Columbia, Missouri.

After his first year in law school, he served as a clerk intern in Kansas City, Missouri, under The Honorable Dean Whipple, Federal District Judge of the Western District of Missouri. Judge Whipple was a highly regarded Eighth Circuit Federal Judge in Kansas City. Because of this opportunity to work directly with Judge Whipple and his clerks, Ernesto became keenly aware of the intricacies of complex civil and criminal federal litigation. Working on influential federal cases from “in chambers” became an important chapter in his development as a military lawyer.

In 1998, Ernesto was hired by the oldest and one of the then-largest law firms in the State of Nevada, the law firm of Rawlings, Olson, Cannon, Gormley, and Desruyisseaux, located in Las Vegas, Nevada (now Olson Cannon Gormley & Stoberski). He was initially hired on as a clerk for two summers. The Partners of the firm hired him as an Associate immediately upon his graduation from law school in 1999, and he was sworn into the State Bar of Nevada in 1999. Ernesto thrived as an Associate with the firm, earning respect from other Associates and Partners alike for his diligent work ethic and outstanding results.

When the time was right, he landed a position working with renown Las Vegas defense lawyer Tom Pitaro. Here, he learned the technique of using aggressive, bulldog tactics to beat prosecutors in court. Ernesto worked with this tenacious lawyer whose career extended all the way back to the mob days in Las Vegas, having represented several famous mobsters from the old days of Las Vegas. Ernesto learned many techniques that he continues to use in Military Courts as a model for aggressive litigating that gets results.

Much of Ernesto’s reputation as a relentless cross-examiner began during his career in Las Vegas. He worked on several high-profile criminal cases as a young Associate, such as State of Nevada v. Murphy, a homicide case dubbed the “Binion Murder Mystery” as portrayed on CNN, Court TV, and numerous other local and national television shows. Several books, such as Murder in Sin City and Quicksilver, were based on this high-profile murder case involving the death of Benny Binion, an heir to the family empire that began with Binion’s Horseshoe Casino in downtown Las Vegas. Ernesto began his career learning from the best lawyers in the city, handling complex murder cases as well as difficult federal cases involving high-level drug distribution and possession allegations. He also had the opportunity to work with famed Harvard Law Professor Alan Dershowitz on the Murphy case. The client was ultimately released from jail following a successful appeal that resulted in the overturning of her conviction two years prior.

Ernesto also worked on a high-level appellate case in the Fifth Circuit Court of Appeals for an accused charged with smuggling millions of dollars’ worth of narcotics from Mexico into the United States. This appeal was complex and involved international border issues as well as cutting-edge case decisions involving the presentation of drug evidence in the courtroom. Ernesto also litigated criminal immigration defense cases in Las Vegas that were appealed to the Board of Immigration Appeals, which is akin to being the Supreme Court in the field of immigration law.

While in the JAG Corps, Ernesto served in a number of positions that broadened his experience in military law and courts-martial defense.  Ernesto also deployed to Baghdad for a 15-month deployment with the First Cavalry Division out of Fort Hood, Texas. In Baghdad, Ernesto was assigned a position as an Operational Law Attorney advising commanders on the Rules of Engagement and Contract and Fiscal Law in theater. This experience of working contracts and fiscal law downrange also provided knowledge he would later use in the representation of service members facing court-martial for financial fraud crimes against the Government. Ernesto served as a Prosecutor in the Air Cavalry Brigade, 1st Cavalry Division and this service as a former prosecutor gives him a unique advantage that many military defense lawyers do not have. Ernesto served as the primary advisor to the Special Court-Martial Convening Authority and subordinate commanders in cases in which he served as the lead prosecutor. Ernesto also served as a Recorder (the government representative) in administrative separation boards and coordinated criminal investigations with MPI, CID, investigating officers, and company commanders. As a former prosecutor, Ernesto also advised company and battalion commanders, prepared charge sheets, and litigated government motions. Ernesto’s service as a prosecutor with the Air Cavalry Brigade undoubtedly gives him a unique advantage as a criminal defense lawyer.

Ernesto focuses on court-martial defense and separation boards. He has litigated hundreds of courts-martial and trials beginning in early 2007 that garnered high-profile media attention and were covered by major news outlets such as CNN, ABC News, Fox News, and even periodicals such as Rolling Stone. Ernesto also contributed to a multi-series documentary titled The War Comes Home by Elliot Smith of Bloomberg News, which is about service members who deploy to war but return with serious mental and behavioral issues. The Washington Post had contacted Ernesto to act as a subject-matter expert for articles involving a high-profile sex assault scandal at the Naval Academy involving allegations against several football players from the academy.

In 2019, Ernesto was asked to teach Constitutional Law Class on “Unlawful Searches and Seizures” at Evangel University in Springfield, Missouri. In 2022, Ernesto was asked to provide videotaped expert analysis in a pilot documentary developed by The History Channel. The documentary involved WikiLeaks footage of the July 2007 airstrike that led to the court-martial of Army Intelligence Analyst Chelsea Manning.

Since leaving Active Duty with an Honorable Discharge, Ernesto has tried hundreds of military courts-martial and separation boards all around the globe, to include the Continental United States, Hawaii and Alaska, Germany, England, Italy, South Korea, Japan, and Okinawa. Gapasin has also represented service members in Poland, Belgium, Turkey, and Djibouti, Africa.

May 17, 2024, U.S. v. O-4, United States Army, Fort Carson, Colorado. Government initiates an AR 15-6 Investigation against a Major with over 18 years of service for allegations of child abuse, and for sexual harassment and bullying in his unit. Major’s ex-wife engages in constant harassment against him by contacting his Chain of Command with multiple false allegations that he physically abused his children. The investigation for alleged child abuse is substantiated, but rather than finding sexual harassment or bullying, the investigator finds counterproductive leadership within his unit. Major is notified that he will facing separation in a Board of Inquiry and the Government would be pursuing an Other Than Honorable Discharge. Mr. Gapasin immediately begins investigating the allegations of child abuse and recognizes a number of credibility issues with the claims. Gapasin recognizes the clear motive to fabricate by the ex-wife by analyzing the timing at which she claims Gapasin’s client abuses them. She made such claims to prevent client from picking up his children or when client wanted to assert his custody rights. Moreover, any claims of injuries to the children were always unverifiable and questionable. At the Board of Inquiry, Gapasin calls four witnesses to testify on behalf of his client regarding how good of a Dad he was and how he never used corporal punishment. One of the witnesses testified that she was present for the entirety of the time during which the ex-wife made claims that client abused the children. Gapasin’s witness completely disputed ex-wife’s allegations. This Board finds that Client did nothing counterproductive by exerting his authority to ensure other officers and Senior NCOs in the unit were properly preparing for an upcoming deployment. In other words, Board finds Client in the right, and the unit being counterproductive. RESULT: Board of Inquiry finds ALL allegations UNSUBSTANTIATED. Board RETAINS Major, NO Discharge, NO Other Than Honorable Discharge, and Mr. Gapasin SAVES CLIENT’S RETIREMENT.

November 23, 2023, U.S. v. E-4, United States Marine Corps, Camp Foster, Okinawa.  Corporal and two others are accused of committing harassment against two subordinates in violation of Marine Corps Order 5354.1F, which prohibits “[a]ny conduct, whereby a Service member knowingly, recklessly, or intentionally and with a nexus to military service engages in behavior that is unwelcome or offense to a reasonable person that creates an intimidating, hostile, or offensive environment.”  The Corporal and two others were accused of hosing down two subordinate Marines whose gear were dirty and covered in mud prior to a training event.  The two Marines were supposedly forced into a plank position for an extended period of time and allegedly yelled at and treated disrespectfully.  A Marine standing a “football field away” reported the behavior.  Nonjudicial Punishment (NJP) is then initiated against the Corporal but Mr. Gapasin advises him to turn it down and instead request a Court-Martial.  The Government proceeds to prefer charges for harassment in a Special Court-Martial.  Gapasin immediately interviews both of the alleged victims and learns that neither of them are negatively affected by an incident which they considered corrective action.  Mr. Gapasin proceeds to draft statements on their behalf which the witnesses review, agree with, and then signs off on.  Gapasin intends to use both of these statements for impeachment purposes at trial.  Mr. Gapasin knows the best strategy is to quietly proceed to trial, knowing that these two witnesses already provided detailed, written statements that can be used for Opening Statement as well as for potential impeachment purposes when cross-examining both victims.  Should the Government learn about the statements too early, Gapasin is concerned that the Government would then correct deficiencies on the Charge Sheet.  The week right before trial, the prosecutors interview both of the alleged victims of harassment where they finally learn about the written statements in Mr. Gapasin’s possession.  The prosecutor attempts to silence these alleged victims from testifying by reading them their Article 31 rights and claiming they were giving false official statements. Gapasin’s opinion is this is an attempt by the prosecutors to scare the alleged victims from testifying at trial against the Government and for Gapasin’s client.  Mr. Gapasin notes this questionable prosecutorial behavior and before Gapasin could file a Motion to Dismiss for Malicious Prosecution, the Government proceeds to drop the charges.  RESULT:  ALL Charges against Gapasin’s client are DISMISSED AND WITHDRAWN ONLY 3 DUTY DAYS BEFORE TRIAL.  NO Federal Conviction, NO Confinement, and NO Discharge.

 

August 23, 2023, U.S. v. O-3E, United States Marine Corps, Camp Foster, Okinawa Japan.  A Captain in the Marine Corps with 22+ years of service is accused of an Article 89, UCMJ, violation by showing disrespect to his Commanding Officer.  The Captain is also accused of committing conduct unbecoming an officer, in violation of Article 133, UCMJ.  The Government hands the Captain a page 11, but subsequently initiates a Board of Inquiry. Knowing that he faces the potential loss of his retirement, and knowing that the Government was pursuing an Other Than Honorable Discharge (OTH).  The board is set to proceed on Okinawa, and Gapasin and his client manage to obtain approximately 32 character letters in support of his client.  At the board, Mr. Gapasin focuses on the extremely stressful events of the entire day which then culminated in his client, the Commanding Officer, and the Managing Officer all standing on the parking lot of base lodging late in the evening.  Mr. Gapasin provides the Officer Board a detailed chronology of the start of the day, and how his client is tasked to help reel in an intoxicated, disorderly Marine officer experiencing personal struggles.  The client starts his morning locating this officer and driving around looking for him in his attempt to help him and to avoid getting PMO involved.  The client is helping this officer to avoid getting arrested and to avoid any damage to that officer’s career.  Client reels him in multiple times and gets him to a hotel room away from the intoxicated Marines’ family.  Client disagrees with his leadership’s decision to issue the intoxicated Marine a no contact order.  This Marine is drunk, and his reaction could be dangerous not just to others but to himself.  After the CO and MO speak with the intoxicated Marine once he is corralled in a hotel room, the Marine goes berserk striking Gapasin’s client in the chest.  Shortly after, the three of them meet in the parking lot of the hotel where the allegations involving Gapasin’s client allegedly takes place.  At the Board, Gapasin emphasizes his client’s stellar career, and elicits positive testimony about his client’s duty performance and good military character.  Gapasin also brings home the idea that this incident simply is not the 4.8 million dollar mistake, which is the amount of money his client would earn by the time he reached 85 years old unless he was separated at this hearing.  RESULT:  Board Of Inquiry RETAINS Gapasin’s client.  NO Discharge,  NO Other Than Honorable Discharge, and client SAVES HIS RETIREMENT after 22+ years

 

April 19, 2023, U.S v. O-4, United States Navy, Norfolk Naval Station, Virginia. A highly decorated combat veteran and O-5 Navy Seal Team XO accuses an O-4 LCDR of sexual assault. When the O-5 (who was also a LCDR at the time of the alleged incident) met with NCIS and reported the alleged sexual assault, he referred to the evening with the LCDR as a “slumber party” and made several references to his intent to get drunk on tequila and wine and to have a “party”, especially since his girlfriend had broken up with him that same weekend. The LCDR was the only one who was invited to this “party” and had arrived to the O-5’s home on a Sunday afternoon. The O-5 was already intoxicated by the time the LCDR arrived. According to the O-5, the LCDR committed sexual assault by performing oral sex on him while he was asleep, and that the assault took place in his upstairs bedroom. The Government charges the LCDR with a charge and specification for performing oral sex on the O-5 “while he was asleep”. The LCDR denies the allegation. The Government’s primary piece of evidence is an oral wire intercept, also known as a pretext phone call, made by the O-5 against the unsuspecting LCDR. The LCDR was successfully manipulated by his superior Seal Team XO to apologize for performing oral sex on him while he was asleep the week prior when they were both drinking tequila and wine at the O-5’s home. Interestingly, evidence revealed that the O-5 had destroyed critical NEST video evidence of the entirety of the evening which would have taken place just hours before the alleged oral sex. Gapasin demonstrates how the destruction of the video evidence takes place within the same 2 hour time frame at which the LCDR had texted the CDR requesting to see what the video recorded later that evening. After the LCDR asks about the video cameras, the O-5’s demeanor changes and what was a fun evening turns into sexual assault. Gapasin files an extensive motion requesting the Court to suppress the oral wire. Gapasin litigates the motion in an Article 39(a) and successfully litigates the motion. The entirety of the oral wire is suppressed from trial. The Government then files an interlocutory appeal of the Military Judges’s decision to the Navy Court of Appeals and the ruling is upheld. After this approximately 6 month appeal, the case is then returned to the trial level without the suppressed oral wire. At trial Gapasin exposes numerous inconsistencies in the O-5’s testimony and previous statements had given to NCIS and to prosecutors. Additionally, Gapasin’s cross-examination reveals how the accuser is never asleep when Gapasin’s client allegedly performs oral sex on him. RESULT: LCDR found NOT GUILTY of the Charge and its Specification. NO Confinement, NO Federal Conviction, and NO Sex Offender Registration.

 

March 31, 2023, United States v. O-3, United States Army, Fort Gordon, Georgia. The Government accuses an Army Captain of engaging in an inappropriate, intimate relationship with a Staff Sergeant. The Government also accuses her of having an inappropriate, prohibited relationship with an E-4 Specialist. The Government notices a Board of Inquiry for the Captain based on these allegations along with a charge of conduct unbecoming an officer. One of the big issues that Mr. Gapasin points out to an all-Officer Board is that the Government never brings in either the Staff Sergeant nor the Specialist to testify. The Government does not call either of them to verify the alleged inappropriate relationships and Gapasin argues how the Government fails to satisfy its burden of proof. Gapasin argues how easy it is to call these witnesses, yet the Government decided not to. Moreover, Mr. Gapasin argues how text messages in the case could not be verified and easily doctored by the Specialist. Gapasin cites to numerous other mitigating factors present in this case and also points to his client’s hard-charging duty performance, how she overcomes multiple instances of personal hardship, and her reputation for being a mentor to young, enlisted Soldiers. RESULT: Board of Inquiry RETAINS Captain in the U.S. Army.

 

March 24, 2023, United States v. E-4, United States Army, Fort Sill, Oklahoma.  Army Specialist is accused of sexually assaulting a PFC in his barracks room.  He is also accused of indecent exposure and assault and battery for allegedly throwing her onto his bed.  The Specialist had previously agreed to give statements subject to interrogation by a CID agent.  Charges are filed against the Specialist.  Mr. Gapasin files several motions and in one of those motions, he manages to exclude several unhelpful statements made by the CID agent during the interrogation.  Following the Military Judge’s ruling excluding many of the statements, the Government declines to show the video interrogation at trial to the panel of Officers and Enlisted members.  Mr. Gapasin initiates a very analytical cross-examination, pulling multiple inconsistent and contradictory allegations from several of the accuser’s interviews and past statements.  Gapasin also showed that the PFC had multiple opportunities to leave his barracks room but stayed.  Gapasin even had her admit that she allowed his client to massage her shoulders and even kiss her neck before he had to leave his room for 15 min to take care of business at the company.  When he returned, she was still in his room watching an episode of Criminal Minds.  After the alleged attack, she is reportedly emotional and apparently tells one of her friends afterwards that she blacked out during the attack.  She never tells this to CID.  She also never admits to ever kissing Gapasin’s client at any time.  Under Gapasin’s cross, however, this accuser admits from the stand that she was kissing Gapasin’s client while he was removing her top and her bra.  Gapasin’s cross-examination illustrates what this case really was:  a picture of two people consensually making out, and when it started going too far, Gapasin’s client stopped and did not do anything she had not consented to.  RESULT:  FULL ACQUITTAL, NOT GUILTY to ALL Charges and Specifications.  NO Federal Conviction, NO Sex Offender Registration, NO Confinement.

 

November 9, 2022, United States v. O-3, United States Navy, Camp Humphreys, South Korea. With 16 years and 5 combat deployments in the military, Navy Lieutenant is accused of multiple incidents of sexual harassment, gender discrimination and creating a hostile work environment. The allegations were made against him by his female commanding officer (O-6), two other female O-3s and a female Air Force Staff Sergeant (E-6). A Board of Inquiry is initiated against the Lieutenant with the intent to discharge him with an Other Than Honorable (OTH) Discharge. Mr.  Gapasin starts by obtaining numerous character letters on behalf of this former enlisted Force Recon Marine, to include a letter from an Army Major General who provides the board a very positive character letter on behalf of Gapasin’s client. The Board is presided over by an O-6 and two O-5s. Mr. Gapasin cross-examines his client’s CO and the two other O-3s. His cross-examination reveals a lack of credibility as the CO’s testimony is contradicted by the O-3s, and vice versa. Gapasin’s cross-examination of the E-6 reveals her poor duty performance and ultimately her lack of credibility. Gapasin also reveals how the primary O-3 who initiates the investigation against the client lies to the board and to the past investigating officer multiple times about her true role in the case. Gapasin reveals how this O-3 who reports the alleged misconduct is frequently touching not just Gapasin’s client, but others in the work place eventually resulting in a harassment complaint against her as well. Mr. Gapasin ultimately calls an unbiased civilian contractor to testify. This contractor works in the same area of operations as the client and the accusing females. The past investigating officer never even asks him for a statement about his observations. He testifies that he observes the accuser O-3 frequently touching and appearing to be intimate with Gapasin’s client. He not only exposes her lies, but also exposes several other lies by the other female accusers. Gapasin argues how his client never behaves in a manner that is “intimidating, hostile or abusive”, nor that his conduct was at a level of being “severe and pervasive”.  RESULT: Mr. Gapasin’s Client is FULLY RETAINED. The majority of allegations are FOUND UNSUBSTANTIATED. Gapasin’s O-3 client with 16 years is allowed to stay in with the opportunity to obtain his FULL RETIREMENT BENEFITS.

 

October 5, 2022, U.S. vs. E-6, United States Air Force, Texas National Guard.  Tech Sergeant in the Air Force tests positive for THC and immediately denies the intentional wrongful use.  Like many Guardsmen in similar circumstances, she faces likely separation from her unit despite the legalization of cannabis and THC in most States.  Gapasin immediately prepares and submits a statement on her behalf emphasizing his client’s duty performance and good military character.  He submits affidavits from several character witnesses as well as family members focusing on her devotion to the National Guard and her overall character.  Mr. Gapasin also references the likelihood of innocent ingestion of the substance, which were unknowingly provided to his client due to physical ailments his client was dealing with shortly before the urinalysis.  RESULT:  Case DISMISSED.  Gapasin’s client is allowed to continue her service with the Texas National Guard.

 

June 21, 2022, U.S. vs. E-5, United States Air Force, Wright-Patterson Air Force Base, Ohio.  Staff Sergeant in the Air Force receives a Notice for Administrative Separation on the basis of “Personality Disorder or Mental Disorder Not Constituting a Physical Disability”. The Staff Sergeant’s leadership claims he had mental disorders resulting in disciplinary issues. Staff Sergeant’s commander orders him to report for a psychological evaluation with Air Force psychologists. After conducting an evaluation, the psychologists diagnose the Staff Sergeant with “Unspecified Personality Disorder with paranoid and histrionic features and Delusional Disorder, Persecutory type”. The Staff Sergeant denies any mental disorders contends his leadership is faking the results in order to kick him out solely because of differences in opinions regarding politics and culture. Staff Sergeant knows that future employment in the Air Force or in the civilian world would be seriously hindered due to this fake diagnosis.  Mr. Gapasin immediately attacks the diagnosis. Gapasin’s client gets evaluated by two civilian psychologists and a civilian social worker to engage in similar psychological evaluations in order to determine whether or not the Air Force psychologists made the proper diagnosis. The client’s civilian psychologists came to the scientific determination that although certain traits did exist, that Gapasin’s client was NOT diagnosed with “Unspecified Personality Disorder nor Delusional Disorder “under the DSM-5. At the board, Gapasin calls both psychologists to testify as witnesses. Gapasin also cross-examines the Lieutenant Colonel and the Major who testified against Gapasin’s client. The Major even testifies that on one occasion he believed the client was going to kill him with a firearm when he heard a door swinging open behind him. However, Gapasin further questions the Major and elicits how none of the leadership ever followed any of the protocol with regards to safety concerns or active shooter concerns despite testimony about how concerned they were for their own safety. Gapasin also cross-examines the Air Force psychologists who render the diagnosis. Gapasin illustrates the suggestive bias that the Air Force psychologist exhibits based on communications with the client’s chain of command. RESULT: This 3-Day Separation Board composed of All Officers RETAINS Gapasin’s client in the US Air Force. The Board also finds any mental or personality disorder to be COMPLETELY UNSUBSTANTIATED.

 

April 22, 2022, U.S. v. E-5, United States Army, Fort Riley, Kansas.  The Government initiates an Administrative Separation Board against the Sergeant for allegations of distributing LSD.  The basis for the Separation Board also includes a past DUI along with other alcohol-related incidents which had been the subject of a previous board.  In that previous board, the recommendation was for separation, but the separation was suspended for a period of 12 months.  Mr. Gapasin, who recognizes that the distribution charge which allegedly occurs during the period of suspension had to be disproven in order for his client to be retained.  Under the applicable regulation, if no misconduct occurs during the period of suspension, then Gapasin’s client could not be separated for the DUI.  The allegation of distribution is made with 3 months left in the client’s period of suspension.  Gapasin presents significant evidence disproving these false allegations that his client sold drugs.  Gapasin even reaches out directly to the person whom CID claims the client sold LSD to.  Gapasin intentionally elicits key text messages from this alleged buyer who admits that his client never sells him LSD.  Mr. Gapasin texts:  “You didn’t tell CID that [Gapasin’s client] sold you drugs correct?”  Alleged buyer:  “I agreed with [third party’s] story after being coerced then in my memo to the COL I told them I didn’t do it”. Gapasin:  “Understood, but [Gapasin’s client] never sold you drugs, right?”  Alleged buyer:  “No”.  Gapasin:  “No he did not sell you drugs?  Just trying to clarify, I’m requesting your file currently.”  Alleged buyer:  “No he did not.”  Gapasin moves to admit these texts to the Board along with other exhibits disproving the allegations.  RESULT:  RETAINED, with the allegation of Distribution of LSD found UNSUBSTANTIATED.

 

March 23, 2022, U.S. v. CW3, United States Army, Fort Meade, Maryland.  The Government initiates a Board of Inquiry to separate a Chief Warrant Officer with over 18 years of service.  The basis of the Board stems from an evening in 2020 that results in a DUI and an allegation of domestic battery in the parking lot of a bar restaurant.  At the Board, Mr. Gapasin argues how his client never receives a referred OER, nor any UCMJ action.  Gapasin also argues how his client’s flag is lifted 7 months after the incident allowing him to promote to CW3 even after the event.  Gapasin further harps on his client’s 18 years of dedicated and honorable service, including the submission of 37 character letters and an Estimated Retirement Benefits Memorandum reflecting total retirement in the amount of 1.6 million dollars should he retire in 2024 and live to the age of 80.  RESULT:  Officer Board RETAINS Chief Warrant Officer, allowing him to reach 20 years and obtain his full RETIREMENT BENEFITS.

 

March 16, 2022, U.S. v. E-5, United States Army, Fort Rucker, Alabama.  Sergeant is a 68W, Medic, out of the 2-506th Infantry Regiment, Fort Campbell, KY, the same regiment which the acclaimed mini-series, Band of Brothers, is based on.  The Government prefers multiple charges and specifications against the Sergeant, to include 6 specifications under Article 120, sexual assault, and 8 specifications under Article 93 for maltreatment.  The Government alleges the Sergeant committed such crimes by ordering 6 of her junior enlisted Soldiers to perform core temperature checks on each other during a medic platoon field exercise.  These Soldiers claim they were in fear of saying no because of her tough reputation.  The Sergeant retained Mr. Gapasin to represent her.  At trial, the Government argues how the training is unnecessary and rarely conducted on a live human being.  If it ever is conducted on a live human being, then there at least must be full consent.  The Government also calls a witness who is an instructor and writer of guidance and policies for 68W medics.  She testified how TRADOC simply does not train such procedures because it is “inappropriate.”  Gapasin, however, focuses on how critical obtaining core temperature was in the treatment of heat casualties.  Core temperature is a vital sign, and if the medic fails to obtain an accurate reading of the patient’s temperature, serious injury and even death can occur.  Gapasin elicits testimony from 2 defense witness how 2 mass casualty events occurred on Fort Campbell which subsequently led to the manner in which the client was trained.  Gapasin also elicits how a Battalion XO was admitted to the ICU due to medics incorrectly obtaining his core temperature.  Gapasin argues how his client was training her Soldiers just as her prior leadership had trained her to obtain core temps, i.e., with live human beings.  Gapasin further argues how his client was conducting essential training on a “common medic task.”  The Government litigates the case aggressively, with the JAG Corps even assigning an “HQE” to assist the prosecutors.  HQEs are Highly Qualified Experts and are considered the most experienced of civilian litigators employed with “TCAP”, the Trial Counsel Assistance Program out of Fort Belvoir, VA. Contrary to the Government, Gapasin argues how the evidence should not be viewed “from the top”, but instead at the unit level, and how she was an NCO training her Soldiers on an essential skill in the same way she was trained.  RESULT:  Officer and Enlisted Panel find Gapasin’s client NOT GUILTY of ALL 14 Charges and Specifications.  NO Federal Conviction, NO Confinement, NO Sex Offender Registration.

 

March 10, 2022, U.S. v. E-4, United States Marine Corps, Camp Lejeune, North Carolina.  Lance Corporal pops hot for THC in a urinalysis conducted after returning from leave for his sister’s wedding.  Lance Corporal’s command gives him no other options but to accept the NJP and waive his right to a separation board with an Other Than Honorable (“OTH”) Discharge.  This Marine would be forced to take a characterization of discharge that would stigmatize him for the rest of his life and significantly handicap him from suitable employment opportunities.  The Lance Corporal’s level of THC was a small nanogram level above the DOD-acceptable limit.  Mr. Gapasin ultimately advises him to turn down NJP since his goal was to avoid an OTH at all costs.  Gapasin aggressively represents client and the Marine Corps subsequently dismisses court-martial charges against his client.  Mr. Gapasin then represents his client at a separation board and focuses on the low nanogram level of THC.  RESULT:  Court-Martial DISMISSED.  Though initially recommended for an OTH characterization of discharge, Mr. Gapasin obtains a General “Under Honorable Conditions” discharge, allowing his client to maintain ALL benefits and allowing him to REENLIST in the future.

 

January 6, 2022, U.S. v. O-4, United States Army, Fort Leavenworth, Kansas.  Army Major with over 17 years of service attending the Army War College is accused by his command of committing multiple instances of false official statement, Article 107, UCMJ.  He is also accused of violating a DOD stop-movement order by traveling to Fort Hood which is outside a travel radius imposed due to COVID, Article 92, UCMJ.  Despite being so close to retirement eligibility, the Major receives an administrative reprimand and his unit initiates dismissal of this officer.  At the Board of Inquiry, Mr. Gapasin argues how his client’s hostile ex-wife consistently made false allegations against him to his command multiple times a week.  Gapasin elicits testimony how his ex-wife’s constant complaints and allegations that he was withholding support, and how she was the victim of domestic violence had become a nuisance to the unit.  Gapasin argues how his client became a target of his command because of his ex-wife’s repeated threats to his leadership that they were not doing anything about her complaints. Gapasin also focuses on the minor criminality of the allegations, and how separation so close to retirement would not be justified in light of his client’s 17 years of dedicated and honorable service.  RESULT:  Board RETAINS Gapasin’s client allowing him the opportunity to retire and receive FULL BENEFITS.

 

November 18, 2021, U.S. v. O-4, United States Army, Fort Bragg, North Carolina.  Special Forces Major (O-4) with over 19 years of Active Duty service is charged with multiple specifications under the UCMJ, to include 2 specifications of communicating a threat, 4 specifications of assault and battery with one specification charging the Major with a means likely to produce death or grievous bodily harm by strangulation, and with one specification including assault and battery on a minor, 5 specifications of conduct unbecoming an officer, and also adultery, fraternization specifications, animal abuse and endangering the mental health of a child under the age of 16.  Gapasin aggressively cross-examines his client’s accusers, which includes his ex-wife and his two estranged 19 and 20-year-old children.  At trial, Gapasin reveals the Government witnesses’ lack of credibility, exposing how the ex-wife only reported her allegations after Gapasin’s client filed for divorce, which the client had filed for thereby denying her opportunities for any of retirement.  Gapasin also elicited her real motive to fabricate during cross-examination.  Testimony revealed how the ex-wife failed to obtain any monetary support for the divorce and how their biased daughter felt it was “unfair’ that her mom was coming out of the divorce with “nothing.”  The testimony revealed that the daughter was biased in favor of her mother.  Gapasin emphasized how all of her allegations were rooted in jealousy over his client’s relationship, jealousy over his money, and jealousy over his 7000 sqft house. RESULT: Officer Panel finds Client Not Guilty of 12 out of 17 specifications.  Though sentenced to some minor confinement, O-4 is NOT Dismissed, thereby preserving all Retirement benefits after the trial.

 

June 25, 2021, U.S. v. E-5, United States Marine Corps, Marine Corps Base — Hawaii, Kanoehe Bay, Hawaii.  Sergeant is accused of sexual assault under Article 120, UCMJ, and of false official statement under Article 107, UCMJ by allegedly lying by claiming he did not have sex with the alleged victim.  Sergeant’s DNA is found from swabs of the alleged victim during a sexual assault forensic exam (“SAFE”).  Admissions that the alleged victim vomited from her level of intoxication and therefore could not consent were also included with evidence obtained from the investigation.  Mr. Gapasin begins representing the Sergeant at the preferral of charges.  Gapasin filed multiple motions for this Article 120, sex assault case.  Gapasin approached trial with the theory that the Government would fail to satisfy its high burden of proof because of the real possibility that the alleged victim conducted herself in a blackout state of mind and therefore could have consented but had no memory of doing so.  Gapasin cross-examined three other witnesses at the house where the incident took place and elicited testimony that the alleged victim was walking, talking and acting in a coherent manner.  Gapasin also elicited testimony that clearly resembled that of the alleged victim engaging in serious flirting with another witness at the house.  Mr. Gapasin delivered the fateful blow by calling the Defense’s expert psychiatrist, a Navy Captain, who testified that his opinion to a reasonable degree of medical certainty was that the alleged victim was blacked out, and not completely unconscious as she claimed.  The Government could provide no rebuttal to the testimony.  RESULT:  NOT GUILTY to ALL Charges, NO Federal Conviction, NO Confinement, NO Sex Offender Registration.

 

May 2, 2021, E-5, Administrative Separation Board, United States Army Reserves, Chicago, Illinois.  Sergeant (E-5) who is new to this reservist unit is accused of sexual assault on two separate dates by a female Specialist.  According to the allegations, the Sergeant committed abusive sexual contact during a car ride to a casino in the St. Louis area.  The second accusation was that the Sergeant engaged in “hip pocket training” and touched her multiple times on her buttocks and groin in tying a “Swiss Seat” used in rappelling during some downtime in the headquarters.  Her two enlisted friends apparently corroborated both alleged assaults in sworn statements to CID.  Accuser appears on CBS News with Norah O’Donnell and makes accusations on national television that she was assaulted during a training exercise.  Several news articles were written about this command and how her allegations were met with reprisal, thereby resulting in the reprimand of multiple Officers and Senior NCOs, along with the removal of a Reserve Commanding General.  Sergeant is caught in the middle of this high-profile turmoil.  At the reservist separation board, Gapasin aggressively cross-examines the accuser, and her two friends, revealing multiple inconsistencies between their stories and failed attempts at corroboration.  The accuser’s male friend refused to continue answering questions during the board, requesting a lawyer following the reading of his Article 31 rights as he sat on the stand.  Both the accuser and her friends clearly attempted to falsely corroborate their stories, and Gapasin revealed multiple inconsistencies and contradictions, to include a diagram where the witnesses failed to be consistent where individuals were supposedly standing when the “Swiss Seat” incident allegedly occurred.  RESULT:  Allegations of sexual assault and sexual harassment are found UNSUBSTANTIATED by a Board composed of Officers.  Client is RETAINED.

 

April 23, 2021, U.S. v E-3, United States Air Force, Grand Forks AFB, Grand Forks, North Dakota. Airman First Class is accused by two female Airmen of rape and sexual assault on base.  Dorm cameras show the first alleged victim walking out of A1C’s dorm room in distress, then running to her room down the hall.  The alleged rape victim claimed the A1C was high on LSD and “Molly” at the time of the rape.  The second Airman claims she was sexually assaulted in her room  in the middle of the night when the A1C was heavily intoxicated and walked in to apologize for events in an earlier softball game.  The Government prefers charges for rape and sex assault against the A1C.  Mr. Gapasin aggressively cross-examines both alleged victims at an Article 39(a) to litigate an MRE 412 motion, i.e., to elicit prior sexual behavior of the alleged victims, which resulted in extensive contradictory testimony which could be used at trial.  Following the Article 39(a), and after Mr. Gapasin conducted considerable discovery, the accuser of the sexual assault declined to participate further.  Mr. Gapasin and his client proceeded to trial before an Enlisted Panel for the rape charge following several docketing delays due to COVID-19.  At trial, Gapasin honed in on the accuser’s multiple versions of events, and attacked the actual meaning of “pre-text messages” sent between the alleged victim and the client who was sitting with OSI agents at the time.  Gapasin used the pre-text messages to support an argument for reasonable mistake of fact as to consent.  At closing argument, Mr. Gapasin focused on the accuser’s multiple versions of events, her fabricated timeline and how the sexual intercourse had to be consensual due to the clothing worn and the activity in the dorm room.  RESULT:  NOT GUILTY of Rape.  NO Discharge, NO Sex Offender Registration.

 

9 April 2021, U.S. v. E-5, United States Army, Fort Leonard Wood, Missouri.  Drill Sergeant is accused of recording inappropriate videos on Snapchat that showed trainees showering and changing in the latrines.  The Government prefers charges against the Drill Sergeant under Article 92, UCMJ, for violating a lawful order issued in the Battalion’s Standard Operating Procedure (SOP) by wrongfully using his phone to photograph trainees.  Drill Sergeant denies the allegations.  Mr. Gapasin immediately begins reaching out to witnesses involved, learning that his client is well-respected by other NCOs, and that he exhibits good military character.  Evidence reveals that the only clear forensic evidence of photos or videos being taken was a single still photo that CID digitally extracted from the client’s phone.  The forensic evidence revealed that the photo was taken in March 2020, when the installation had just begun instituting COVID-19 restrictions among the trainees, such as limiting the numbers of Soldiers in the latrines, and taping off every other stall and sink.  This only photo showed several trainees in a gaggle in the latrine, but all were fully dressed either in PTs or their uniforms.  Several trainees maintained that Gapasin’s client would make them feel uncomfortable in the latrine, always being present and watching them when no other Drill Sergeant’s were in the latrines during that phase of training.  Gapasin argues at trial, however, that the photo was not taken for purposes of taking humiliating or degrading pictures of the trainees, but for purposes of showing other Drill Sergeants problems with attempting to maintain 6 feet of social distancing as mandated by the installation’s new COVID-19 restrictions.  RESULT:  NOT GUILTY of the Specification and its Charge, NO Federal Conviction, NO Confinement.  Additionally, Gapasin’s client was allowed to maintain his Drill Sergeant Hat and Badge until he PCS’d shortly after the trial, thereby avoiding any negative paperwork in his file.

 

February 12, 2021, U.S. v. E-5, United States Army, Kaiserslautern, Germany.  Military Police Sergeant is charged with 9 specifications under Article 120 for rape and sexual assault, 1 charge under Article 128 for strangulation with a force likely to produce death or grievous bodily harm, and 1 specification for AWOL.  Mr. Gapasin begins representing this client right before the start of trial.  Throughout the court-martial, Gapasin aggressively represents the client, filing motions for dismissal due to Unlawful Command Influence (UCI), and alleging the defective referral of the Article 128 strangulation charge.  The Military Judge did rule in favor of Gapasin pertaining to the defective Article 32 Preliminary Hearing so the judge ordered a second hearing.  The second Article 32 preliminary hearing also resulted in a finding of No Probable Cause as to the AWOL charge.  Gapasin had successfully litigated an MRE 412 motion to allow in key emails and text messages involving sexual behavior.  At trial, Gapasin thoroughly cross-examines the alleged victim using a number of emails and text messages to impeach the alleged victim’s testimony.  Gapasin’s theory was that due to his client divorcing the alleged victim, she quickly regrets compromising throughout the marriage and once the client divorces her, she seeks vindication.  RESULT:  NOT GUILTY of ALL Charges and Specifications.  NO Federal Conviction, NO confinement, NO sex offender registration. 

 

January 13, 2021, United States Coast Guard, Missouri State Court. Former Enlisted member with the Coast Guard had been convicted back in 2008. He entered a Guilty Plea and was convicted of “Knowingly Searching For and Attempting to Receive Child Pornography””. Following the conviction, he is processed and spends 8 months in confinement. He is told by unit personnel that he did not have to register as a sex offender for the particular charge which he received his conviction. After his conviction and in-processing to the brig, he did not sign any documents or forms acknowledging he would have to register as a sex offender. Moreover, nobody in the military required him to provide any information necessary for registration. Generally, following a court-martial conviction for a sex offense that is registrable, the convicted service member would be required to sign such documents acknowledging that the DOD required their registration in the military. At no time was he required to sign such documents. No such documents exist that he was required to register as a sex offender in the Military or in the Federal system. The member is released from the brig in September 2008. Approximately one week prior to his release date, he is told for the first time that he would have to register in the State of Missouri as a Tier One (I) offender. He properly registers in the State of Missouri and does everything he is required to do for ten years as a Tier One (I) offender. Due to a new law that is passed in Missouri, Tier One (I) offenders are permitted to petition for the removal of registration. However, because the State honors Federal registration, the State claims that he is not subject to the new law and therefore, his conviction under the UCMJ is a lifetime registration because Missouri will honor Federal law. Gapasin files a Petition to Remove Registration. Gapasin contacts client’s previous Navy counsel, who provides an email to the court that his belief at the time of the plea is that the conviction would not result in registration. Gapasin also looks to DOD Instruction 1325.07 that was in effect at the time of the plea. The specific offense the client pleaded guilty to was not a crime that required sex offender registration in the military. Gapasin makes three separate appearances in State Court on behalf of his client and focuses on Selig v. Russell in his argument for the removal of registration, and how Selig did not apply to his client’s case because he was never required to register with the Military nor with the Federal system at any time. The Court further noted that the State carried the burden of proof, but failed to provide sufficient documentation and evidence that registration in the Military or Federal system was, in fact, required.  RESULT:  Mr. Gapasin’s Petition for the Removal of Sex Offender Registration is GRANTED. After TEN (10) YEARS of being a registered sex offender, Gapasin’s client NO LONGER HAS TO REGISTER, despite the Federal system’s lifetime requirement.

 

January 9, 2021, U.S. v. E-5, United States Army, Schofield Barracks, Hawaii.  Sergeant is charged for abusive sexual contact under Article 120 and attempted abusive sexual contact under Article 80.  He is also charged with the maltreatment of a subordinate soldier, Article 128 for assault and battery and Article 92 for violating a lawful order.  Mr.  Gapasin files a key MRE 412 motion with the court in order to elicit evidence of the alleged victim’s past sexual behavior.  More specifically, Gapasin alleged that prior to the alleged assault, that she was married but still consented to getting together with the client.  Following the motion, the Government then learned of the alleged victim’s questionable conduct with the client prior to the alleged assault.  Just 2 weeks before trial, the Government withdraws the charges.  RESULT:  WITHDRAWN AND DISMISSED.  NO Federal Conviction, NO Confinement, NO Sex Offender Registration.

 

October 21, 2020, U.S. v. E-6, United States Army, Fort Knox, KentuckySupply Staff Sergeant with the New York City Recruiter Battalion is accused of larceny under Article 121 and under Article 107 for false official statement for purportedly lying to CID. Staff Sergeant asserts his innocence.  Mr. Gapasin had been retained on a previous BAH fraud case from the same battalion for a different client. The Government accuses Gapasin’s client of stealing approximately $100,000 over a period of two years by collecting BAH that he should not have been collecting because he lived in Coast Guard Housing. Mr. Gapasin proceeds to trial. He cross-examines the Government’s expert in Defense Finance and Accounting as well as his client’s estranged, hostile spouse. The spouse provides the Government with a number of legal documents. She tries to help the Government prove that her husband had the mental state of mind to steal from the Government and had knowledge of the wrongful, excess BAH payments he received. Gapasin cross-examines additional witnesses that the Government puts on the stand. Ultimately, however, Mr. Gapasin argues before an Enlisted Panel why the Government failed to satisfy its burden of proof to show his client intended to steal.  RESULT: NOT GUILTY of ALL Charges and Specifications. NO Federal Conviction.  The Successful Result of this NOT GUILTY Finding allows Client to be properly Medically Discharged and to be compensated with 100% Disability.

 

August 26, 2020, U.S. v. E-6, United States Army, Fort Knox, Kentucky.  Staff Sergeant who is a DA-selected recruiter with the New York City Recruiter Battalion is accused of larceny under Article 121 and of giving a false official statement to a CID agent under Article 107.  The Government prefers charges against him for allegedly committing BAH fraud against the United States by knowingly collecting twice as much as his typical base pay and not contacting the Army to inform them that he was incorrectly getting paid double for over 25 months.  In an interrogation video, the Staff Sergeant claimed he did not know that he was getting paid twice of what he should have made.  He also claimed that he properly turned in all of his paperwork for Coast Guard Housing and if there was a problem with his pay, then his pay should have been stopped by the Army or by the Coast Guard.  The Government prefers charges and the Staff Sergeant maintains his denial of the allegations.  At trial, Gapasin exposes weaknesses in the Government’s case and its failure to satisfy their high burden of proof.  Gapasin attacked the Government’s case because it only used statements made by his client at the video interrogation, and because it only focused on his LES’s and the increase in entitlements that they claim Gapasin’s client should have noticed after 16 years of military service.  Gapasin argued before an Enlisted Panel that  merely “assuming” what his client thought or believed was not the hard, solid facts needed under the law to satisfy the high burden of proof of beyond a reasonable doubt.  RESULT:  NOT GUILTY of ALL Charges and Specifications.  Gapasin’s client, a 16-year NCO, continues with his career and has the opportunity for retirement.

 

July 24, 2020, Board of Inquiry, Lieutenant O-3, United States Navy, Commander Fleet Activities Sasebo, Japan.  Lieutenant becomes the subject of a sexual assault investigation that takes place onboard a ship.  An allegation is made by a junior enlisted sailor against this officer, claiming that he forced himself on her in his stateroom which was located on the O-6 level of the ship.  Because the alleged victim tells the Government that all she wants is for the officer to get separated, the Government decides not to prefer charges to a General Court-Martial.  The Government does, however, NJP this officer and initiates a Board of Inquiry to separate him from the Navy after over 20 years of service as both an enlisted member and an officer.  Mr. Gapasin focused on the seemingly absurd facts of the allegations, i.e., how she ended up on the O-6 deck without being seen, how she wasn’t heard by a witness who lived in an adjacent stateroom, and how she immediately received an expedited transfer from Sasebo to San Diego.  Gapasin also called the ship’s commander to testify about negative observations he made of the accusing sailor, to include incidents of malingering, lying to her mother about not receiving proper care on the ship, and expressing feelings of illness but still taking liberty when the ship arrived at the Philippines.  RESULT:  3-0 Vote by the Board that the allegations were UNSUBSTANTIATED.  Client with 23 years in the Navy is RETAINED and will receive FULL RETIREMENT BENEFITS.

 

June 20, 2020, U.S. v. E-5, United States Marine Corps, Marine Corps Logistics Base, Albany, Georgia.  Government prefers four charges against Sergeant of filing false and fraudulent claims (Arts. 132 and 124), false official statement (Art 107) and larceny (Art 121).  A combined number of 32 total specifications are preferred against him.  Sergeant faces considerable confinement and the possibility of a punitive discharge after being charged with allegedly submitting false lodging receipts for seeking reimbursement for utilities and other living expenses that he purportedly was not entitled to.  Sergeant maintains his innocence.  Mr. Gapasin immediately files a Motion to Dismiss due to Unlawful Command Influence (UCI) and enters into evidence a clandestine recording of the First Sergeant taken by another Marine in his client’s unit.  In the recording, the First Sergeant admits to the lack of guidance by the leadership, and he attempts to strong arm a number of Marines to take NJP to avoid a “court-martial and a dishonorable discharge”.  Although the motion was denied, Gapasin reveals a number of flaws in the Government’s case through witness testimony and evidence admitted during litigation of the motion.  Gapasin’s client continues to maintain his innocence although other Marines in similar circumstances accept NJP.  By accepting NJP, they later deal with DFAS’s recoupment of more than 30,000.00 dollars for each Marine due to their alleged fraud.  Gapasin proceeds to trial and focuses on the “sloppy, rushed administration of travel vouchers” as well as the lack of proper guidance by the command and its “one receipt policy” that resulted in countless mistakes to the financial detriment of the Marines.  Gapasin cross-examines the Government’s DFAS expert as well as the First Sergeant who admits there are a number of “gray areas” in the travel voucher process.  RESULT:  FULL ACQUITTAL of ALL 32 Specifications.  NO Federal Conviction, NO Confinement, NO Discharge.

 

March 9, 2020, U.S. v. E-2, United States Air Force, Holloman Air Force Base, New Mexico.  Airman is accused of the serious offense of the distribution of illegal substances in Alamogordo, New Mexico.  Airman adamantly denies participation in any such activity.   According to two other Airman, one of which agrees to testify under a grant of immunity, Gapasin’s client provides the name and contact information of the seller, then takes the other Airman to an apartment complex in town, and directs the sale of drugs from this seller to the two Airmen. Both give statements to OSI that the client was present and arranged the distribution, but client continues to deny participating.  Gapasin conducts his investigation and learns that both committed false official statements to OSI in order to save their own skins.  Both are well-known drug users at Holloman AFB, yet the Government never even obtained a positive urinalysis on Gapasin’s client.  Not only did Gapasin expose several contradictions and inconsistencies in the two “snitches'” expected testimony, but Gapasin’s review of the data extraction on the cell phones did not reveal texts from the client to the buyers as he was accused of having. Lastly, Gapasin presented the Government with its “Alibi” witness, who was expected to testify that Gapasin’s client was not even in Alamogordo, NM at the time of the alleged distribution.   RESULT:  ONE WEEK BEFORE TRIAL, charges against Mr. Gapasin’s client are DISMISSED AND WITHDRAWN.  No Federal Conviction, NO Confinement.

 

February 18, 2020, U.S. v. E-7, United States Army, Camp Humphrey, South Korea.  Sergeant First Class is charged by the Government for a DUI under Article 113, UCMJ and for violating Army Regulation 58-1 and therefore wrongfully using a Government-owned motor vehicle for other than official purposes under Article 92.  Both allegations stem from events occurring on the same evening.  The Government proposed that this Sergeant First Class take a deal by pleading Guilty to both counts in exchange for a cap on confinement, but for multiple months that simply was not equal to the punishment.  Rather than simply accepting the deal, Gapasin continued to push forward to trial, requesting that a forensic toxicologist be appointed to the Defense Team. The Defense also did not waive the Article 32 Preliminary Hearing but instead argued for dismissal or reducing the level of court-martial to a Special rather than a General Court-Martial.  The Preliminary Hearing Officer agreed and recommended that the level of disposition be changed from a General Court-Martial to a Special Court-Martial.  With the level of disposition reduced to a Special, and with Mr. Gapasin continuing to push to trial, the Government agreed to negotiations favorable to Gapasin’s client.  RESULT:  REPRIMAND ONLY.  No Federal Conviction, No Separation for DUI, NO Confinement.

 

December 10, 2019, U.S. v. O-4, United States Army, Joint Forces Training Base, Los Alamitos, California.  Reservist Major is accused of engaging in reprisal against a senior NCO in his company.  This is after the senior NCO reported alleged misconduct by members of the company when deployed.  Videos were taken by the NCO showing Soldiers allegedly violating the Rules of Engagement.  These videos were somehow “leaked” to the press and eventually shown by television media and also went viral.  Footage showed Soldiers in Humvees firing non-lethal bean bags into nearby vehicles on the highway.  Major is accused of reprisal against this NCO under the DoD Whistleblower regulations.  Gapasin strategically represents his client with the primary goal to result in unsubstantiated findings that the client took personnel actions against the NCO for making protected communications, e.g., hindered promotion, transferred his duty position, wrote up negative NCOERs.  Client faces court-martial or other adverse action such as a separation board if findings are substantiated that the client did violate whistleblower regulations.  Gapasin engages the DoD IG appointed to investigate this high-profile Whistleblower case.  Gapasin is present to represent his client for what will be a grueling 6-hour interview held at Los Alamitos and conducted by the DoD Inspector General. RESULT:  Client found NOT to have violated DoD Whistleblower Regulations, and allegations of such violations are held UNSUBSTANTIATED. 

 

December 9, 2019, U.S. v. E-3, United States Marine Corps, Cherry Point, North Carolina.  Lance Corporal is out drinking with friends when a physical alteration ensues.  When the dust clears, Lance Corporal had broken the jaw of one of his friends and is subsequently investigated for assault and battery.  Mr. Gapasin relays the issue to the Government, how the friend with the broken jaw had become extremely intoxicated that night and flipped out, yelling and screaming “Kill Me!”.  The friend wanted to kill himself, but then the friend turns on Gapasin’s client and starts pushing and spitting on him.  Suddenly, the friend rushes at Gapasin’s client and throws a punch.  Gapasin communicates how his client’s act of punching his friend was for a twofold purpose, for self-defense and also to neutralize his friend from hurting himself and others.  RESULT:  Government finds for Lance Corporal that he was defending himself.  Case DISMISSED.

 

December 6, 2019, U.S. v. WO1, United States Army, Camp Humphreys, South Korea.  Warrant Officer is suspected of having child pornography in his possession.  The child pornography was alleged to have been on an SD card that was inadvertently provided to law enforcement when it was found in his home.  Gapasin aggressively represents his client during the pre-preferral phase of the case.  RESULT:  Case DISMISSED, WO1 can continue his career without the fear of a conviction that could result in sex offender registration.

 

December 4, 2019, U.S. v. O-3E, United States Army, Fort Bliss, Texas.  Army officer with 19 years in the military is sent to a Board of Inquiry (BOI) for receiving a DUI and for reckless driving.  Captain had only 2 months left to submit his retirement package, but the Army refused to terminate the Board of Inquiry to allow him to submit for retirement.  At the Board, Gapasin highlights his client’s honorable service and fidelity for over 19 years.  Gapasin also obtains an Estimated Retirement Benefits Calculation (ERBC) report to argue before the Board that in light of his client’s stellar background, the DUI was not a 2 million dollar mistake, which was the total estimated amount he could lose if the Board were to involuntarily separate him.  RESULT:  Board RETAINS Gapasin’s client, allowing him to submit his retirement package and obtain FULL BENEFITS after a 20-YEAR CAREER.

 

October 25, 2019, U.S. v. E-7, United States Navy, Naval Base Ventura County, Port Mugu, California.  Well-respected CS1 aboard the U.S.S. Carl Vinson recognizes he has a problem and seeks help from the Navy.  CS1 self-refers for cocaine use.  Following treatment, and per the MILPERSMAN, an administrative separation board is automatically initiated against CS1.  The Navy is a branch of the military that currently requires the initiation of separation even if the use is discovered only because of the sailor’s self-referral.  CS1 seeks counsel and the Navy JAG defense counsel advises him that there is nothing he can do, that the Navy will certainly separate him and that there is not much he can do even if he argues before the board.  Mr. Gapasin aggressively prepares for the board and calls two former O-5s to testify on his behalf.  Gapasin also highlights his client’s accomplishments and popularity, arguing that he is “the face” of the U.S.S. Carl Vinson.  The Government also drops a number of medical records against Gapasin’s client, reflecting that the cocaine use reached back at least 6 years prior to the self-referral.  None of the use occurs on a ship but at home port.  Despite these medical records reflecting prolonged cocaine use over a period of 6 years, and despite the Navy JAG’s opinion of the CS1’s low chances of success, Gapasin fights on behalf of his client in this full day board.  RESULT:  RETAINED, recommendation allows CS1 to remain in the Navy.

 

September 13, 2019, U.S. v. E-4, United States Army, Fort Campbell, Kentucky.  Specialist and his wife are suspected of the assault and battery and death of their infant child.  CID aggressively interrogates both the Specialist and wife separately, accusing them of having committed the purported injuries that could have caused injuries which the Government asserted resulted in the death of the child.  Because the wife was a civilian, Gapasin contacts the Special Assistant United States Attorney (SAUSA) who is JAG and stationed on Fort Campbell.  Gapasin and the SAUSA confer about the case and Gapasin points out that the injuries you would expect to see from a “battered baby” or “shaken baby” are simply nonexistent in the x-rays and other medical tests conducted.  CID even conducts toxicology tests to determine whether or not injuries could have been inflicted in a manner other than from shaking or blunt force.  RESULT:  CASE DROPPED, NO Charges, NO Court-Martial.  Cause of death found to be based on unknown causes.

 

August 1, 2019, U.S. v. E-5, United States Army, Parris Island, South Carolina.  Sergeant is accused of committing fraud and larceny at the Base Exchange when purchasing a laptop.  Sergeant uses a credit card to make the purchase which successfully goes through and the laptop is handed to him.  The Base Exchange later claims, however, that the purchase was fraudulent and the Sergeant committed larceny by using a card under a fraudulent account with no funds.  Mr. Gapasin represents Sergeant and analyzes the case.  When the Government proceeds with a Field Grade Article 15 nonjudicial punishment, Gapasin and his client have to decide whether or not to proceed with the Article 15 or to turn down the Article 15 and opt for court-martial.  Gapasin recognizes that his client had attempted to correct the transaction along with other circumstances that did not reflect the element of the “intent to steal” as is required for the charge of larceny.  Gapasin advises client to proceed with the Article 15 but to plead Not Guilty and to put on a defense.  Defense presents a number of documents and character evidence in support of the client.  RESULT:  FULL ACQUITTAL of fraud and larceny, NO punishment, AVOIDS court-martial trial.

 

July 16, 2019, U.S. v. E-6, United States Marine Corps, Iwakuni, Japan.  Charges are preferred against Staff Sergeant for numerous offenses involving alleged sexual harassment and bullying of several female subordinates.  Staff Sergeant is also accused of violating lawful general orders for the manner in which he stored and transported explosives and flammable military property.  He is charged under Article 92 for violating lawful orders.  Ultimately, Staff Sergeant is charged under eight (8) total specifications.  Client has only 18 months prior to retirement. His primary goal is to stay out of confinement and to simply retire after those 18 months.  Gapasin represents his client aggressively, filing motions on his behalf, to include a Motion to Exclude Evidence under M.R.E. 404(b), in order to keep out aggravating evidence which includes allegations of his client engaging in inappropriate sexual conversations with multiple women at the Base Exchange and a restaurant.  Gapasin goes to Iwakuni, Japan to litigate the motions.  Multiple specifications are eventually deemed insufficient by the Military Judge and the Government opts to dismiss those specifications.  Client enters a plea and accomplishes his goals.  RESULT:  NO DISCHARGE.  Client is allowed to finish the remaining 18 months of his career and RETIRE, saving his military benefits.

 

July 1, 2019, U.S. v. E-7, Tennessee National Guard, Nashville, Tennessee. Master Sergeant enters a Recruiting Office with a shotgun, allegedly cycles the action of the weapon and allegedly announces that he was going to “take care of this problem” as he went into the office to meet with two trouble Soldiers under him. The incident is covered by local news media. The Tennessee National Guard immediately flags the Master Sergeant and begins an investigation into the incident. The investigation into the Master Sergeant and background issues regarding the two Soldiers takes several long months. The case languishes and the Master Sergeant is unable to move forward with his career.  Mr. Gapasin’s investigation immediately reveals a number of issues behind the backgrounds of the two Soldiers, to include adultery. Immediately, JAG contacts Mr. Gapasin. Rather than languishing under the continuing investigation, the Government starts moving on the client’s case. Despite the client’s concerns with being preferred to a Court-Martial, the Government instead issues a Letter of Reprimand against Gapasin’s client. Gapasin responds to the Brigadier General’s Letter of Reprimand and requests either withdrawal of the reprimand or a local filing so it will not hurt his client’s career or force him to involuntarily separate. RESULT: Brigadier General LOCALLY FILES the Letter of Reprimand, thereby allowing Gapasin’s client to continue with his career with plans of retirement.

 

June 26, 2019, U.S. v. E-5, Maine Air National Guard, Bangor, Maine. Staff Sergeant faces separation proceedings pursuant to allegations of a pattern of misconduct. The alleged misconduct included an Article 15 in Bahrain, violating off-base pass privileges, an alcohol-related event at McGhee-Tyson that purportedly included being verbally aggressive with Security Forces and two vehicle incidents involving a fire truck and making contact with concrete security barriers.  Mr. Gapasin immediately contacts witnesses involved in these incidents. The only evidence reveals a “pattern” of sexual discrimination, harassment and reprisal against his female Staff Sergeant client. At the separation board, Gapasin vigorously cross-examines Government witnesses and also calls witnesses to testify who confirm that his female client is the subject of discrimination resulting in targeted punishment. Gapasin characterizes the case as a case about “power”, in which her Senior Master Sergeant and others over her exercise the “power to slander” and the “power to punish”. The three officer board deliberates. They return and find NO pattern of misconduct. RESULT: FULLY RETAINED, with NO Pattern of Misconduct in client’s record.

 

April 23, 2019, United States Marine Corps, Camp Butler, Okinawa, Japan.  Lieutenant Colonel’s (O-5) family member faces accusations of sexual assault and sexual abuse.  The family member is a civilian and a dependent of this Lieutenant Colonel.  Because of the allegations, this family member faces Dependent and Civilian Component Misconduct pursuant to DoD Instruction 5200.08 and Marine Corps Installations Pacific Order 5560.1.  The procedures are intended to provide for the general welfare and safety of those under the jurisdiction of the installation command. LtCol attends the Military Magistrate Hearing which was to preside over the merits of the allegations against the LtCol’s dependent.  If found guilty, the magistrate would also determine the appropriate punishment.  LtCol attends hearing and his family member is found guilty, with a punishment of total debarment from the installation.  Debarment would require the LtCol to move from Okinawa and return to the States and leave his assignment.  This would have seriously affected his career and resulted in a number of additional problems that included the negative psychological impact to the family member.  Mr. Gapasin works with the client to submit an appeal that highlighted a number of matters that were not previously brought before the Military Magistrate, to include the ambiguous allegations of the accuser, the clear likelihood of consent and the lack of credibility of the accuser and those supporting her.  RESULT:  Hearing Punishment OVERTURNED.  Punishment ONLY SUSPENDED.  Client is not required to move back to the States and his career remains intact.

 

January 28, 2019, U.S. v. E-7, United States Army, Fort Benning, Georgia.  Sergeant First Class (E-7) client is falsely accused by his wife of domestic assault and sexual assault.  Mr. Gapasin begins representing Sergeant First Class before charges are preferred.  Mr. Gapasin assigns an investigation team to the case.  NG’s investigators interview several witnesses including the E-7’s children who were allegedly present during the alleged domestic violence and sexual assault.  After a thorough investigation, NG discovers that the complaining witness told her children that she was having an affair on the E-7 and that she, the complaining witness, knew that as a Soldier herself, she could get in big trouble for committing adultery.  Through the investigation, NG also determines that the children never once saw, heard, or ever believed that the E-7 sexually assaulted his wife at any point.  The investigation uncovers how on at least one occasion, the complaining witness tells her oldest child that the E-7 had never hurt her or assaulted her and that she was just afraid of being punished and left alone.  RESULT:  CASE DISMISSED.  Client KEEPS HIS RETIREMENT.  Client’s retirement is salvaged and he will be able to retire with an Honorable Discharge.    

 

August 8, 2018, In Re K.C. (Applicant), Defense Office of Hearing and Appeals (DOHA), Washington D.C.  Applicant is issued a Statement of Reasons denying him his security clearance which he held for over 30 years.  The Department cites disqualifying security concerns involving a student loan debt that was charged off in the amount of $97,000.  The Department also accuses Applicant of not being truthful on the Electronic Questionnaire for Investigations Processing, dated 2016.  Applicant’s entire career rested on maintaining his security clearance.  Mr. Gapasin physically represents client at the DOHA hearing office in Arlington, Virginia.  Gapasin argues on behalf of his client, how he co-signed the student loans for his son, and how his client was trustworthy and reliable with an excellent reputation of maintaining his financial obligations.  Gapasin also provided the Administrative Law Judge with documents from Key Bank showing that the bank charged off the debt with no requirement to pay.  The Judge ultimately found that the evidence presented mitigated any security concerns and that it was consistent with the nation’s security interests to grant K.C. his security clearance.  RESULT:  Security clearance eligibility is REINSTATED. 

 

May 23, 2018, U.S. v. E-6, United States Marine Corps, Camp Pendleton, San Diego, California.  Staff Sergeant is accused of attempting to defraud the U.S. Government by collecting reimbursement for in-home respite care  for his autistic son while stationed for 18 months at Twentynine Palms, California.  Government also accuses him of forging his signature on official federal documents, conspiring to commit fraud with his wife and sister-in-law and false official statement by claiming care was occurring in his home when CID claimed it was not occurring.  Charges are preferred to a General Court-Martial. Mr. Gapasin aggressively approaches the Article 32 Preliminary Hearing by requesting multiple employees with the Exceptional Family Member Program (EFMP).  Statements with the EFMP personnel reflect backbiting and numerous accusations against each other.  Equal Employment Opportunity (EEO) investigations were even initiating amidst claims of employees that others were targeting African-American families and claiming fraud. Gapasin portrayed his client as being caught in this crossfire.  Just prior to the Article 32, the Government dismissed the charges but then initiated separation for Gapasin’s client.  With 13 years in the Marine Corps and still asserting his innocence, client continues to retain Gapasin to represent him.  At the separation board, Gapasin focuses on a lack of knowledge of actions taken by his wife thereby proving he could not have intended fraud, as well as the existence of a forensic handwriting examination of his client’s signature that illustrated inconclusive findings as to whether his client forged documents.  RESULT:  Client is FULLY RETAINED, this is after the original General Court-Martial charges are DISMISSED.

 

April 3, 2018, U.S. v. E-5, Robins AFB, Warner Robins, Georgia. Staff Sergeant in Reserves tests positive for barbiturates following a voluntary urinalysis in support of her officer commissioning package. Staff Sergeant claims she never wrongfully used prescription medication. She asserts that she innocently ingested the substance when provided the medication from her sister-in-law for a migraine headache. Air Force proceeds with separation.  Mr. Gapasin aggressively argues the position of innocent ingestion and harps on the Government’s argument at closing when the Recorder argues, “we don’t know for sure whether she knew what she took.” Gapasin also argues that the seven (7) retention criteria were satisfied in light of several character letters Gapasin obtains for his client, to include one from a Vice-Wing Commander who was her former supervisor. RESULT: FULLY RETAINED.

 

March 22, 2018, U.S. v. GS, Magistrate Court, Fort Leonard Wood, Missouri. Physical Therapist employed by U.S. Army, Fort Leonard Wood is accused by a female Soldier of inappropriate sexual contact. Physical Therapist is suspended from his duties and he denies allegations of sexual assault.  Mr. Gapasin provides advice to the client on dealing with his employers and how best to approach the situation and other personnel with the goal of having the case dismissed. Gapasin also contacts the OSJA and informs the Government that the firm now represents this client. Within a few days of providing notice of Mr. Gapasin’s representation, the case is dismissed. RESULT: NO Charges in Magistrate Court, NO Federal Conviction, NO Sex Offender Registration.

 

March 15, 2018, U.S. v. E-1, Fort Leonard Wood, Missouri. Specialist who was formerly enlisted in the Coast Guard goes AWOL from Fort Leonard Wood. Specialist is fearful of his Drill Sergeant, who had previously held a knife to the Specialist’s throat threatening to kill him.  Mr. Gapasin contacts his client’s Company Commander, informing him that his client would return to Fort Leonard Wood. Gapasin hints, however, that there would be consequences of the Company Commander’s Drill Sergeant and the maltreatment and death threats Gapasin’s client had to endure. Mr. Gapasin and the client hoped that the unit would simply discharge his client without be placed in confinement or being charged in a court-martial. All the client wanted was to be discharged with no less than a General. Client did not want to continue with his career in the U.S. Army. RESULT: After over 30 days of being AWOL, Client is successfully discharged from the U.S. Army. NO Pre-Trial Confinement upon his return to the unit, NO Court-Martial, NO Federal Conviction.

 

November 17, 2017, U.S. v. E-6, Army Missouri National Guard, Springfield, Missouri.  Staff Sergeant is accused of the wrongful use and possession of THC following a urinalysis.  THC is a substance commonly found in marijuana or cannabis.  Additionally, a few months after Staff Sergeant popped hot, his home was raided by local law enforcement on the suspicion of trafficking and the illegal possession of marijuana, methamphetamines and possibly heroin or cocaine.  Army National Guard initiated a separation board and Staff Sergeant retained Mr. Gapasin to represent him.  At the board, Gapasin argued that a multitude of mitigating factors warranted against his client’s separation.  These factors included his time of service of fifteen (15) years, a number of awards and achievements and the extremely low level of THC found in his system of 20 ng/mL, just 5 ng/mL above the DOD cutoff level.  Gapasin harped on the fact that his client was medically prescribed THC just 3 months after the hot urinalysis and was therefore legally justified to take it shortly after.  Gapasin also pointed to the client’s debilitating health situation and how loss of his health insurance with an involuntary separation could result in the collateral consequence of a life-threatening situation.  RESULT:  FULLY RETAINED.  Although the use was found by the board beyond a preponderance of the evidence, that separation was NOT warranted.

 

October 17, 2017, U.S. v. E-5, Misawa AFB, Japan.  Staff Sergeant is accused of the use and possession of illegally-obtained valium.  Accusations of his illegal use are made shortly following a urinalysis that was conducted which resulted in a positive finding.  Intensive investigation is made against the Staff Sergeant and notably against his wife, a nurse practitioner who purportedly had access to medications through the Air Force pharmacy system as well as through other channels.  Charges are preferred against the Staff Sergeant.  Mr. Gapasin immediately files his request for the appointment of an expert toxicologist for purposes of trial.  Primary defense, however, is innocent ingestion, in that the accused innocently took or ingested medications without the knowledge that the medication was taken illegally.  Government requests that Gapasin stipulate to a number of witnesses in order to lay a proper foundation for entering evidence at trial against the client.  Government also requests that Gapasin permit two important OSI agents to testify via video rather than be physically present.  Gapasin rejects all Government requests and aggressively proceeds to trial.  RESULT:  ALL Charges are DISMISSED just before trial.  NO Federal Drug Conviction, NO Confinement, NO Discharge.

 

October 16, 2017, U.S. v. O-3, Camp Zama, Japan.  Captain dentist is accused of the possession of illegal drugs, false official statement and the solicitation of others to distribute unlawfully prescribed drugs.  Allegations were based on using his position as a dentist to illegally obtain drugs.  Captain accepted an Article 15 but then faced separation with possibility of an “Other Than Honorable Discharge” in a subsequent Board Of Inquiry (“BOI”) initiated against him.  Mr. Gapasin seeks to argue how his client had overcome the reason for the show cause proceeding by emphasizing the client’s performance and exemplary conduct since the initiation of the investigation against him.  Gapasin drafts and submits a rebuttal to the Initiation of Elimination arguing that the elimination action be terminated and that he be retained pursuant to Army Regulation 600-8-4.  Client prepares an affidavit and includes in the submission.  Gapasin focuses on client’s good military character, reasons he should be retained and how he has matured as an Army Officer and dentist.  Following submission of Gapasin’s rebuttal, the Convening Authority reconsiders the initiation of the Show Cause Board.  RESULT:  Elimination Action TERMINATED, Captain overcomes reason for the show cause proceeding.  FULLY RETAINED, NO DISCHARGE.

 

October 13, 2017, U.S. v. O-2, Fort Bliss, El Paso, Texas.  First Lieutenant is accused of sexually assaulting a female Private.  Private alleges that following a military ball, the Lieutenant and a Captain met her at a bar and conspired to bring her back to the Lieutenant’s apartment.  She alleged that the purpose was to sexually assault her while she was incapable of consenting due to alcohol.  She claimed very little recollection at his apartment due to her intoxication.  She claimed to remember the Lieutenant being on top of her and also forcing her to perform oral sex while the Captain observed.  Her memories were “hazy” and she only remembered pieces of the evening.  The Government charges the Lieutenant with sexual assault and conspiracy to commit sexual assault.  At trial, Gapasin argues how the DNA evidence obtained through a forensic examination points to the co-accused Captain as the one who had sex with the Private. Gapasin also argues how the Private was afflicted with “alcohol myopia” which distorts perception and results in a misperception of the context of events, in that she believed the client was having sex with her when it was actually the Captain.  Gapasin cross-examines the alleged victim, later arguing how her responses were evasive and failed to provide the “evidentiary certainty” needed for the Government to satisfy its burden of proof.  Gapasin not only attacks her perception, but her credibility as well due to her numerous inconsistencies and contradictions in interviews with the El Paso Police Department, the Sexual Assault Nurse Examiner (SANE) and CID.  RESULT:  FULL ACQUITTAL of All Charges and Specifications.  NO Confinement, NO Federal Conviction, NO Sex Offender Registration.

 

October 5, 2017, U.S. v. E-5, Whiteman AFB, Knob Noster, Missouri.  Staff Sergeant is accused of rape by former girlfriend after he messages her several years later and apologizes for an incident.  She alleges that as they ended their relationship the Staff Sergeant forcibly raped her in the shower, taking away her virginity “on the way out the door.”  Staff Sergeant is charged with rape under Article 120 and faces maximum punishment of life confinement.  Mr. Gapasin files a lengthy motion to elicit evidence under MRE 412, which is akin to what is commonly known as the “Rape Shield Laws.”  Gapasin moves the court to elicit fifteen (15) separate issues under MRE 412 exceptions regarding the alleged victim’s prior sexual behavior.  The Court grants a majority of Gapasin’s motion.  At trial, Gapasin cross-examines the alleged victim, revealing her misperception of events and her motives for reporting the incident as rape, even though she apparently consents to losing her virginity.  Gapasin also elicits the alleged victim’s true feelings for his client, and how his abrupt termination of their relationship before his PCS to Cannon AFB clearly led to her disappointment and to a subsequent unsuccessful relationship.  Broken down following her cross, and during the Government’s attempt to rehabilitate her on redirect, she concedes and testifies, “I understand why there’s doubt.”   RESULT:  FULL ACQUITTAL for Rape.  No Confinement, No Federal Conviction, No Sex Offender Registration.

 

August 10, 2017, U.S. v. E-6, F.E. Warren AFB, Cheyenne, Wyoming.  Tech Sergeant is accused by ex-wife of rape after drinks at a resort hotel in Guam. She makes the allegation when she is speaking with her commander.  She “unintentionally” makes an unrestricted report of rape when discussing her concerns about being medically discharged from the Air Force. She alleges that the Tech Sergeant violently raped her resulting in significant hip injuries that affected her PT and other matters. This “unintentional” reporting results in an investigation and the preferral of a charge of rape. Mr. Gapasin attends the Article 32 Preliminary Hearing and argues that even with the low burden of proof at the Article 32 Preliminary Hearing, the Government fails to present sufficient evidence of “force” as is required for the offense of rape per the 2007-2012 version of the offense. The Preliminary Hearing Officer (PHO) agrees with Gapasin and recommends dismissal. However, whether prompted by her Special Victim Counsel (SVC) or someone else, the alleged victim provides a second interview with OSI. The Staff Judge Advocate (SJA) commits an ex parte violation by “unofficially” (as put by the SJA in an email) contacting the PHO and requesting his advice to conduct a re-hearing on behalf of the alleged victim. A second hearing is scheduled based on the alleged victim’s second statement to OSI. Gapasin objects on the basis of Unlawful Command Influence (UCI), the SJA’s ex parte violation and on other grounds. Gapasin preserves all objections should the Government refer the case to trial. Gapasin argues at the second Article 32 Preliminary Hearing that even with her second statement, the Government again fails to establish the “force” element of rape. He also notes contradictions and inconsistencies between both of her statements. Subsequently, the PHO issues another recommendation for dismissal.  RESULT:  Following two Article 32 Preliminary Hearings resulting in recommendations for dismissal, the Government DISMISSES the Charge and Specification of Rape.

 

July 17, 2017, U.S. v. E-6, Camp Henry, Daegu, South Korea. Staff Sergeant is charged with abusive sexual contact and attempted sexual assault of an intoxicated female Private. Incident started at a dance club in Seoul’s Itaewon district and ended at the Private’s barracks room on the Army’s Yongsan Garrison. Two enlisted witnesses claimed to have seen the Staff Sergeant without his pants on and on top of or hovering above the incapacitated Private in her barracks room while alone. This was after she had vomited upon exiting a cab with the Staff Sergeant as they headed into the barracks. In addition to the two witnesses, barracks CCTV caught a video of the Staff Sergeant leaving her room by himself without his shoes on.  Staff Sergeant’s saliva DNA was subsequently found on the inside of the Private’s bra. Charges are preferred against Staff Sergeant.  Mr. Gapasin travels to Camp Henry and aggressively cross-examines the two witnesses, revealing a number of questionable inconsistencies and contradictions. Cross-examination of their friendship also brings suspicion, though any motive to fabricate is difficult to discern. Gapasin also reveals through cross-examination that his client’s saliva DNA could have been transferred during consensual sexual behavior between the client and the Private in the taxi cab. Gapasin files a motion under MRE 412 to elicit certain consensual sexual behavior between him and the Private. Following the filing of the motion and after Gapasin’s initial discovery request, Private declines to participate any further in the court-martial. Government moves forward with the two witnesses, but their credibility is somewhat questionable. Because the Government proceeds to trial with the two witnesses, Defense opts to submit a Chapter 10 request for discharge.  RESULT:  Chapter 10 Request is Approved. NO Federal Conviction, NO Confinement, NO Sex Offender Registration.

 

May 22, 2017, U.S. v. E-5, Fort Hood, Texas.  Sergeant is accused of committing sex assault under Article 120 of another Soldier in his platoon.  Allegations are made that he sexually assaulted a Specialist medic in the barracks at Camp Casey, Korea by getting on top of him and engaging in kissing and other acts while the Specialist was intoxicated and passed out.  A witness supposedly walks in on this and gives a statement to CID.  Government prefers charges against Sergeant for Article 120 sex assault charges.  Government also prefers specifications for assault and battery on a civilian spouse of another Soldier, and for indecent language to a Private First Class.  Mr. Gapasin contests jurisdiction and files several motions following the Article 32 Preliminary Hearing.  One week before trial, Government agrees to a previously made plea offer by Gapasin, reducing the Article 120 charges to the lesser included offenses of assault and battery, thereby avoiding any potential risks of sex offender registration.  At sentencing, Gapasin argues for no more than 45 days confinement and for no discharge.  Government asks for considerably more confinement and a Bad Conduct Discharge.  Gapasin focuses on the mitigating factors in the case as well as the extenuating circumstances of the offenses.  RESULT: Military Judge sentences Sergeant to only 60 days confinement with NO Discharge.  NO Sex Offender Registration.

 

May 18, 2017, U.S. v. O-4, Fort Knox, Kentucky.  Major in the Army Reserves is accused of multiple accusations, to include changing her OER with the intent to misrepresent, disrespect of a superior officer, false official statement, and other acts of alleged moral dereliction and substandard duty performance.  Mr. Gapasin represent the Major at her Officer Show Cause Board.  Gapasin cross-examines all of the Government’s witnesses testifying against the client.  Gapasin, however, moves into evidence his client’s OERs and letters of support, and he calls witnesses who portray the client as a truthful officer with good military character and solid, exceptional duty performance.  Gapasin presents a toxic command climate and personal reprisal against his client by the command.  The board composed of an O-6 and two O-5s recognize that the allegations against the client are unsubstantiated  RESULT:  FULLY RETAINED.  By a Preponderance Of The Evidence, Major DID NOT commit the alleged misconduct, she DID NOT commit acts of moral dereliction, and she DID NOT perform her duties in a substandard manner. 

 

May 5, 2017, U.S. v. E-4, Holloman AFB, New Mexico. Senior Airman is accused of the possession and use and limited distribution of several illegal Schedule I Controlled Substances, to include marijuana, cocaine, ecstasy and DMT. Fifteen other Airmen are implicated of the possession and use of these illegal substances to include others as well.  Mr. Gapasin intends to take his case to trial in order to avoid a Federal Conviction for drug use, which could seriously affect any employment following his Air Force career.  Gapasin pushes forward in this case with over 6000 pages of discovery and 15 co-defendants.  Many of the Airmen take guilty pleas at the advice of their ADCs, others proceed to trial and are found guilty.  Client’s case was moved to a later date by the Government so it could maximize the use of immunized witnesses whose trials have already been resolved or where they received a finding of guilty.   Gapasin presses forward despite the several convictions against previously tried co-defendants.  Just two duty days before trial, certain witnesses receive immunity and Gapasin interviews the witnesses revealing clear problems with the credibility of the Government’s “snitches.”  Gapasin continues to press to trial. One day before trial, with Gapasin continuing to press, the Government acknowledges the clear problems in its case.  RESULT: WITHDRAWAL and DISMISSAL of ALL Charges and Specifications ONE DAY before trial.  NO Federal Drug Conviction, NO Confinement, NO Discharge.

 

May 2, 2017, U.S. v. E-5, Nellis AFB, Nevada.  Staff Sergeant is accused of the wrongful use of marijuana when he pops hot on a urinalysis test for THC.  Staff Sergeant denies intentional use, stating that he must have innocently ingested when he frequented hookah lounges that must have had unclean or dirty hookahs with THC residue.  Govt does not believe him and issues him an Article 15, which would result in his separation from the Air Force.  Staff Sergeant turns down the Article 15 and opts for court-martial.  His command denies him the court-martial and instead gives him a reprimand and initiates a separation board, citing not just the alleged drug use but also 3 PT failures resulting in an administrative demotion.  The command conveniently decided to demote Staff Sergeant to Senior Airman within 24 hours of the board.  Mr. Gapasin investigates the claims of his client and recognizes a viable defense.  THC is apparently a “sticky” drug that can easily cling to plastic or glass.  Moisture, such as that in a hookah, would add to the “stickiness” of THC.  During the board, the Government’s own expert agreed with Gapasin, that the low THC levels from the client’s UA did support the “inadvertent” ingestion of THC residue from a dirty or unwashed hookah.  Additional evidence put on by Gapasin indicated that his client had gone to a hookah lounge within days of his UA resulting in the positive result of 20 ng/mL of THC.  The evidence presented supported Gapasin’s defense.  The board comprised of officers all agreed.  RESULT:  Evidence DID NOT support by a preponderance of the evidence that the Respondent wrongfully used marijuana.  Client FULLY RETAINED.

 

April 4, 2017, U.S. v. E-4, Washington Navy Yards, D.C. Hospital Corpsman (HM3) is charged with multiple specifications of domestic violence under Article 128 for assault and battery, to include holding a knife to the throat of his girlfriend, dislocating her shoulder by throwing her down, slamming her face against the dashboard of a car multiple times, and dragging her from a parked car by her hair and then proceeding to whip her with the strap of her purse.  He is also charged with wrongfully damaging the tires of a second alleged victim who was his fiancee.  Charges are preferred. At trial, Gapasin aggressively cross-examines the girlfriend, revealing that she lied to NCIS numerous times, even falsely wearing a sling to give credibility to her story even though her shoulder really was not dislocated.  Gapasin reveals girlfriend’s true motives for revenge and to ruin client’s career with false allegations of assault.  She admits to several lies from the stand and even storms off the witness stand and out of the courtroom while undergoing Gapasin’s cross-examination.  When she returns, text messages reveal girlfriend’s intent to “have no mercy” and to ruin his career.  Under cross-examination by Gapasin, she fully admits, “I didn’t care about my credibility then, I don’t care about my credibility now.”   RESULT: FULL ACQUITTAL, NOT GUILTY to ALL Charges and Specifications.  NO Federal Conviction, NO Confinement.

 

March 29, 2017, U.S. v. E-1, Fort Eustis, Virginia. Private just out of basic is accused of sexual assault by civilian residing in Virginia Beach, VA.  The accusations prevent Private from graduating.  Gapasin immediately finds a polygrapher to conduct polygraph testing, per the client’s request.  Gapasin closely consults with the polygrapher, a retired police officer.  Together they prepare the “relevant questions” that needed to be answered.  Client undergoes the two-hour polygraph and is successful as no deception is indicated.  Gapasin forwards the results to the Virginia Beach Police Department, CID and the Staff Judge Advocate’s office.   RESULT: Full Dismissal.  NO Federal Conviction, NO Confinement, NO sex offender registration.

 

March 9, 2017, U.S. v. E-6, Fort Campbell, Kentucky.  Staff Sergeant is accused of choking and pushing girlfriend down a flight of stairs after leaving a party.  The Government alleges that Staff Sergeant also intentionally kicked open a door striking her in the face causing a serious gash on her head.   She accuses the Staff Sergeant of striking her in the face with his hand and being drunk and disorderly.  Staff Sergeant is charged with aggravated assault, two counts of assault consummated by a battery, and drunk and disorderly conduct.  At trial, Mr. Williams aggressively cross-examines the Government witnesses.  The witnesses admit that Williams’ client did not appear or act drunk.  Additionally, Williams objects to much of the testimony that the Government tries to elicit from a paramedic and successfully prevents the Government from admitting crucial evidence.  Mr. Williams also renders the Government’s expert witness useless by demonstrating that the expert is unable to recall important details due to the passage of time.  The Government is unable to refresh her recollection.  The Defense admits a photograph into evidence that was taken immediately after the alleged incident.  The photo reveals that the Girlfriend’s wound was considerably minor, completely contrary to her previous claims.  Mr. Williams actually calls the Girlfriend back to the stand during the Defense case-in-chief.  She then testifies that the allegations are false and that the injuries she suffered were caused on accident.  RESULT:  FULL ACQUITTAL, NOT GUILTY to ALL Charges and Specification.  No Confinement, No Federal Conviction, No Punishment.

 

February 1, 2017, U.S. v. E-6, RAF Lakenheath, United Kingdom. Security Forces Flight Chief (TSgt) is charged with providing a false official statement in an investigation against him.  He is also charged with dereliction of duty for failing to maintain a professional relationship with one of his female Airmen.  This is following a public flight outing in downtown Bury, St. Edmond.  Charges are preferred. Gapasin immediately files a Motion to Dismiss due to Unlawful Command Influence against client’s Commander. Motion is litigated, but case proceed to trial. Gapasin aggressively cross-examines female Airman, revealing perjury and even forcing her to confess that she gave a false official statement when she initially reported client. Gapasin questions multiple witnesses to dispel accusations of favoritism and unprofessional behavior. Gapasin also argues before Officer Panel how client’s sworn statement was not false in relation to text messages between client and female Airman.  RESULT: FULL ACQUITTAL, NOT GUILTY to ALL Charges and Specifications.  NO Federal Conviction, NO Confinement.

 

November 9, 2016, U.S. v. E-5, Fort Leonard Wood, Missouri.  An agent (E-5 SGT) with the Criminal Investigations Division (CID) is at Fort Leonard Wood for investigative training when he is charged with assault and battery under 18  United States Code (“USC”) 113(a)(5).  According to reports, another female CID agent who was also at Fort Leonard Wood for training claimed the Sergeant physically assaulted her.  Any misconduct on the Sergeant’s record will completely end his career in law enforcement. Gapasin sees through the accuser’s real motives, which are to avoid punishment after his client had previously accused her of cheating on a test. Videotape footage of the accuser showing her using her cell phone to look up answers to cheat is provided to prosecutors. Gapasin and the client turn down Government offers to plead guilty and instead opt to proceed to trial in Magistrate’s Court.   RESULT: Charges filed under 18 USC 113(a)(5) are DISMISSED WITH PREJUDICE (meaning they cannot be filed in the future).  NO Federal Conviction, NO Confinement.

 

October 20, 2016, U.S. v. E-5, Mountainhome AFB, Idaho.  Staff Sergeant in the Air Force is charged with forcible rape and sodomy, abusive sexual contact and indecent viewing and visual recording following trip to a casino in Jackpot, Nevada.  He and a fellow Airman are accused of these charges by a civilian female whom they met while at the casino.  Staff Sergeant faces life confinement and registration as a sex offender.  Gapasin represents client at the Article 32 Preliminary Hearing and aggressively cross-examines key witnesses. Witnesses with the alleged victim at the casino reveal her lack of credibility and inconsistent testimony. Gapasin hones in on her provocative behavior caught on tape from casino floor cameras and he reveals her illicit drug use on that same night through the cross-examination of a key witness. Gapasin also attacks questionable DNA evidence collected in the hotel room by the local County Sheriff. Preliminary Hearing Officer recommends complete dismissal of the forcible rape and sodomy charges. Government proceeds to refer charges for abusive sexual contact and indecent viewing and visual recording under Article 120c due to forensic evidence obtained from client’s cell phone. Gapasin focuses defense at avoiding sex offender registration for his client. Following Gapasin’s efforts to avoid registration and potential confinement, Government agrees to a negotiated plea resulting in Article 15 punishment and waiver of a separation board. RESULT: COMPLETE DISMISSAL of Forcible Rape Charge and other related charges, NO Sex Offender Registration, NO Federal Conviction, NO Confinement.

 

October 17, 2016, U.S. v. E-6, Fort Bragg, North Carolina.  Army Staff Sergeant is accused of sexual assault while he and alleged victim are deployed to Kuwait. Staff Sergeant denies allegations and gives a statement to CID claiming their sexual activity was entirely consensual. Staff Sergeant tells CID to analyze the alleged victim’s cell phone because it would provide evidence that she consented. Nothing is done. Staff Sergeant advises his JAG lawyers to request the cell phone for analysis, however, no such discovery requests are made. Instead, JAG lawyer advises him to agree to 18 months of confinement and plead guilty for assault and battery in order to avoid sex offender registration. Staff Sergeant refuses to take the deal. Gapasin immediately files a Request for a Digital Forensics Expert to conduct an extraction of the alleged victim’s cell phone. Government denies this request, and CID apparently claims they “found nothing of evidentiary value”. Gapasin files a Motion to Compel Production of Expert, and the Military Judge grants the Motion. Gapasin requests that all Voxer messages from the alleged victim’s cell phone be subpoenaed.  Again, Government denies the request, and CID claims their “extraction of the cell phone failed”. Gapasin files a Motion to Compel Discovery, and the Military Judge grants the motion. Gapasin’s forensic digital expert examines the cell phone and digital evidence is extracted supporting the client’s claim that the sexual activity was, indeed, consensual.  Evidence from the cell phone also revealed that the alleged victim committed the crime of perjury when she testified under Gapasin’s cross-examination in a prior motions hearing. After multiple additional motions and discovery requests filed by Gapasin, the alleged victim declines to participate and the Government dismisses all charges and specifications. RESULT: ALL Charges and Specifications DISMISSED. NO Federal Conviction, NO Sex Offender Registration, NO Confinement. Subsequent separation board alleging sexual harassment for separate, unrelated accusers was TERMINATED after the Staff Sergeant retained Mr. Gapasin a second time.

 

October 13, 2016, U.S. v. E-2, Naval Station Mayport, Florida. Seaman Apprentice is accused of sexual assault by his estranged spouse and ordered into pre-trial confinement. Mr. Gapasin represents him and they proceed to a General Court-Martial trial. Gapasin aggressively cross-examines his client’s accuser, exposing her lack of credibility and her attempts to evade questions. For up to two hours, this key witness refuses to respond credibly to Gapasin’s cross-examination questions. Gapasin also reveals what he believes to be her true motives to fabricate, i.e., her desire to falsely accuse Gapasin’s client of sexual assault in order to gain full custody of their then-unborn child. Gapasin argues how the “timeline” is circumstantial evidence of her motives to fabricate. RESULT:  FULL ACQUITTAL, NOT GUILTY to ALL Charges and Specifications. NO Sex Offender Registration, NO Federal Conviction, NO Confinement.

 

October 1, 2016, U.S. v O-4, Charlottesville, North Carolina. Former client of Mr. Gapasin was retained by the U.S. Army Reserves following a separation board involving allegations of inappropriate sexual relationships with cadets. Gapasin successfully defends this Major at the Officer Board of Inquiry and he is retained. Client receives a notice several months later, however, indicating that his security clearance would be revoked due to these inappropriate sexual relationships. Gapasin represents him a second time to keep his security clearance. Gapasin advocates on behalf of the client, arguing facts that were elicited at the Board of Inquiry that reveals his client’s innocence. Gapasin provides documents and exhibits from the board hearing that were helpful in illustrating why his client was innocent of sexual impropriety with his cadets. RESULT: Security Clearance REINSTATED.

 

September 30, 2016, U.S. v E-5, Rose Barracks, Germany. Sergeant is accused by the Government of BAH fraud, obstruction of justice, communicating a threat and fraudulent enlistment. Sergeant’s estranged wife is the source of the more serious charges, making false allegations against him to avoid trouble for having committed past fraud against the U.S. Army and trying to claim benefits at her husband’s expense. Charges are preferred to a General Court-Martial. Mr. Gapasin represents his client at the Article 32 Preliminary Hearing and immediately exposes problems with the Government’s evidence. Gapasin reveals at the hearing that an email containing threats to hurt his estranged wife was actually fabricated. The email was doctored by his accuser wife to make it appear that Gapasin’s client was threatening to hurt her if she talked to law enforcement. Gapasin exposes multiple other fabrications on the part of the wife, to include lies about having gone to college, falsely claiming that Gapasin’s client was the father of her son, and conjuring false allegations of being the victim of domestic violence. RESULT: NO Federal Conviction, NO Confinement. Government agrees to Chapter 10 request two weeks before trial after Gapasin files multiple motions and discovery requests.

 

September 27, 2016, U.S. v E-5, Laughlin AFB, Del Rio, Texas.  Security Forces Staff Sergeant is accused of multiple specifications of dereliction of duty in his role as a member of Security Forces. Commander who has it out for him cancels his PCS orders, extending him at Laughlin AFB and proceeds to push for preferral of charges. Staff Sergeant only wants to be discharged from the Air Force without Under Other Than Honorable (UO). Charges are preferred.  Mr. Gapasin aggressively pushes to proceed to trial in this case. With only a couple weeks before the scheduled trial date, the Government relents and grants Gapasin’s client a Chapter 4, and with a General Characterization of Discharge Under Honorable Conditions. RESULT: NO Federal Conviction, NO Confinement. Obtained discharge with characterization of Under Honorable Conditions.

 

September 14, 2016, Yokota AB, Japan, U.S. v. E-5. Fight between two Air Force members breaks out in “Bar Row” just outside of Yokota AB. The Government prefers serious felony assault and battery charges against Staff Sergeant. Alleged victim Airmen incurs a broken jaw resulting in multiple surgeries with extensive recovery. Government further charges the Staff Sergeant with the intent to inflict Grievous Bodily Harm, which carries additional years of confinement. With just 1-2 weeks before trial, Mr. Gapasin begins representing the Staff Sergeant.  Gapasin moves the Court for a continuance which is subsequently granted. Gapasin finds clear self-defense on the part of his client. Gapasin aggressively cross-examines the alleged victim at trial and reveals his lack of credibility and exaggeration of facts. Witnesses whom Gapasin calls testify that the alleged victim bullied client’s Airmen whom the client was defending, physically assaulted the client and yelled derogatory names at him while intoxicated. This Airman continues to “play the victim and not the bully” from the witness stand. Ultimately, serious assault and battery charges are dismissed and client is only found “administratively” guilty of disorderly conduct. RESULT: NO Federal Conviction. NO Confinement. NO Reduction in Rank. NO Discharge. Minor punishment of forfeitures and restrictions to base.

 

July 1, 2016, Norfolk, Virginia, U.S. v. E-9.  Government investigates Master Chief Commissaryman (CSCM) in high-profile Navy case involving the Glenn Defense Marine Asia (GDMA) matter.  This case is heavily reported by newspapers and media outlets as the “Fat Leonard” case, which results in several high-ranking officials in Navy circles being federally indicted for accepting bribes and favors in exchange for information on US Navy ship movements in the Pacific. The information was allegedly for purposes of arranging visits to specific ports where GDMA handled ship husbanding chores.  CSCM finds himself a suspect of this wide-scale military investigation and faces possible confinement with a dishonorable discharge.  CSCM is accused of accepting gifts of discounted hotel accommodations and transportation in Kuala Lumpur, Jakarta, Darwin and Busan.  Mr. Gapasin begins representing him against allegations imposed by the GDMA Consolidated Disposition Authority (CDA). After conducting a diligent and thorough investigation, Gapasin responds to the allegations in written submissions and in a conference with Admiral associated with the CDA.  RESULT:  NON-PUNITIVE Letter Only.  NO Prosecution.  Allowed to continue with retirement from Navy. 

 

June 9, 2016, Fort Campbell, Kentucky U.S. v. O-2.  First Lieutenant is accused of forcible rape and several counts of assault and battery by estranged spouse, who is another Lieutenant whom he met in the Basic Officer Leadership Course (BOLC).  The Government prefers 13 specifications for rape, sexual assault, assault and battery, conduct unbecoming an officer and a gentlemen, communicating a threat, extortion, and violating a lawful order.  The Government also charges the client with the sexual assault of his first ex-wife.  At trial, Gapasin reveals a number of alarming facts:  how the alleged victim had a male officer stay at her home just days after filing for divorce, how she and the client had an adventurous sex life seeming to show consent or mistake of fact, and most importantly, that she had a motive to fabricate when she reported.  This is because she reported two days after receiving notice from her company commander that an investigation against her for adultery was inevitable. Gapasin also called an expert in cell phone forensics to testify that a text message stream that she took screenshots of and provided to law enforcement had been modified. Client adamantly denied sending a text that said, “you can’t rape your wife.”  This was a text that was contained within the faked text message stream provided by the accuser.  Gapasin’s cross-examination of the alleged victim put the nail in the coffin.  Her testimony was evasive and revealed a lack of credibility.  The ex-wife declined to participate following the filing of Gapasin’s motions and discovery submissions.   RESULT:  FULL ACQUITTAL, NOT GUILTY to ALL 13 Specifications.  NO Sex Offender Registration.  NO Confinement.  NO Federal Conviction. 

 

May 17, 2016, Fort Bragg, North Carolina, U.S. v. CW2.  Chief Warrant Officer received a General Officer Memorandum Of Reprimand (GOMOR) alleging he was involved in an inappropriate relationship with his platoon leader, a First Lieutenant, and alleging that he engaged in conduct unbecoming an officer.  This stems from allegations that the CW2 was stalking the lieutenant and taking photos of her and her purported NCO boyfriend.  The CW2 was also accused of sending threatening text messages to the lieutenant upon learning of this illicit relationship with the NCO.  The CW2 was notified that the GOMOR was to be filed in his Official File.  This would deny him the opportunity for Temporary Early Retirement Authority (TERA) after 17 years of service.  Such punishment would far exceed the crime.  The CW2, seeking no more than filing of the GOMOR in his Local, Unofficial File, retained Mr. Gapasin to represent him.  Gapasin advocated on behalf of his client, focusing not only on the mitigating circumstances of the case, but also on forensic evidence such as text messages that exonerated his client.   RESULT:  LOCAL FILING ONLY.  NOT filed in Official File.  Can successfully apply for TERA After 17 Years Of Honorable Service.

 

March 31, 2016, Torii Station, Okinawa, Japan, U.S. v. E-7.  Sergeant First Class assigned to 1-1 Special Forces is accused of attempting to deceive his chain of command with false official documents. Sergeant First Class is accused of forging a fictional commander’s name on his leave forms when he attended a HALO course in the States, and with attempting to deceive his command when he allegedly modified his evaluation reports (called NCOERs in the Army).  He denies the allegations.  Mr. Gapasin investigates Special Forces unit and finds a culture of “unwritten,” sloppy policies regarding the process of taking leave in the States.  Gapasin also reveals major flaws in the evaluation process thereby revealing how his client did not intend to deceive anyone regarding his evaluation.  Gapasin goes to trial and cross-examines several high-ranking members of this Special Forces unit.  RESULT:  NOT GUILTY of both Article 107 specifications for forging a fictional commander’s name and for modifying an NCOER with the intent to deceive.  NO Confinement.  NO Reduction in Rank.  Minor forfeiture of pay for unauthorized absence without leave.  

 

March 11, 2016, US Army Reserve, Charlotte, North Carolina, U.S. v. O-4.  Major with over 18 years in the Army was assigned as a trainer and professor of Military Science at a college.  Major is accused of engaging in an inappropriate sexual relationship with a ROTC cadet, engaging in a prohibited personal relationship and violating a lawful order by hosting a social event and providing alcohol to cadets without prior approval from the Brigade Commander.  Mr. Gapasin represents the Major at the board and fights hard, cross-examining Government witnesses who were clearly biased against his client due to his client’s hard-charging, by-the-book leadership style.  Gapasin argues how the Government failed to satisfy its burden of proof, and how it failed to contact important witnesses due to their lack of credibility.  Following Gapasin’s aggressive cross-examinations and closing argument logically stating the reasons for retention, the Officer Board agrees and retains Gapasin’s client.  RESULT:  FULLY RETAINED After 18 Years Of Service.

 

February 25, 2016, Fort Bliss, Texas, U.S. v. E-7.  Sergeant First Class is accused by a female NCO of abusive sexual contact and indecent exposure.  Unit initiates non-judicial punishment with the intent of separation but never provides the Sergeant First Class with evidence supporting the allegations.  Frustrated and still denied the evidence despite having detailed military counsel, Mr. Gapasin represents the Sergeant First Class with either moving forward with NJP or opting for a court-martial.  Mr. Gapasin immediately contacts the unit and requests that all evidence be provided to his client.  The unit finally relents and provides the client with the statements and investigative reports.  After thoroughly analyzing the evidence, Gapasin advises client to opt for the NJP.  Although 98% of all NJP results in a finding of Guilty, Gapasin still advises on proceeding with NJP based on his analysis.  Client follows Gapasin’s advice and 3-Star General Fully Acquits Gapasin’s client of alleged sexual offenses and Sergeant First Class can move closer to retirement. RESULT:  NOT GUILTY of ALL Specifications at NJP, NO Sex Offender Registration, NO Federal Conviction, NO Confinement.

 

January 22, 2016, Mountain Home Air Force Base, Idaho, U.S. v. E-6.  Tech Sergeant is accused of two specifications of unprofessional conduct.  One allegation is for maintaining an unprofessional relationship with a female Senior Airman (E-4) and also for serving drinks to the same Senior Airman, an alleged minor.  Any Guilty finding would end the Tech Sergeant’s career.  At trial, Gapasin aggressively cross-examines the client’s accuser, an Airman who used to be the client’s roommate.  This Airman is the one who accused client of having an unprofessional relationship.  The former roommate testified that the client would make out with the Senior Airman in their apartment and serve her drinks even though she was underage.  Gapasin handedly discredits client’s former roommate, revealing clear reprisal and a motive to fabricate because Gapasin’s client previously gave a statement to Security Forces that this former roommate had sexually assaulted a female Senior Airman.  RESULT:  FULL ACQUITTAL, NOT GUILTY of ALL Specifications.

 

January 5, 2016, Shaw Air Force Base, U.S. v. E-8.  Senior Master Sergeant is accused of 14 specifications involving allegations by a female Senior Airman of sexual harassment, maltreatment, Article 120 offenses for abusive sexual contact and indecent exposure.  This Senior Master Sergeant denies the accusations.  Air Force Times covers the case.  Based on Gapasin’s early investigation of Facebook posts and text messages, forensic messages reveal an infatuation by the Senior Airman towards the client.  Despite a long flirtatious relationship, she claims that fear from reprisal and the client’s connections as reasons for “leading him on” and giving him “false hope.”  The Government prosecutes client relentlessly.  The Military Judge even rules in favor of Gapasin’s Motion that an appearance of Unlawful Command Influence (UCI) existed when the Staff Judge Advocate and Wing Commander appeared to influence the base’s Chief Master Sergeant, who had agreed to testify on behalf of client.  Gapasin aggressively cross-examines the alleged victim and exposes her questionable motives and lack of credibility. RESULT:  NOT GUILTY of 12 out of 14 specifications.  NO Confinement, NO Sex Offender Registration.

 

December 8, 2015, Joint Base Elemendorf-Richardson, Alaska, U.S. v. E-3.  Airman First Class is accused of committing sexual acts with a child between the ages of 12 and 16.  Airman denied these allegations that could result in confinement and registration as a sex offender. His detailed Air Force defense counsel advised him early in the case to take a guilty plea which would have resulted in confinement as well as registration. Mr. Gapasin represents client at the Article 32 Preliminary Hearing where he conducted substantial crime scene investigations and witness interviews. Gapasin filed several motions requiring the Court to compel the Government to turn over the minor’s school disciplinary records, high school reports, any school counselings as well as mental health records.  Minor refused to testify regarding these matters. Following Gapasin’s motions, client opts to request discharge in lieu of a court-martial. Government approves the request.  RESULT:  NO Federal Conviction, NO Confinement, NO Sex Offender Registration. 

 

December 2, 2015, Camp Casey, Korea. U.S. v. E-6.  Staff Sergeant is accused of multiple allegations made by a female Specialist.  One of the charged specifications alleged that he committed forcible oral sex in the Specialist’s barracks room when she was too intoxicated to consent. This offense alone carried a maximum punishment of 30 years.  The Staff Sergeant’s DNA was obtained from underpants of the Specialist.  Mr. Gapasin cross-examines the accuser and reveals multiple inconsistencies in her allegations. He also cross-examines the USACIL lab forensic expert and reveals DNA results that are inconsistent with the accuser’s claim that she was forced to perform oral sex in the shower while too intoxicated to consent. Gapasin elicits testimony that reveals a lack of forensic evidence obtained from the Alternate Light Search (ALS) of the bathroom.  Officer Panel acquits client of forcible oral sex. Prosecutors ask for 10 years confinement for remaining offenses. Gapasin argues at sentencing and client receives NO confinement.    RESULT: NOT GUILTY to Forcible Oral Sex, NO Confinement.

 

November 23, 2015, Fort Leavenworth, Kansas.  Client, a Captain (O-3) is represented by Mr. Gapasin to represent him at an officer separation board.  Client is accused by the Government of having sexually assault a young lieutenant at a home after a group of officers had gone out drinking. Client was also accused of sexually harassing a Specialist while on TDY. Gapasin cross-examined several witnesses and introduced a number of documents to include Agent Investigators’ Reports as well as sworn statements by witnesses who were present during both incidents.  Gapasin revealed how both accusers used false sex assault allegations to avoid some form of administrative punishment.  After a full day of taking testimony, and at the conclusion of all the evidence, the Board of Officers fully retains Gapasin’s client.  RESULT:  FULLY RETAINED.

 

November 13, 2015, Rock Island Arsenal, Illinois. U.S. v. O-4.  Major (O-4) is accused of wrongfully and knowingly ingesting THC, or marijuana, after testing positive in a urinalysis.  Major asserts this was not done knowingly. Just prior to trial, the Government agrees to dismiss the charge and specification that could have led to a felony drug conviction. Case proceeds to a General Officer (“GO”) Article 15 and Gapasin serves as client’s spokesperson at the Article 15 hearing. Three-Star General presides over hearing and finds insufficient evidence to find Gapasin’s client guilty of wrongfully and knowingly ingesting THC.  RESULT:  FULL ACQUITTAL, NO Federal Drug Conviction, NO Confinement, NO Discharge.

 

October 28, 2015, Fort Campbell, Kentucky. U.S. v. E-4.  Highly-Decorated Corporal is charged with multiple specifications of maltreatment and assault of one of the Soldiers in his squad.  This Soldier accuses him of kicking him during corrective training, communicating a threat and pointing both loaded and unloaded weapons at him at multiple times.  Other witnesses testified against the Corporal claiming that he did maltreat and assault the Soldier.  At trial before an Officer Panel, Mr. Gapasin aggressively cross-examines the accuser as well as the other witnesses and exposes multiple inconsistencies and a lack of corroboration.  Mr. Gapasin reveals how members in the squad could not handle the corrective training and high expectations of this Corporal.  The Officer Panel virtually acquits the Corporal and only finds that his corrective training went too far on one occasion.  RESULT: VIRTUAL FULL ACQUITTAL, NO Confinement, NO Discharge, VERY Minimal Punishment. 

 

July 30, 2015, Wisconsin National Guard, Madison, Wisconsin. U.S. v. E-7. Mr. Gapasin is retained in Wisconsin’s first-ever court-martial. Wisconsin National Guard unit prefers charges against Sergeant First Class based on the allegations of seven female cadets and recruits who allege sexual harassment and other serious misconduct. The Article 32, which did not proceed under the recently passed NDAA 2015, took place over the course of two days. During Mr. Gapasin’s aggressive cross-examinations, three (3) of the accusers refused to testify unless they were granted immunity. By the conclusion of the Article 32, seven (7) of the originally-preferred nineteen (19) specifications were dismissed. Mr. Gapasin conducted extensive discovery during the Article 32 and after it thereby revealing a lack of credibility of several of the client’s accusers. Due to the dismissed specifications and the lack of aggravating evidence, the client opted to negotiate a deal with the Government for minimal punishment. RESULT: Negotiated MINIMAL PUNISHMENT. NO Sex Offender Registration.

 

June 15, 2015, Marine Corps Base Hawaii, Kaneohe Bay, Hawaii. U.S. v. E-2.  Young Marine is accused of disobeying a lawful order, disobeying a superior commissioned officer and obstruction of justice following a skirmish off the highway with an Army Provost Marshal.  Marine is given non-judicial punishment with an understanding that his command would separate him from the Marine Corps with an Other Than Honorable (“OTH”) discharge.  Gapasin advises client to turn down the non-judicial punishment and opt for court-martial.  Charges are preferred and Gapasin files a Motion to Dismiss all charges and specifications arguing that the charges are unsupported by the evidence.  Following argument at the Article 39(a) motions hearing on the first day of the trial, Military Judge grants Gapasin’s Motion to Dismiss. RESULT:  FULL ACQUITTAL of ALL Charges and Specifications.

 

April 1, 2015, Fort Leavenworth, Kansas. U.S. v. O-3.  Captain in the Army is false accused of sexual assault of a female Lieutenant when they were both stationed in Germany and before returning to the States.  According to the Lieutenant, a group of officers hung out after a night of drinking and slept in the home of another officer following a social gathering.  The Captain was present in that group.  Following that night, she accused the Captain of sexually assaulting her and charges under Article 120 were preferred against him.  The Captain vehemently denied the accusations and retained Mr. Gapasin to represent him.  Prior to the Article 32 Hearing, it was learned through diligent investigation that the Lieutenant had engaged in a prior inappropriate relationship in Germany and could have been facing disciplinary action.  Moreover, she could not identify the client in a lineup until after she finally saw him for the first time at a hail and farewell.  She then returned to law enforcement to pick him out of the lineup.  Mr. Gapasin pursued the investigation aggressively and listed approximately 20 witnesses to testify at the Article 32 hearing, to include whom she had the inappropriate relationship with as well as another witness who had previously been falsely accused by the Lieutenant of sexually assaulting her.  The day before the Article 32 Hearing, the Lieutenant declined to proceed. RESULT:  Charges DISMISSED The Day Before The Article 32 Hearing.

 

March 18, 2015, USAG Wiesbaden, Germany. U.S. v. E-7.  Sergeant First Class with 18 years in the United States Army is involved in a serious head-on vehicular accident on the German Autobahn and charged with serious offenses, to include drunken driving resulting in injuries to three German nationals, committing an assault with a means likely to inflict death or grievous bodily harm, as well as false official statement and drunk and disorderly conduct.  The NCO denied these allegations from the beginning and had asserted that another individual was driving his vehicle.  NCO is facing over 15 years of confinement and the loss of his retirement.  Mr. Gapasin immediately obtains the appointment of several experts to the defense team, to include an accident reconstructionist, a biomechanic expert and a forensic DNA and blood splatter expert.  Defense contended that the injuries sustained by the client were not consistent with damages to the interior of the client’s vehicle.  The driver side airbag revealed blood splatter but all hospital records revealed the client sustained no blood loss nor cuts or lacerations.  Following a contentious Article 32 hearing and several motions filed by Mr. Gapasin, all serious assault and battery charges as well as both statements for false official statement were dismissed.  RESULT:  DISMISSAL Of  Serious Assault And Battery Allegations, NO Discharge Allowing Client To Retire After 18 Years. 

 

February 27, 2015, Naval Station Norfolk, Norfolk, Virginia. U.S. v. E-9. Master Chief with 28 years in the United States Navy faces serious sexual assault charges to include stalking.  Government also charges Master Chief with multiple specifications for violating regulations on sexual harassment and fraternization involving 8 female sailors.  The primary accuser, a junior enlisted sailor, claims the Master Chief groped her and even extorted her by denying her an Air Warfare pin unless she gave him naked pictures and videos of herself.  Mr. Gapasin aggressively cross-examines the sailor and exposes a lack of corroboration with her testimony, as well as multiple inconsistencies and contradictions.  Mr. Gapasin also reveals to the Enlisted Panel the flaws in the forensic evidence presented by the Government.  Panel composed of two Officers and six Master Chiefs acquits client of all Article 120 offenses. RESULT: NOT GUILTY to Article 120 Sexual Offenses, NO Sex Offender Registration, NO Discharge.

 

February 23, 2015, Fort Leonard Wood, Missouri. U.S. v. E-5. Government accuses NCO of illegally possessing and using non-prescribed medication following a company-wide urinalysis.  NCO is adamant that medication was innocently ingested at a wedding.  Mr. Gapasin represents her upon receipt of Article 15, Non-Judicial Punishment paperwork.  Upon the advice of Mr. Gapasin, client turns down NJP and opts for court-martial.  The Government refuses to go to trial and instead issues client a General Officer Memorandum of Reprimand.  Mr. Gapasin responds by serving the command with a rebuttal to the reprimand.  Chain of command decides to file reprimand in her “local” file, thereby not affecting client’s career and allowing her to be promoted.  RESULT: Charges DISMISSED, NO Federal Conviction, NO Discharge.

 

January 30, 2015, Camp Casey, South Korea. U.S. v. E-5. NCO is accused of sexually assaulting a female Soldier and later for committing assault and battery against two other NCOs in the same incident.  NCO adamantly denies sexually assaulting this Soldier despite the statement of an adverse witness.  Mr. Gapasin begins representing him during pending investigation and possible General Court-Martial.  Mr. Gapasin begins an investigation by contacting several witnesses.  Witnesses divulge that the accuser was flirting with Mr. Gapasin’s client the entire night just before the alleged incident.  Mr. Gapasin contacts the OSJA regarding the case.  Within a month, the case against Mr. Gapasin’s client is dropped. RESULT: Charges DISMISSED, NO Federal Conviction, NO Sex Offender Registration.

 

December 3, 2014, Joint Base Elmendorf-Richardson, Anchorage, Alaska. U.S. v. E-4.  The Government prefers charges against Military Police client for wrongful possession of illegal drugs. Client denies the possession of these drugs.  Mr. Gapasin represents her for the court-martial with the intent of going to trial. Mr. Gapasin recognizes several search and seizure violations per the client’s Fourth Amendment rights, and also hones in on a defective chain of custody for the alleged illegal drugs at issue. Following witness interviews prior to trial, Mr. Gapasin also discovers that blood samples from the client not only involved a defective chain of custody, but one of the custodians of the samples knew the test sample was contaminated due to foreign substances. Mr. Gapasin filed motions to the Court addressing these serious legal issues. The Government subsequently dismisses the charges  just days before trial resulting in only minor administrative punishment.  RESULT: Charges DISMISSED Days Before Trial, NO Federal Conviction, NO Discharge. 

 

October 30, 2014, Kaiserslautern, Germany. U.S. v. E-6.  The client, an NCO military police dog handler and kennel master, was accused of sexual assault by one of his Privates. This Staff Sergeant denied the accusations in this “he said, she said” case and retained Mr. Gapasin to represent him. Charges preferred against the client involved allegations of maltreatment, sexual harassment, indecent acts by exposing himself multiple times and the use of his rank and position to coerce the Private into performing sex acts with him. She claimed the acts occurred when she and the client were alone in a Government vehicle for approximately five hours during a mission returning dogs to a kennel. Mr. Gapasin vigorously cross-examined the alleged victim exposing a number of lies in her testimony at trial and in her prior testimony at the Article 32 hearing. Panel acquitted Mr. Gapasin’s client of all serious charges including the Article 120 charge.  RESULT: NOT GUILTY of Sexual Assault, NO Sex Offender Registration, NO Discharge, NO Confinement.  

 

September 18, 2014, Kaiserslautern, Germany. U.S. v. E-7. NCO with 25 years of military service is charged with committing assault and battery against his estranged spouse. Government also prefers charges for drunk and disorderly conduct. NCO faces the loss of his retirement. At the court-martial, Mr. Gapasin aggressively cross-examines client’s estranged spouse who fully recants from the stand and admits to fabricating allegations that NCO husband choked her in order to escape the marriage. Cross-examination also revealed that the estranged spouse was involved in an illicit affair at the time. Mr. Gapasin further cross-examines the military police from the scene revealing a lack of physical evidence contrary to the bruises they claimed to see on her neck.  RESULT: NOT GUILTY of ALL Charges and Specifications, NO Federal Conviction, Client allowed to retire after 25 years of service.

 

September 10, 2014, Camp Lemonnier, Djbouti, U.S. v. E-7.  NCO becomes subject to numerous allegations of hazing, abuse of authority, unethical treatment and maltreatment while deployed to Camp Lemonnier, Djibouti.  The Government accuses NCO of forcing his Soldiers to purchase him alcohol in violation of General Order No. 1, of using excessive force during combatives, and of general “roughhousing” and maltreatment of his Soldiers.  NCO denies these allegations.  Following their own investigation, Mr. Gapasin and his client discover that many of the Soldiers begin retracting their original statements made to investigators.  Mr. Gapasin informs the Government representatives that the Defense intends on aggressively pursuing a full acquittal of all accusations.  The Government subsequently withdraws its pursuit of a court-martial and instead proceeds with non-judicial punishment. RESULT: NO Prosecution, Non-Judicial Punishment resulting in minimal punishment, NO Reduction In Rank, NO Discharge.

 

August 27, 2014, Utah National Guard, Riverton, Utah. U.S. v. O-2.  Lieutenant in the Army National Guard is accused by a female Officer of sexual assault from a year prior when they were both in a Military Police Basic Officer Leader’s course. The female Officer accused the Lieutenant of sexually assaulting her when she was under the influence of alcohol during a study session between the two of them. The Lieutenant denied these accusations and retained Mr. Gapasin to represent him. Gapasin aggressively sought to have these charges dismissed and immediately had the client undergo a private polygraph examination. Client passed the polygraph and Gapasin notified his chain of command. Client also submitted the results of the polygraph to his chain of command and aggressively argued for the dismissal of all charges based on a lack of credibility of the alleged victim as well as her counterintuitive behavior. RESULT: Charges DISMISSED, NO Federal Conviction, NO Sex Offender Registration.

 

July 24, 2014, Fort Hood, Texas. U.S. v. E-7. NCO with over 20 years of service is accused by another female NCO of abusive sexual contact immediately following a hail and farewell. NCO gave a statement to law enforcement and did confess to possibly touching the female NCO in a sexual manner, but claimed that it was accidental. Based on this statement, law enforcement intensified its investigation. As a result, Mr. Gapasin contacts accused’s chain of command and contends that client is not guilty of abusive sexual contact. RESULT: Charges DISMISSED, NO Federal Conviction, NO Sex Offender Registration, Client allowed to retire after 20 years of service.

 

June 26, 2014, Fort Leonard Wood, Missouri. U.S. v. E-6. NCO is charged with two specifications of abusive sexual contact, two specifications of indecent acts, and two specifications of maltreatment. Alleged victim is an E-3 Private First Class who accuses the NCO of committing these crimes at various locations, to include a popular off-post bar, outside her barracks, and behind a local movie theater where the NCO allegedly drove them to proposition her for sex. NCO denied accusations from the beginning and retained Mr. Gapasin to represent him. Gapasin aggressively cross-examines the alleged victim at trial revealing inconsistent versions of what she claims occurred. Following an extensive discovery process, Gapasin calls witnesses to the stand who contradict the PFC’s testimony. RESULT: NOT GUILTY of ALL Charges and Specifications, NO Federal Conviction, NO Sex Offender Registration.

 

June 19, 2014, Aviano Air Base, Aviano, Italy. U.S. v. O-1. Officer is charged with three specifications of assault on other Air Force CGOs as well as disorderly conduct and conduct unbecoming an officer and a gentlemen. The accusations stem from alcohol-related incidents in Italy and Pag, Croatia. Officer denies accusations and Mr. Gapasin represents this young officer in a very heated General Court-Martial trial. At trial, Gapasin aggressively cross-examines several CGOs, labeling this “work hard, play hard,” clique of officers as “The Brat Pack.” Gapasin reveals a lack of corroboration in the CGOs testimony as well as blatant lying under oath. Gapasin exposes this group of officers who were unwilling to be accountable for their irresponsible, alcohol-induced conduct. RESULT: NOT GUILTY of ALL Charges and Specifications, NO Federal Conviction.

 

June 11, 2014, Redstone Arsenal, Huntsville, Alabama. U.S. v. O-3. JAG Captain (O-3) is accused of fraternization and three allegations of false official statement. She is accused of malingering and falsifying her condition to obtain medical benefits upon retirement as she had already received orders for a medical separation. Her Staff Judge Advocate (SJA) and Deputy Staff Judge Advocate (DSJA) push for her involuntary separation thereby denying her medical benefits upon discharge.  Mr. Gapasin represents this JAG Officer at the Board of Inquiry and aggressively cross-examines the top JAG on the installation who is the Staff Judge Advocate (SJA) and many other Government witnesses revealing a toxic leadership and a lack of credibility. The board lasts approximately 17 hours and issues its Findings at 0200 in the morning. RESULT: FULLY RETAINED. Client to receive ALL medical benefits.

 

May 22, 2014, Fort Lee, Virginia. U.S. v. E-1. Soldier is accused of committing abusive sexual contact under Article 120 of the UCMJ on a Soldier in Basic Combat Training and another Soldier in Advanced Individual Training. The accused is also charged with committing assault and battery on another Soldier during a field training exercise at night. Facing six (6) specifications charged against him, the accused Soldier maintains his innocence. Gapasin cross-examines these Government witnesses effectively revealing that his client was the subject of constant demeaning bullying by those alleged victims. Through aggressive questioning, Gapasin exposes the lack of credibility of his client’s accusers. RESULT: NOT GUILTY of ALL Charges and Specifications. NO Sex Offender Registration. NO Federal Conviction.

 

April 18, 2014, USAG Grafenwoehr, Germany. U.S. v. E-4. Accused Soldier is charged with 15 specifications of domestic violence against his wife and children. Specifications include assault and battery, communicating a threat, obstruction of justice, and even DUI. Government attempts to intimidate the accused informing him that it intends to pursue confinement of over 10 years. Mr. Gapasin conducts extensive investigation and becomes aware of serious misrepresentations made by the accused’s estranged wife. Gapasin advises client against the Government’s offers to plead guilty and to agree to serious confinement. Following the Article 32 hearing, and in exchange for an involuntary separation, the Government agreed to dismiss all charges and specifications. RESULT: ALL Charges Dismissed. NO Confinement. NO Federal Conviction.

 

February 14, 2014, Kirtland Air Force Base, Bernalillo, New Mexico. U.S. v. O-4. Major is accused of committing sexual assault during an officer training course. Major denies allegations from the beginning but faces sex offender registration.  Mr. Gapasin proactively engages in steps for immediate dismissal of case. Mr. Gapasin’s investigators discover several facts in the background of the alleged victim that reveal motives to fabricate false rape allegations. Mr. Gapasin’s appointed polygrapher found no deception and the Major passes private polygraph. Mr. Gapasin submits the results of the investigation and the private polygraph to Major’s chain of command and law enforcement. The Government subsequently declines to prosecute. RESULT: ALL Charges Dismissed. NO Sex Offender Registration. NO Federal Conviction.

 

January 22, 2014, Marine Corps Support Facility, New Orleans, Louisiana. U.S. v. E-3. Lance Corporal is charged with sexual assault and assault and battery of a Sergeant E-5. Lance Corporal is also charged with violating a lawful regulation by engaging in an inappropriate relationship. Lance Corporal faces registration as a sex offender. He also gives a videotaped statement to NCIS.  Mr. Gapasin aggressively requests certain discovery items, i.e., mental health records of the alleged victim and a diary of hers discovered 2 weeks before trial. Following Mr. Gapasin’s persistent discovery requests and within 2 weeks of trial, alleged victim declines to participate in court-martial. RESULT: ALL Charges and Specifications Dismissed and Withdrawn. NO Sex Offender Registration. NO Federal Conviction.

 

January 17, 2014, Fort Belvoir, Maryland. U.S. v. WO2. Chief Warrant Officer with 19 years of active duty service is charged in General Court-Martial with 13 specifications involving allegations of sexual harassment and registerable sex offenses to include charges for wrongful sexual contact and sexual assault.  Mr. Gapasin cross-examines all 6 female accusers at the Article 32 hearing. Following the Article 32, two of the sex assault charges with a combined 60 years maximum confinement and a dishonorable discharge are dismissed. Two sex offender registerable offenses remained for trial. Mr. Gapasin proceeds to trial on remaining specifications and client is found Not Guilty of the remaining registerable offenses. Though found guilty of other less serious offenses, Accused receives minimal punishment and is retained. RESULT: NOT GUILTY to ALL Sex Assault Charges. NO Sex Offender Registration. NO Dismissal.

 

December 12, 2013, USCG Base Boston, Boston, Massachusetts. U.S. v. E-8. Senior Enlisted Member of Coast Guard with over 24 years of service is prosecuted for false official statement and three specifications of perjury. Charges stem from prior testimony and statements regarding accusations of illegally possessing an assault rifle in violation of strict Massachusetts gun laws. Charges also stem from accusations of reckless endangerment of minor child and disobeying base orders regarding gun registration requirements. High-profile case due to accusations made just days before Sandy Hook massacre in December 2012.  Mr. Gapasin files aggressive motions based on the Defense position of a Vindictive Prosecution and the existence of Unlawful Command Influence. Mr. Gapasin takes case to trial and the client is found Not Guilty of all charges and specifications. RESULT: NOT GUILTY Of All Charges And Specifications.

 

November 27, 2013, Fort Rucker, Alabama. U.S. v. O-3. Officer is accused of abusive sexual contact of female Soldier along with other allegations of conduct unbecoming an Officer and fraternization. Officer denies the allegations. With Mr. Gapasin as counsel, Officer obtains minimal NJP punishment. Government subsequently proceeds to initiate show cause board to separate Officer but Officer requests an Honorable discharge rather than proceed with the Show Cause Board. Mr. Gapasin obtains Honorable Discharge on behalf of his client. RESULT: NO Federal Conviction. NO Sex Offender Registration. Receives HONORABLE Discharge.

 

September 26, 2013, Naval Station Norfolk, Norfolk, Virginia. U.S. v. E-4. Sailor is accused of sexual assault of female sailor. NCIS interrogates accused who gives a statement of the incident in question. Sailor maintains innocence as he has from the beginning. Following intrusive and long investigation, Government declines to prosecute. RESULT: Charges DISMISSED.

 

September 19, 2013, US Coast Guard, District 7, Miami, Florida. U.S. v. E-3. Member of Coast Guard is accused of committing several acts of false official statement alleging he lied about his physical and mental condition to illegally obtain medical benefits.  Mr. Gapasin aggressively pursues taking case to trial with intent of obtaining full acquittal. Three days before trial, the Government relents and requests a continuance. The Court grants the continuance and one month later, all charges and specifications are dismissed with prejudice and Mr. Gapasin obtains an Honorable Discharge on behalf of his client. RESULT: Charges DISMISSED. NO Federal Conviction. Receives HONORABLE Discharge.

 

August 7, 2013, Naval Station Norfolk, Norfolk, Virginia. U.S. v. E-4. Sailor is accused of malingering under Article 115 and intentionally injuring himself to avoid deployment. Sailor strongly denied the allegations from the very beginning the accusations began. Navy prosecutors initiate Captain’s Mast against the Sailor.  After assessing the facts, Mr. Gapasin advises Sailor to turn down mast, which he does and opts for court-martial. Government then initiates a summary court-martial. Again after assessing the facts, Gapasin advises his client to turn down the summary court-martial and again, request trial.  This is what Sailor does.  He turns down summary court-martial and opts for trial by Special Court-Martial. Government responds by dismissing charges without prejudice. RESULT: Charges Dismissed. NO Federal Conviction.

 

July 15, 2013, Fort Wainwright, Alaska. U.S. v. E-4. Soldier is accused of possession and distribution of child pornography. Government maintained that the Soldier gave a confession to the illegal downloading and possession of mulitple images.  Mr. Gapasin begins preparing for trial. Subsequently, despite prosecutors strong position to prefer charges under Article 120 based on supposed “confession,” prosecutors do not prefer charges. Instead, prosecutors pursue lesser level of disposition and Soldier receives non-judicial punishment for violations under General Order #1. RESULT: NO Sex Offender Registration, NO Federal Conviction, NO Discharge.

 

June 3, 2013, Fort Carson, Colorado. U.S. v. E-4. Soldier is accused of assault and battery, assault with a deadly weapon and disrespect of an NCO. Command presumes him guilty without considering the statements of a witness present at the scene of the incident. Client maintains from the beginning he was engaged in self-defense from an aggressive NCO. Unit on the verge of preferring charges against Soldier. Afterwards, the unit declines to prosecute and Soldier follows through on original plan to leave the Army. Refusal to prosecute allows Soldier his opportunity to leave the Army with Honorable characterization of discharge. RESULT: Charges Dismissed. Honorable Characterization of Discharge.

 

May 3, 2013, Naval Support Activity, Bahrain. U.S. v. E-6. Sailor with over 10 years is accused of disrespect of an Officer and assault against another Sailor in an alleged altercation at the base gate. Command rushes to judgment and seeks to court-martial with the aim of discharging her from the Navy.  Within days of retaining Mr. Gapasin, and after Gapasin engages with the Government prosecutors, the unit dismisses the charges thereby allowing her to PCS to her next duty assignment. RESULT: Charges Dismissed.

 

April 21, 2013, Minnesota National Guard, St. Paul, Minnesota. U.S. v. E-7. Soldier with 14 years is accused of six specifications of maltreatment against NCOs and junior enlisted Soldiers. The maltreatment alleged included repeatedly dragging a blade across the face of another NCO, assault and battery, and hazing. Soldier was also charged with failing to obey a lawful general regulation by engaging in gender discrimination and offensive behavior. Mr. Gapasin aggressively cross-examines the Government witnesses making these allegations against this NCO known to be a hard-charger and “by the book” leader. Mr. Gapasin takes case to trial and the client is fully acquitted of all charges and specifications. RESULT: NOT GUILTY of All Charges and Specifications.

 

April 15, 2013, Fort Polk, Louisiana. U.S. v. O-3. Officer is charged with 29 specifications under the UCMJ and faces life imprisonment for alleged violence and sexual assaults against girlfriend. Mr. Gapasin who takes case to trial and client is acquitted of multiple specifications for the following offenses: attempt murder, rape, kidnapping, stalking and a majority of the assault and battery allegations. Though found guilty of additional minor offenses, e.g., military-specific offenses, client avoids life in prison as well as sex offender registration. Client to serve minimal confinement due to successful motion resulting in confinement credit of over 600 days. RESULT: Acquitted of Both Specifications of Attempt Murder. Acquitted of all Rape Charges. NO Sex Offender Registration.

 

March 14, 2013, Fort Riley, Kansas. U.S. v. E-5. Soldier is accused of sexual assault of a child under the age of 12 and several specifications of indecent acts against a minor.  Mr. Gapasin begins representing this Soldier at the Article 32 hearing. Mr. Gapasin aggressively cross-examines the estranged spouse as well as the alleged victims to reveal false accusations of sexual assault against the client in order to benefit from pending court-ordered financial support. Cross-examination by Mr. Gapasin also revealed that false accusations were made in order to affect child custody orders. The Article 32 Investigating Officer recommended dismissal of all charges and their specifications, and the Convening Authority agreed. All charges were subsequently dismissed. RESULT: Dismissal of All Charges After Article 32 Hearing.

 

January 11, 2013, Fort Leonard Wood, Missouri. Army O-3 Admin Separation Board. Army Captain facing separation for alleged General Order violation while deployed to Afghanistan for drinking alcohol. Also facing separation for allegedly being AWOL from his unit. Mr. Gapasin represents officer client before board composed of O-6 President and O-5 Members. After deliberations, board issues findings and fully retains client. RESULT: Client Retained.

 

January 8, 2013, Fort Benning, Columbus, Georgia. U.S. v. E-7. Soldier instructor is accused of sexually assaulting three different female trainees at Airborne School. Mr. Gapasin takes case to trial and aggressively cross-examines the female trainees on the stand. The client is acquitted of all sexual assault charges against each of the three female accusers and avoids sex offender registration. RESULT: NOT GUILTY to All Sex Assault Charges. NO Sex Offender Registration.

 

December 10, 2012, U.S. v. E-3., Naval Base Norfolk, Norfolk, Virginia. Sailor is accused of rape of estranged spouse. He is also accused of aggravated assault and communicating deadly threats. Mr. Gapasin begins representing this Sailor during the investigation stage and before the preferral of charges. Mr. Gapasin communicates with NCIS agents involved in the sloppy investigation of the sailor and exposes a lack of credibility of the estranged spouse. United States does not move forward and the case is subsequently dismissed. RESULT: Dismissal of All Charges.

 

November 8, 2012, United States Air Force, RAF Lakenheath, United Kingdom. U.S. v. O-3: Air Force officer charged with abusive sexual contact, stalking, aggravated assault. Media coverage by Air Force Times due to sexual offense allegations of this accused flier. Also one of the first contested Air Force trials involving newly legislated sexual assault laws under UCMJ Article 120. Mr. Gapasin takes case to trial and the client is acquitted of all serious charges, including sexual offense, and multiple stalking and aggravated assault charges. The officer panel retains this Airman with 18 years of service. RESULT: NOT GUILTY of All Major Offenses. NOT GUILTY of Sex Assault Charges. NO Sex Offender Registration. NO Discharge.

 

October 18, 2012, United States Army, Camp Humphrey, South Korea. U.S. v. E-3: Soldier accused of assaulting four Korean males and committing false official statement, disrespect of an NCO. Mr. Gapasin is retained by Soldier to defend him against non-judicial punishment and possible court-martial. Soldier is prepared to opt for court-martial rather than proceed with non-judicial punishment. United States does not move forward. RESULT: Case Dismissed.

 

September 25, 2012, United States Army, Fort Carson, Colorado Springs, Colorado. U.S. v. O-3: Army officer charged with wrongful sexual contact and assault and battery. Media coverage by Army Times, Stars and Stripes, and local papers due to allegations of hazing against the client and misuse of alcohol at officer function. Mr. Gapasin takes case to trial and the client is acquitted of the sexual offenses and assault and battery. The officer panel retains this Soldier with 15 years of service. RESULT: NOT GUILTY of Sex Assault Offenses. NO Sex Offender Registration. NO Discharge. At subsequent separation board, Officer FULLY RETAINED.

 

August 21, 2012, United States Air Force, Davis-Monthan Air Force Base, Tucson, Arizona. U.S. v. E-1: Airman charged with serious sex offenses punishable by up to life in prison. Mr. Gapasin takes case to Article 32 hearing and the Investigating Officer recommends dismissal of these charges. As a result, the United States does not pursue and the charges are dropped. RESULT: Dismissal of Serious Sex Assault Charges after the Article 32 Hearing.

 

Other Past Cases Include:

 

Represented service member alleged to have committed war crimes in Afghanistan, to include the alleged murder of several Afghan citizens during military operations. Several members of the unit out of Joint Base Lewis-McChord were charged with multiple drug offenses and murder. CNN Special Investigations specifically referred to Mr. Gapasin with regards to CNN’s investigation of certain participants in these war crimes. Mr. Gapasin obtained testimonial immunity on behalf of his client and he was cleared of all charges and allegations.

 

Represented service member alleged to have sexually assaulted a foreign national female on Okinawa. Court-Martial resulted in numerous protests on the island and received international media attention. Mr. Gapasin won dismissal of all rape charges.

 

Represented service member charged with the stabbing of an alleged victim during a gang fight in Itaewon, just outside of Yongsan Garrison in Seoul, South Korea. Testimony at trial and a video tape revealed that he did not stab the alleged victim. Mr. Gapasin obtained a full acquittal on behalf of his client.

 

Represented service member alleged to have committed forcible rape in the barracks. Pre-trial investigation at the Article 32 hearing revealed that alleged victim incurred serious mental health disorders after she was supposedly sexual assaulted as a teenager. Mr. Gapasin obtained a Chapter 10 discharge allowing his client to avoid sex offender registration.

 

Represented service member charged with negligent homicide after alleged use of prescribed fentanyl patches with another member of his unit who then succumbed to an overdose. Mr. Gapasin obtained a light sentence of less than four months confinement on behalf of his client.

 

Represented service member alleged to have physically assaulted a gay officer at a formal military ball. The Huffington Post wrote that this was the first reported incident of discrimination since the official repeal of the “Don’t Ask, Don’t Tell” military policy regarding sexual orientation. Mr. Gapasin fought and client received nothing more than a letter of reprimand.

 

Represented service member charged with aggravated assault with intent to cause grievous bodily injury. Testimony revealed poor leadership by service member’s NCO was a leading cause of a barracks scuffle. Mr. Gapasin obtained a light sentence on behalf of his client. Interestingly, because of Mr. Gapasin’s aggressive cross-examination of his client’s NCO at trial, the NCO subsequently received an Article 15.

 

Represented service member charged with involuntary manslaughter and negligent homicide after HEMMT he was driving crossed the center line of a road on post and collided with a ciivilian vehicle. Mr. Gapasin’s client was found not guilty of involuntary manslaughter which carried a punishment of dishonorable discharge, forfeiture of all pay and allowances and up to 10 years confinement.

 

Represented service member Drill Sergeant alleged to have maintained inappropriate relationships. The service member received a light punishment. However, the unit attempted to separate him while the service member was pending a medical board. Mr. Gapasin represented the service member at the separation board and successfully fought for his retention. Mr. Gapasin successfully retained his client after a fully litigated court-martial. Then Mr. Gapasin successfully retained his client at a subsequent separation board allowing the client successfully kept his medical board benefits due to PTSD following 5 deployments to Iraq.

 

U.S. vs. E-7. Faulty DNA Sampling and Lying Rape Victim. Attacking the DNA, Thorough Pre-Trial Investigation, and Cross Examination of Victim Results in Full Acquittal of All Charges and Specifications (2011).

Mr. Gapasin’s client was charged with four specifications for forcible rape and adultery. He was accused of aggravated sexual assault against a female E-3 who was allegedly substantially incapacitated due to alcohol. Under cross-examination at the Article 32Hearing, the alleged victim admitted that she could only identify her attacker because she recognized his voice. Based on the evidence, my client was a possible contributor to a small sample of foreign DNA found from a rectal swab of the purported victim. It was later discovered that the DNA was based on skin cells. Semen from the anal swabs also showed no sperm to identify the semen. The incident in question allegedly occurred at his home in the early morning hours of an after party. Semen from another male who she admitted to having had sex with at the party was found on vaginal swabs. A number of facts on cross-examination at trial illustrated the alleged victim’s lack of credibility. The alleged victim’s testimony went uncorroborated. For example, her mother testified that her daughter was crying on the phone at 0700 and her daughter had to hang up because she could not talk and drive at the same time. But the alleged victim testified she was raped in the early morning hours before the sun came up at 0630because it was too dark to physically identify her attacker. Moreover, several witnesses testified that at no time was the accused in the room with the alleged victim. In an incredible turn of events and thanks to aggressive pre-trial investigation, Mr. Gapasin discovered that the alleged victim actually robbed the client a couple days after he allegedly raped her. Mr. Gapasin also discovered that the alleged victim had a motive to make false allegations against the client because she believed it was his fault for turningin her former ex-marine boyfriend to law enforcement for a DUI that left a pedestrian dead. Mr. Gapasin’s client was fully acquitted of all rape charges, and the alleged victim was prosecuted by the State for burglary.

 

U.S. vs. O-1. Cross-Examination of Assault Victim Reveals His Drunken State and Exaggeration of What Happened. Cross-Examination Results in Full Acquittal of All Charges and Specifications (2011).

Mr. Gapasin’s client, a Second Lieutenant Military Policeman, was charged with physically assaulting another Second Lieutenant from his Basic Officer Leadership Course (BOLC). The two were on a vacation in Las Vegas with the client’s family. Mr. Gapasin’s client was also charged with conduct unbecoming for failing to pay a gambling debt to the alleged officer-victim as well as for drunk and disorderly conduct. The drunk and disorderly conduct was eventually dismissed following the Article 32 Hearing, where Mr. Gapasin elicited testimony by the alleged officer-victim at cross-examination that his client was not acting drunk or disorderly in any way. At trial, Mr. Gapasin cross-examined the Second Lieutenant who claimed to have been cheated out of a $700 roulette bet that he claimed was a loan to the client. Mr. Gapasin attacked the victim’s credibility and revealed how intoxicated the victim was on the night in question and how his version of the facts did not follow the timeline, nor was it corroborated by any other testimony that was elicited. Mr. Gapasin also illustrated to the Officer Panel how the victim embellished and exaggerated his testimony. Mr. Gapasin also exposed the victim’s lack of credibility and untruthfulness during his cross-examination of the victim and his pending BAH fraud investigation. Mr. Gapasin fully prepared his client to take the stand, which the client did at the end of the defense case. As a result of the hard work of Mr. Gapasin and Captain Alyson Mortier, the Officer Panel Fully Acquitted the client of All Charges and Specifications.

 

U.S. v. O-1. Black-Outs After Drinking. Cross-Examination of Rape Victim Reveals Lies and Inconsistencies Resulting in Acquittal of All Rape Charges (2011).

Mr. Gapasin’s client was charged with three specifications under Article 120 for aggravated sexual assault, abusive sexual contact, and wrongful sexual contact. He was also charged with one specification under Article 125 for forcible sodomy, and one specification under Article 134 for fraternization. Mr. Gapasin’s client was an Active Guard Reserve officer. The alleged victim was a 24-year-old female who had been an E-5 in the select reserves. After a dinner date, they returned to the client’s house where she was at from 2000 – 0130. She alleged that she had blacked out approximately four times after their date. During intermittent periods of consciousness, she believed theclient sexually assaulted her. DNA testing did result in positive findings of my client’s saliva or epithelial cells from vaginal swab of the alleged victim. After extensive preparation with Mr. Gapasin, the client took the stand and testified to having consensual sexual activity. He testified that he did not act against the alleged victim’s will. Mr. Gapasin’s cross-examination of the alleged victim revealed lies and inconsistencies. After a full hearing on the merits, the officer panel found him Not Guilty of all of the Article 120 offenses, and of the Article 125 offense.

 

U.S. vs. E-3. Thorough Pre-Trial Investigation Reveals Pre-Existing Condition of Injured Infant Child. This Results in Dismissal of “Shaken BabyCharges (2009).

Mr. Gapasin’s client was charged with specifications for aggravated assault with the intent to inflict grievous bodily harm and to maim his five-month old infant daughter. He was also charged with specifications for absence without leave, false official statement, assault and battery upon his spouse, and two specifications for communicating a threat. Prosecutors tried to push the Article 32 Hearing forward without affording the Defense sufficient time to conduct any investigation into this very complicated case. Mr. Gapasin aggressively pursued a delay of approximately 3 weeks in order to allow the defense time to acquire an expert pediatric neurologist to help prepare for the Article 32. After much argument from both sides, the Article 32 Investigating Officer granted the Defense request to delay, and the Battalion Commander granted the Defense request to have an expert pediatric neurologist appointed to the defense team pre-Article 32. After extensive preparation with its expert, the Defense aggressively litigated the Article 32, and the Investigating Officer recommended dismissal of all charges and their specifications. As to the “shaken baby” allegations, evidence was elicited at the hearing that the child had a pre-existing condition that resulted in a type of “brittle bone” disease. This information would not have been discovered without having had the expert appointed for the Article 32 hearing.

 

U.S. vs. E-5. Abusive Husband alleges Assault with Handgun. Thorough Preparation of Client’s Case Reveals Husband’s History of Domestic Violence. Solid Pre-Trial Investigation and Cross-Examination of Husband-Victim Results in Full Acquittal of All Charges and Specifications (2010).

Mr. Gapasin’s client was charged with assault consummated by battery and aggravated assault with a loaded firearm. Ever since the investigation began, Mr. Gapasin’s client maintained that she acted in self-defense against her then-husband, the alleged victim. Both were Non-Commissioned Officers. Through pre-trial investigation, Mr. Gapasin and military counsel, Captain Alyson Mortier, learned that two years earlier in Iraq, the alleged husband-victim threatened his ex-wife (not Mr. Gapasin’s client) and another Soldier. This ex-wife was also forced to defend herself against him. Even in that incident, the client’s husband avoided trouble by portraying himself as the victim. At trial, Mr. Gapasin cross-examined the husband-victim and a county police officer. Both accused Mr. Gapasin’s client of pointing a loaded handgun at her husband. Prosecutors argued that Mr. Gapasin’s client was angry at her husband for ignoring her advances that night while she was in sexy lingerie, and for her husband’s flirting with other women. After extensive preparation with Mr. Gapasin, the client took the witness stand andtestified why she believed she needed a firearm to defend herself. The defense was also able to explain to the panel why the client re-entered the home with the handgun when she could have run away. The prosecutors failed to prove that Mr. Gapasin’s client did not act in self-defense. The officer panel found Mr. Gapasin’s client Not Guilty of all charges and specifications.

 

U.S. vs. E-4. Nobody Interrogates the Babysitter. “Shaken Baby” Allegations Dismissed after Aggressive Defense at Article 32 Hearing (2010).

Mr. Gapasin’s client was charged with Article 128 and Article 134, UCMJ, regarding an injury his daughter sustained while in the care of a babysitter on 28 November 2009. The CID file and medical information all indicated that the injury could only have occurred during the eight hour period when the infant was in the custody of the babysitter; however, CID insisted that neither the civilian babysitter, nor the civilian wife could have possibly harmed the child, even though Mr. Gapasin’s client was in contact with her for only 15 to 35 minutes. A report by the leading Child Abuse expert in the Military indicated that any previous injuries to the child were accidental, exceptfor the broken femur sustained. Medical personnel opined it could only have occurred during the eight hour period that the child was in the custody of the babysitter. The expert’s report also indicated that the child was born with toxoplasmosis, a rare disease that affects neurological, ophthalmological, and bone density development. The Article 32 Hearing involved conflicting testimony from most of the CID agents involved, and we were able to show that CID never considered the babysitter a suspect solely because she is a civilian. Under cross-examination by Mr. Gapasin, the agents always considered my client a suspect but failed to read him his rights before obtaining sworn statements from him. Mr. Gapasin also elicited testimony how one of the agents had engaged in a pattern of “doctoring” CID reports. The Investigating Officer recommended dismissal of all charges. Based on this recommendation, the case against Mr. Gapasin’s client was dismissed without prejudice.

 

U.S. v. E-6. Estranged Wife Accuses Military Policeman of Domestic Violence, Possessing and Viewing Child Pornography, and Molesting her Twelve-Year Old Daughter. Aggressive, Solid Defense Results in Full Acquittal of All Charges and Specifications (2010).

Mr. Gapasin’s client was an MP stationed at Camp Zama, Japan who was charged with two specifications of indecent acts against his twelve-year old daughter, and two specifications for the use and possession of child pornography on his home computer. His estranged wife, also an NCO, made all accusations. Just days before trial, Mr. Gapasin’s client was offered a Chapter 10 with a General, Under Honorable Conditions Discharge. A Chapter 10 is a type of discharge that occurs in lieu of going to court-martial. After speaking with Mr. Gapasin and co-counsel Mr. Timothy Bilecki, the client turned down the Chapter 10 and opted instead to go to trial, thereby risking a possible guilty finding that could result in over 15 years of confinement and sex offender registration. A 5-day trial ensued. Mr. Gapasin and Mr. Bilecki exposed considerable flaws in the prosecutor’s investigation on how the alleged child pornography was downloaded. Mr. Gapasin cross-examined the daughter, eliciting evidence that the alleged 12-year old victim daughter clearly lied in accusing Mr. Gapasin’s client of molesting her. The evidence pointed to her clear motives to lie and ruin the client’s career because her mother brainwashed her. Mr. Gapasin and Mr. Bilecki argued that the mother did this so she could win custody of their daughter after a pending divorce. After five days of heated litigation, the Court found the client Not Guilty of All Charges and Specifications.

 

U.S. vs. O-3. Special Forces Unit Wrongfully Accuse Their Own Soldier and Instead Takes Sides With Untruthful Wife. Defense Never Quits. Full Acquittal of Seventeen (17) Specifications (2010).

Mr. Gapasin’s client was a soldier with First Special Forces (Airborne) based out of Okinawa, Japan. He was a team leader who was charged with 17 specifications under the UCMJ: three specifications for willfully disobeying orders; failing to pay BAH to his spouse who he is separated from; failing to obey orders to sign in with the staff duty officer; disobeying a lawful order by possessing a fixed-blade knife with a blade longer than three inches (although he was charged with this, most of the Soldiers in Special Forces had fixed-blade knives with blades longer than three inches — including the former XO, who had a knife with a blade longer than three inches placed on his bookshelf behind his office desk); Mr. Gapasin’s client was also charged with two specifications for submitting a false official statement. He was also charged with two specifications under Article 120 for the sexual assault of his estranged spouse; two specifications of aggravated assault; one specification of obstruction of justice; and charged with specifications under Article 133 for allegedly tape-recording a conversation involving his spouse and family members without either party’s consent; also for the wrongful wear of military ribbons and awards, as well as other accusations of physical, verbal, and mental abuse against his spouse. All allegations began when the client’s spouse spoke to a physician at Lester Naval Hospital regarding pain to her vagina and intestines. This physician reported allegations of sexual assault. Testimony after testimony revealed that the unit went overboard with charging Mr. Gapasin’s client. The alleged victim’s testimony was simply not credible, and she clearly embellished and exaggerated. At the end of this five-day trial, the Officer Panel at Camp Zama, Japan found Mr. Gapasin’s client Not Guilty of all Charges and Specifications.

 

U.S. vs. E-6. NCO Charged with BAH Fraud. Thorough Trial Preparation Reveals Minor Miscommunication, Not Blatant Lie. Results in Nothing More than Letter of Reprimand (2011).

Their client was an IRR Soldier who was assigned to HRC-St. Louis. He was charged with BAH fraud because he changed his permanent address/home of record from a former residence in Louisiana, to his mother’s address in Los Angeles after he got divorced and no longer resided in Louisiana. The client was charged under Articles 107, 121, and 132. His former chain of command assisted him in the process, and allowed him a break in service so that he could change his address and be in compliance with the regulations. A new chain of command took over and noticed that his address in Los Angeles was a business address. They questioned him and the client showed them his lease agreement between his mother’s husband and himself, and explained that he was using his mother’s business address for mail, which was easier for her. Defense viewed this case as a reserve issue with no DFAS input, and the Defense did not want to give the Government time to perfect its case. Therefore, Defense did not object to the Government’s immediate request for trial. The active-component trial counsel did not understand the reserve issues regarding the purposes, requirements and methods for updating addresses, and reserve component mobilizations and releases from active duty. Ultimately, the Government could not overcome the fact that DFAS never notified my client or his chain of command that he had done anything wrong. The client was convicted of false official statement. On sentencing, Mr. Gapasin argued that his client’s UCMJ orders were not drafted pursuant to AR 27-10 to allow for confinement. This was a strategic move made just prior to the Court’s sentence of the client. Mr. Gapasin and military counsel, Captain Krista Carpenter, essentially argued that the Court did not have the authority to sentence the client. Although the judge disagreed and ruled that Mr. Gapasin’s client had been properly extended for UCMJ purposes, the Court only sentenced Mr. Gapasin’s client to a letter of reprimand.

 

U.S. vs. E-7. Child Pornography Case. Mr. Gapasin Exposes Unethical Conduct by Military Law Enforcement. Mr. Gapasin Fights Relentlessly Allowing Client to Successfully Retire as an E-6 after 22 Years Of Dedicated Military Service (2011).

Charges were preferred against Mr. Gapasin’s client for soliciting, distributing, receiving, and possessing images and videos of child pornography. The client possessed at least 625 images and videos of child pornography within a period of 6 months. Also, Mr. Gapasin’s client distributed at least 227 images and videos of child pornography toother individuals and received images and videos of child pornography from other individuals. The client also made and published notices and advertisements through Giga Tribe chats and emails seeking and offering to receive, exchange, distribute, and reproduce visual depictions of minors engaging in sexually explicit conduct. The clientalso possessed 3,979 images and videos of “child erotica.” Through cross-examination at the Article 32 Hearing, Mr. Gapasin exposed how the lead CID agent modified the Agent’s Investigation Report (AIRs) in order to hide from the defense a problem withthe chain of custody to crucial evidence. Mr. Gapasin elicited testimony by this agent that he had modified the AIR to reflect an “unbroken” chain of custody of the evidence.Under cross-examination, the CID agent admitted he knew that the Defense would review the AIRs. Defense used this clear violation as a means to reach an acceptable deal. The client had previously provided CID with two incriminating sworn statements as well as a consent to search all of his personal hard drives. The court rendered an adjudged sentence of 6 months confinement and reduction to E-4. Mr. Gapasin did not quit there, and fought hard for clemency. Mr. Gapasin prepared a solid clemency case to the Convening Authority. The Convening Authority reinstated Mr. Gapasin’s client to E-6, allowing him to retire after a 22 year career.

 

U.S. vs. E-5. Enlisted Panel Believes the Client, Not Law Enforcement. Never Say Die Attitude by Defense Lawyers Results in Acquittal of Sex Assault Charges (2010).

Mr. Gapasin’s client was charged with three specifications of sexual assault against three separate purported victims. The client was also charged with one specification of aggravated assault, and one specification of false official statement. The case was preferred in September 2008, but did not go to trial until October 2010. Approximately two months before the trial, a fourth charge of rape was preferred regarding a fourth Private. This fourth charge for rape was not included in the referral of the charges for the prior three allegations. Despite the client’s three sworn statements to military law enforcement wherein the statements included considerable detail about the alleged sexual assaults, e.g., pressing his hand against one of the Private’s mouths, the Defense advised the client to take the stand and testify in order to clarify what he actually said versus what law enforcement typed down. The client contested the wording of the sworn statements as well as the testimony of his three accusers. Mr. Gapasin’s client was found Not Guilty of all three sex assault charges, thus saving him from registering as a sex offender. The court-martial took over two years from preferral to trial, and included video depositions at Fort Carson, and two Article 32 hearings in Korea. Because Mr. Gapasin and co-counsel Mr. Frank Spinner fought hard on the client’s behalf, he was able to move on to civilian life without registering as a sex offender.

 

U.S. vs. E-5. Cross-Examination of Sexual Assault Nurse Examiner (SANE) Reveals Non-Credible Evidence of Bruising Due to Assault. Results in Sergeant Cleared of Sexual Assault, Gets No Punishment (2009).

Mr. Gapasin’s client was charged with one specification of rape, one specification of aggravated sexual assault and one specification of false official statement. The sexual assault charge stemmed from a sexual encounter the client had with a female Soldier at Camp Zama, Japan in 2008. The second sexual assault charge stemmed from a sexual encounter he had with a different female Soldier at Camp Zama, Japan in mid 2009. In both instances, Mr. Gapasin’s client is alleged to have gone to the Camp Zama Club (an on post entertainment facility) with the females and later engaged in sexual acts with them against their will. The client already received an Article 15 for the first charge back in early 2008; however, prosecutors re-charged the same offense to paint the client as a serial rapist. In the second charge, Mr. Gapasin’s client was alleged to have physically restrained the alleged victim while violently raping her inside of another Soldier’s barracks room until someone walked in on them while they were having sex. Prosecutors pointed to the multiple bruises on the second alleged victim thus showing the amount of force and violence used by the client. This was rebutted, however, by Mr. Gapasin’s cross-examination. Under questioning by Mr. Gapasin, the prosecutor’s own Sexual Assault Nurse Examiner testified that the dark coloration of the bruises in relation to the timeline provided by the alleged victim revealed that the bruises could not have occurred when she claims to have been assaulted. Mr. Gapasin also exposed the reasonable possibility that the bruises occurred from PT rather than from an assault. Mr. Gapasin and co-counsel Mr. Timothy Bilecki also attacked law enforcement for notproperly testing the DNA evidence and conducting a sloppy investigation. The enlisted panel acquitted the accused of rape.

 

U.S. vs. E-4. Four Confessions. Defense Leaves No Stone Unturned. Defense Exposes Minor Injuries of the Infant Child Resulting in Minor Punishment (2009)

On 23 September 2008, “Baby R”, an alleged victim of “shaken baby syndrome,” began having seizures at approximately 1615. “Baby R” was taken to the emergency room where she was diagnosed with extensive subdural hematomas. The child sustained a large subdural collection of fluid and she showed signs of retinal hemorrhaging. She was also diagnosed with epilepsy when admitted to the emergency room. “Baby R” was transported to Tripler Medical Center in Hawaii in order to receive specialized treatment and she was treated at Tripler over the next few weeks. Mr. Gapasin’s client was charged with two specifications of false official statement, two specifications of assault consummated by a battery against a child under 16 years of age with a force likely to produce death or grievous bodily harm, and one specification of unlawfully striking a child under 16 years of age (i.e., “Baby R’s” two year old brother). The defense obtained the expertise of a Child Abuse Pediatrician with the Armed Forces Center for Child Protection National Naval Medical Center. She became the defense expert consultant in the field of pediatrics and accidental and non-accidental physical injuries. The expert was necessary to aid the defense in determining the amount of force used. The defense also obtained an expert in the field of pediatric ophthalmology regarding retinal hemorrhages suffered by the child. In this case, it was alleged that “Baby R” would suffer blindness as a result of the injuries. In shaken baby cases, injuries to the eyes are frequently an issue. With a few weeks left before trial, the Government remained steadfast that the accused should be sentenced to up to 10 years of confinement. The defense understood, however, that the deposition testimony of two Oklahoma physicians could be key in obtaining a satisfactory guilty on behalf of the accused. Based on depositions that the defense fought hard to obtain, the doctors testified on video that in their medical opinion about 1 year after the incident, “Baby R” was alert and active with normal faculties like any other child. Contrary to the speculation expressed by the doctors who provided the initial treatment, the Oklahoma doctors testified that in their medical opinion, the child’s condition had returned to normal and that she would live a normal, active life. As a result, the parties entered into a guilty plea where the prosecutors came down from their original 10 years to only 6 months confinement.

 

U.S. v. E-7. Rape Case Against Reservist Dismissed Thanks To Strategic Cross-Examination (2010).

The reservist E-7 who was accused of forcible rape in an apartment complex. Thanks to aggressive investigating by Mr. Gapasin, and a detailed cross-examination of the alleged victim by Mr. Gapasin, the Investigating Officer at the Article 32 hearing did not find her claims on nonconsensual sex to be credible. Mr. Gapasin strategically cross-examined the alleged victim to reveal to the Investigating Officer the number of inconsistencies between her testimony and prior text messages, Facebook posts, and emails.

 

U.S. v. E-5. Full Acquittal In Rape Case Against NCO In Okinawa (2009).

The E-5 client was fully acquitted of rape after facts revealed that the alleged victim had been exaggerating her supposed fear. Based on the testimony, she was never scared of fearful of the client.

 

U.S. v. E-3. Rape Charges Are Dismissed In High-Profile International Case (2008).

A number of international media outlets covered this high-profile case in Okinawa, Japan. Protests on Okinawa streets persisted throughout the court-martial. However, cross-examination of alleged Filipina victim at Article 32 and depositions taken in Manila, Philippines resulted in the full dismissal of rape charges.

 

Other Dispositions Obtained By Mr. Gapasin.

There are many cases that Mr. Gapasin has negotiated for reducing a General Courts-Martial or Special Courts-Martial to nothing more than nonjudicial punishment. There are other cases that Mr. Gapasin fought hard for a Chapter 10 or Chapter 4 Discharge in lieu of a Court-Martial in order to save the client from protracted criminal litigation as well as a Federal conviction or worse yet, Sex Offender Registration.  Mr. Gapasin has also obtained testimonial immunity on behalf of clients in order to protect them from serious convictions for offenses such as negligent homicide, high-level drug distribution, and even aiding and abetting in a high-profile case involving murder and alleged war crimes in Afghanistan.

 

Represented Vice-Wing Commander in the Air Force in a General Court-Martial whose case was heavily covered by numerous national media outlets.

 

Represented client charged with First Degree Murder in one of the few anticipated death penalty trials in the military.  Case was heavily covered by numerous media outlets.

 

Represented service member allegedly involved in the black market distribution of products in South Korea.

 

Represented service member for allegedly stealing over $60,000 in items from the PX in South Korea over the course of several months.

 

Represented service member for his alleged act of assaulting a South Korean taxi cab driver with a knife.

 

Represented service member for allegedly using and distributing LSD. Service member received very light punishment.

 

Represented service members charged with DUI.

 

Represented service members charged with the unauthorized wear of badges.

 

Represented service member charged with the aggravated assault of a fellow officer while on holiday leave.

 

Represented numerous service members charged with sexual assault and military-specific offenses.

 

  • Member, Bar of the United States Supreme Court
  • Missouri State Bar, Military Law Committee
  • National Association of Criminal Defense Lawyers
  • Member, State Bar of Nevada
  • Member, State Bar of Missouri
  • United States District Court, District of Nevada
  • United States District Court for the Western District of Missouri
  • The Judge Advocate General’s Legal Center and School, U.S. Army, JAG Corps, Charlottesville, VA
  • J.D.,  University of Missouri School of Law, Columbia, MO
  • B.A., University of Notre Dame, South Bend, IN
  • National Trial Lawyers Association, Top 100 Trial Lawyers
  • National Trial Lawyers Association, Top 40 Under 40
  • “Finalist” for the BBB Torch Award for Ethics 2017
  • 2003 Tower of Strength Award, State Bar of Nevada
  • Meritorious Service Medal, Army Commendation Medal with 2 Oak Leaf Clusters, Iraq Campaign Medal with Campaign Star
  • “Unlawful Searches and Seizures”, Constitutional Law Class, Evangel University, Springfield, Missouri (2019)
  • Cross-Examination in Sexual Assault Cases, Annual CONUS Trial Defense Service Conference, Tampa, Florida
  • Innocence Lost:  Cross-Examining Child Victims, USATDS Pacific Rim Regional Conference, Seoul, South Korea
  • The Art of Taking Depositions, USATDS, Pacific Rim Regional Conference, Dongducheon, South Korea

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