The case of United States v. Wilkerson gained noteriety, and has led to additional motivations for military justice reform.

If the piece from Stars & Stripes is correct, Emails show general warned against reversing Wilkerson verdict, LtCol Wilkerson may still be in trouble and his Air Force career may still be in jeopardy.

Franklin’s memo, released in early April, had also included his doubts that Wilkerson, an apparent family man and fine officer who’d been selected to be a colonel, would commit sexual assault, particularly in his own home with his wife and child nearby.

Two weeks later, the Air Force was investigating whether Wilkerson had years before, when he was a major, engaged in an extramarital affair that produced a child. In June, the Air Force confirmed that he had.

That investigation was also posted online this week. It concluded that in addition to having committed adultery, Wilkerson had apparently misused government resources. “[G]iven his position, and the appearance of the use of government resources (an F-16) to facilitate the adulterous encounter while on a TDY, I have concluded this conduct is of a nature to bring discredit on the armed forces,” according to the unnamed investigator who wrote the report. (Emphasis added.)

Here is a link to the report referenced in the piece by Nancy Montgomery.

The issues appear to be the adultery (outside the statute of limitations, but not a bar to AdSep).

The IO nicely sets out the administrative actions that might be taken, and also a good analysis of which may or may not be appropriate.

(Update:  there are two documents in the FOIA release that follow the adultery investigation.  Interesting reading.)

7 Responses to “LtCol Wilkerson update”

  1. Angry PAO says:

    [While this comment does not meet our terms of service, I am posting because I felt the content was worthwhile . . . and highly amusing]
    Lt Gen Franklin’s memo: “Letters from Lt Col and Mrs Wilkersons’ family, friends, and fellow military members painted a consistent picture of a person who adored his wife and 9-year old son, as well as a picture of a long-serving professional Air Force officer…described as a doting father and husband.”
    A person who actually did an investigation: “The evidence indicates Lt Col Wilkerson had consensual sex with a woman who was not his wife on 19 Sep 04, resulting in a child…his conduct was to the prejudice of good order and discipline, and was of a nature to bring discredit to the armed forces.”
    So, your good family man defense falls flat. Thanks for ruining the UCMJ for all of us, sir.

  2. k fischer says:

    One of my favorite scenes from “A Few Good Men” is after the Jessup monologue where Captain Jack realizes the old man screwed up and agrees to have the Article 39(a) because “the witness has rights.” The look on Kevin Bacon’s face was great because he suddenly realized that he was on the wrong side of that case all along.
     
    As a defense hack who really was hoping that US v. Wilkerson was a case where some innocent guy got railroaded and a General had the chutzpah to make it right, I have to look at the ground and shake my head in agreement with Angry PAO.  When I heard that Wilkerson was an adulterous  baby daddy, I immediately thought of the quote above from the memo.  Not to mention Beth Wilkerson’s testimony that if he had been in bed with the vic that she would have been out of there because she had other options.  She’d been divorced before and knew the drill.  Right…………baby Daddy info would have been nice to know for impeachment purposes.

  3. AFSVC says:

    After reading all the new additions (the email traffic and the CDI), my opinion hasn’t changed. I still believe Lt Gen Franklin made the decision he made for the right reasons, ie honest doubt about the guilt of the Accused (whom he clearly believed to be innocent…I’d be curious if he feels the same way now, not so much because Wilkerson had the affair but what it says about the credibility of his doting wife: poor, innocent Beth who wouldn’t stand for her man being in bed with another woman, but fathering an illegimate chid is okay). I also still believe that was absolutely the wrong decision based on the evidence, irrespective of the immense blowback on our system. I am naturally defensive of our system and our commanders but reading this just makes it that much harder for me not to think we’d be better off with these decisions made by someone with greater knowledge and experience in the law.

  4. CAF says:

    @ k Fischer and Angry PAO,
    So, the IOs mentioning of the fact Wilkerson and his wife were separated in 2004 carries no merit? if you have now relegated yourself to data mining through Stars and Stripes articles for facts, you will only rise to the hysteria they are trying to create. LtGen Franklin’s letter depicted 16 reasons for overturning the case and only used the good soldier defense piece in his conclusion. Certainly, the 2004 issue would have been problematic, but I believe there is far more to the story (IO concludes Wilkerson surrendered rights after being asked, paid an amount of money, and even apparently hired an attorney for his own parental rights). Given the above, it appears fair to conclude Stripes is only using the worst of whatever they can to still push their agenda. Wilkerson was railroaded and you cannot believe that a 1 night stand while separated is equal to sexual assault. Thus, I can only conclude that SVC has it right, this never should have made it past the rumor phase, as it was bungled from the beginning (I really liked the WG/CC email about “we have the top Prosecutor in the AF working for US”, along with the “I think my Vice is lying to protect his friend stuff…”).

  5. Contract Lawyer says:

    The problem here is that the convening authority reviewed the case based on the record of trial and other evidence before him.  You don’t expect the defense to reveal any of the past issues that are not favorable to their case.  The fact that the accused committed adultery many years before does not mean that he committed a sexual assault.  While this information may rebut part of the defense’s case, this evidence was not put before the court-partial nor was it before the convening authority.  At any stage in the process an accused can be cleared from the decision to prefer and refer, findings at court-partial, final action, and appeals.  Unless the case was disposed of in a manner without prejudice or where double jeopardy  did not attach, new evidence that was not discovered or offered after trial cannot be used to re-visit the criminal case.  On the other hand, an accused found guilty can always be cleared at any stage of the process.
     
     
     
    What offends me about the Wilkerson case is that the convening authority is being scrutinized about a discretionary decision he made as part of his official duties under the UCMJ.  I have not reviewed 1105 in a long time (not really relevant to contract law), but I recall it saying that the convening authority could grant any of the allowed relief, even dismissal, for “any reason or no reason.”  Before we switched over the MS word, I had this language saved on the old Enable word processing program and included it in every 1105 submission. 
     
     
     
    From the Government’s perspective, the 1105 allows the SJA to recommend actions that clean up the record and remove appeal issues by disapproving findings of guilty (including reducing to a lesser included offense) and reassessing the sentence.  Addressing issues at this stage saves a lot of work down the line.  The 1105 process also what implements the terms of a pretrial agreement (PTA).  If the MJ or panel sentences the accused to harsher punishment than in the PTA, then the convening authority disapproves that part of the sentence that exceeds the PTA; this could include elements of confinement, forfeitures, and punitive discharge.  I have never seen a PTA address reprimands *(see side note below concerning reprimands). 
     
     
     
    I believe the 1105 process is perceived primarily as a benefit to the accused and it is a decent “bite at the apple.”  When I was a DC I always submitted something and always asked for some form of relief, even if it was a request for a shorter period of confinement.  I never had this issue, but I suspected Wilkerson submitted evidence that was not admissible at trial.  It always chapped me when TC would argue that some of the MREs excluded relevant evidence and the fact that some of our evidence was relevant was not sufficient to get it admitted as evidence at the court-martial.  Denying admission of relevant evidence favorable to the defense means that evidence that would have increased the probability for acquittal will not be heard by the panel.  This practice is because of social policies and changes in the law to increase the odds for convictions.  Lets accept that this evidence favorable to the defense is lawfully excluded, but the 1105 process allows the accused to present this evidence to the convening authority.  Some may see this as “replaying the game,” but the MCM allows this and the MREs to not restrict what an accused may present in requests for clemency or pardons.  I imagine an accused could also go public with this information.  Regardless, it is clear that the rules of evidence restrict admissible evidence that may be favorable to the defense and in some cases facilitate admission of evidence favorable to the prosecution.  Whether we agree or not, this is what is provided in the MREs and MCM.  Despite this evidence issue, an accused’s 1105 submission is just a statement from the accused and/or a memo from DC graveling for a more lenient sentence. 
     
     
     
    The convening authority must review it and does not have to grant anything, but when an relief is granted it may be for any reason or no reason.  This decision should be accorded the same respect as a decision from the MJ or panel.  Whether the decision was right, wrong, or improper, the decision should not be subject to official scrutiny or inquiry.  Obviously there is no way to protect from public scorn.  Unfortunately there is no way to protect from the Senate confirmation process because the Senate can confirm or not confirm an officer’s promotion for “any reason or no reason” and there is no way around the Senate on the confirmation issue.  I believe it is proper for the DOD, the services, POTUS, and Congress to look into the matter generally, but I believe an attack on an individual convening authority for a specific decision is improper.  In the Wilkerson case, the convening authority did write a detailed memo regarding his decision.  This detailed explanation was not required and the request for it may be improper.  Despite everyone’s analysis and scrutiny of the explanation, the explanation is good enough.  Of course the public and media may scrutinize it as much as the initial 1105 decision, but the convening authority’s decision and explanation of the decision should be accorded the respect the MCM gives to all decisions under the UCMJ.  Congress can change the UCMJ, but the Wilkerson case is governed by rules at the time of the case. 
     
     
     
     
     
    That (above) is my ramble for the day, but on a lighter note, I provide a side note regarding reprimands under the UCMJ and loss of numbers: 
     
     
     
     
     
    *[As a side note, are reprimands adjudged as part of sentencing worthless or is there some real value?  Or is this something a panel can do when they really want to sentence the accused to "no punishment," but feel they must come back with something?  My question here is whether the reprimand actually does something adverse to the accused that is not already accomplished with the conviction?  What if a reprimand is issued and later to be improper?  Is the accused entitled to any credit on other parts of the sentence for having to endure the reprimand?  One more silly question about sentencing:  What about loss of numbers?  I think this is just a Navy thing that may have been useful back in the day where an officer could be court-martialed, serve their sentence, and then continue with their career.  I can see a Naval officer talking with his buddy at the pub on the night after the court-martial:  "Yeah buddy, that loss of numbers really bites.  At the next dining-in I will probably be the one that has to run around in the cow suit."  In modern times, I cannot imagine an officer who was not given a dismissal or administrative discharge after a court-martial conviction actually selected for promotion.  While possible, its not probable.  Loss of numbers may be just a slightly larger bite than a reprimand.  I have actually never seen anyone given loss of numbers, so do not know how it works.  I have seen reprimands, though really do not know how they work either and the clients have not really worried about them.  I believe in the serious cases that carried confinement and a punitive discharge, the reprimand was usually disapproved during the 1105 process.  I suppose the SJA and the convening authority saw it as more of a hassel than it was worth.]

  6. k fischer says:

    CAF, 
     
    I’m not saying that adultery equals sexual assault.  What I am saying is that Lt. Gen. Franklin’s logic that Wilkerson is a loving and doting husband is contradicted by having unprotected sex and impregnating some random female while he was married to his wife.  Let’s not forget that a panel convicted him and he also had that pesky complaint that he was looking over the bathroom stall at a subordinate’s wife.  This is what we know.  I shudder to think of what we don’t know.  

  7. CAF says:

    @ KF,
    Typically, I am inclined to agree with you, but having sat through the trial and then read the letters as merely an interested party (and no affiliation btw), it seems you’re citing what a disgruntled O3 wrote regarding the night of a squadron event in the squadron bar. Mind you this was all hearsay, as clearly depicted in some of the clemency letters, but as a defense attorney, it would seem to me that believing whatever the TC may present in ‘have you heard’ gives the defense very little opportunity to rebut. When you then add other extenuating circumstances to this pesky little complaint (again, as depicted in the clemency letters regarding this wife/husband’s efforts to gain favoritism re Wilkerson), I think your statement of what we know is a stretch. While I agree the logic used by LtGen Franklin may be a stretch as to the doting husband, I think the facts (‘what we know’) used to arrive at his conclusion are irrefutable.