While not a court-martial, this prosecution is notable. Bloomberg report here. NY Times report here. The NYT report states:

Mr. Petraeus has agreed to plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor. He is eligible for up to one year in prison but prosecutors will recommend two years of probation and a $40,000 fine.

57 Responses to “Petraeus to plead guilty to mishandling classified material”

  1. Charlie Gittins says:

    Kendall and Barnett from Williams & Connolly.  I am sure they worked fast after the story ran that Petraeus may be indicted.  Good work by the best law firm in the United States.

  2. Monday morning QB says:

    Although Weirick mentioned it in a different post, I’ll pick it back up here.  One way to hold GO’s accountable would be to get rid of the requirement for panel members at court-martial to be of senior rank to the accused.  I mean how do you court-martial a 4 star, logistically?  Let officers be judged by other officers of any rank. It already happens when they go judge alone (there are no GO military judges). 

  3. Weirick says:

    MMQB is wise. 

  4. Monday morning QB says:

    Here is an excellent article on the Sinclair case that shows how difficult it is to prosecute a GO and seat a panel who do not in some way know the accused: http://www.nytimes.com/2013/07/19/us/in-generals-court-martial-selection-begins-for-a-jury-of-high-ranking-peers.html?_r=0
     

  5. Advocaat says:

    Can we revisit this GO’s retirement grade?

  6. Weirick says:

    Lying to investigators about passing counterfeit poker chips gets you a letter of reprimand and loss of $4,000.  Great deal of you can get it. Flag officers know a court-martial is not an option for them, as MMQB points out.
    http://www.foxnews.com/politics/2014/11/24/admiral-denies-role-in-counterfeiting-casino-chips/

  7. MD11 says:

    “Lying to investigators about passing counterfeit poker chips gets you a letter of reprimand and loss of $4,000.  Great deal of you can get it. Flag officers know a court-martial is not an option for them, as MMQB points out.”
    Unbelievable.  No wonder the troops have ZERO faith in the military justice system, when a LCpl will get a chucked right out of the service via adsep for COSO if they did they exact same thing.  And Petraeus (whom Bill O’Lielly called “America’s best general”) gets a sweetheart deal for unauthorized disclosure of NSI to his mistress, and gets to still earn untold cash on the speaking circuit, whereas a Sgt gets lit up for larceny, sent to the brig for 90 days, and a BCD. 
    http://www.mciwest.marines.mil/LinkClick.aspx?fileticket=WOATSnhlT6A%3d&tabid=16890&portalid=62&mid=36156
    But no revisiting of Petraeus’ retirement grade for his in-service boinking of Ms. Broadwell.

  8. Tom Booker says:

    Monday Morning QB raises a good point.  Look at Article 25(a).  There’s an escape clause in the language of Article 25(d), viz., “when it can be avoided.”  In the case of general and flag officers, perhaps it cannot be avoided. (This played out in an interesting manner in a court-martial I presided over about 10 years ago.  The member was a lieutenant commander whose sentence, but not conviction, was set aside, and he was returned from a federal prison to face resentencing.  Should the venire have consisted of officers who were in pay grade O-5 and above at the time of resentencing or the time of the original trial?)  Per section 601 of title 10, moreover, appointments to vice admiral and admiral (lieutenant general and general) are temporary appointments, so arguably a two-star with a more senior permanent date of rank is senior even to a three-star with a more junior permanent date.
     
    For Advocaat, I think the answer is “no,” as grade determinations hinge on the last grade in which the officer satisfactorily served.  It is possible that Mr. Petraeus mishandled the classified information while on active duty, in which case a grade determination might work, but I would argue that even if he had bungled things in one four-star position, if he had done all right in another then he’s safe.  Think of ADM Kelso and the Tailhook fallout.  Even if he had not served satisfactorily as CNO (and acting SECNAV for a time), he had years of satsifactory service as CINCLANTFLT and CINCLANT/SACLANT  (this was before the Rumsfeld removal of the “commander in chief” moniker from all but the President).
     
    Finally, there used to be a provision, perhaps before the Defense Officer Personnel Management Act, that allowed for the President to drop an officer from the rolls, even the retired list.  Perhaps the Army personnel directorate can unearth such authority if there is a taste for it.
     
    There, I’m an expert on something, just not military justice.
     
    Respectfully, LTB

  9. Jack Burton says:

    Unfortunately you cannot drop Mr. P from the Army Rolls.  See AR 600-8-24 para 5-15, which requires a sentence to Fed or State confinement and the sentence has become final.  That rule does not apply to officers entitled to receive retired pay. 
    I agree with everyone about the revisit of his retirement grade, but if there was no bad paper when he retired then there is nothing for the grade determination board to consider.  My understanding is that he never got pinched for anything until after retirement.   

  10. Advocaat says:

    Great points and discussion.  I think SECDEF should be forced to make a decision on the OGD one way or the other.  It would be a valid measure of how he approaches the issue of “ethical fading.”  Failing to address this matter head-on would be a terrible mistake.

  11. RKincaid3 (RK3PO) says:

    Well, for purposes of a purely academic discussion, retirees are still subject to the UCMJ, so would there be any interest in discussing whether Petraeus can be recalled to Active Duty for appropriate UCMJ/Administrative action for his “post-retirement-but-still-UCMJ-covered” misconduct? 
    I am presently only tracking recalls to Active Duty for the prosecution of retirees who committed offenses–usually murder or child offenses, and now sex assaults–while they were still on Active Duty and before they retired.  Is anyone tracking whether any retired servicemember has ever been recalled to Active Duty and prosecuted under the UCMJ for their post-retirement conduct which violates the UCMJ and which is or should be possible given the plain language prividing that retirees remain subject to the UCMJ?
     
    And, on that point–again, for purposes of academic discussion: I wonder–which example of “sharing of classified secrets” was the most self-serving or the most altruistic or does it even matter:  Petraeus’ or Snowden’s or Manning’s?  Do or should we as a society measure the criminality of the conduct at issue (and thus attempt to mete out the appropriate punishment) by any consideration of the leaker’s motivation (e.g., to self-glorify/seduce, or to alert the public–both national and international–of government wrongs or by the fact of actual publication (by media or other unauthorized recipient) or by the mere fact of disclosure (regardless of how the disclosed info is used)?
     
    Clearly alerting the public is more altruistic, but it also does the most actual harm to national security.  Conversely, leaking classified info to a lover for self-glorification/seduction purposes is undisputedly more selfish and serves absolutely no altruistic or public purpose whatsoever, and yet it may (depending upon how the recipient uses it) have absolutely no national security damage implications whatsoever.
     
    So, what does or should matter in determining the relative criminality of Petraeus, Snowden and Manning?  Or should they each be judged and similarly punished for their one common undisputed fact–their unauthorized sharing of classified information, without regard the relative, subjective, and/or judgmental value of their unauthorized sharing?

  12. Andy P says:

    Wouldn’t a UCMJ prosecution after a guilty plea in Federal Court be barred by double jeopardy?  Not saying Admin action couldn’t happen, but what would it be?

  13. stewie says:

    He’s going to plead guilty and get a federal conviction.  Why isn’t that enough?  It would be one thing if he wasn’t facing any punishment from the Feds.  But he is.

  14. RKincaid3 (RK3PO) says:

    Andy:  Yes, Double jeopardy attaches for UCMJ purposes after a federal conviction.  My question contemplated an alternative theory of redress.
     
    Stewie:  It is enough, but not in one very specific and important sense:  the different standards of fair, just treatment of an accused between military and civilian criminal courts.   Specifically, should Petraeus not be held accountable in the same forum and under the same rules and Articles that are apparently good enough for all us Servicemembers who are “regular Joes” who are all subject to the UCMJ?
     
    Is this not a more important question especially considering the following premise:  if the UCMJ and military justice–with its lower requirement for conviction and its hand-picked panel membership is good enough for junior Soldiers implicated in crimes involving sex and national security, why is it NOT good enough for a retired-but-subject-to-the-code G.O.? 
     
    Yes, I know that such a panel will be stacked with other G.O.s.  But it is a question worth asking–as are the other questions I posed.  I would very much like the input of others to all the questions presented–especially in the historical context of whether a retiree subject to the code has ever been recalled to AD to be prosecuted for post-retirement criminal offenses.
     
     

  15. stewie says:

    Huh? If one of the joes were tried by the Feds, and yes it does happen from time to time, and pleads guilty, should we fret about that too?
     
    It’s a guilty plea.  There aren’t a ton of differences between GPs in Fed court and CMs…and of the differences, not all of them are better for the accused in the former.
     
    You’re reaching for a soapbox on this one IMO.                                

  16. Soapbox Derby says:

    What’s most significant here is that in the Factual Basis that was filed (you can find a link for it within a nytimes article http://www.nytimes.com/2015/03/04/us/petraeus-plea-deal-over-giving-classified-data-to-lover.html?_r=0 ) it states as fact that Petraeus failed to hand over his ‘black books’ which was required before leaving the Army, and that he just tucked them in a rucksack and kept them at home, and then – before retiring – he gave them to his lover lady. All of this was in violation of regs, laws and so forth and all of that took place while he was still on active duty. These books had sensitive information in them to include code word material, sources, names, plans, notes from secure comms etc. 
     
    There should be no debate about recalling him to active duty – he stepped over the line while on active duty, subject to the UCMJ, and he should be recalled.
     
    With respect to Mr. Booker’s comments: the flippant handling of these books is not overmatched by doing a good job in another position but at the same rank. If your argument was applied, there’d be no justification for demoting people at Art 15 for example. Almost everyone would be able to argue satisfactory performance in that rank for some other time/place/duty assignment. If E-5 Smith can become E-4 Smith in the blink of an eye at a proceeding as loose as a Field Grade Art 15, then Petraeus can get knocked down a few notches for this. 
     
    I suspect Mr. Petraeus will not be brought back to active duty or in any way be touched by the DoD – because it will open a can of worms that no one wants to deal with. A) Broadwell spent a good amount of time with Petraeus in theater B) Petraeus was known as a runner, and he was good at running, Broadwell was a good athlete and would go with him a lot C) She had unprecedented access to him and they spent a lot of time together, alone D) She or someone acquainted with her used Petraeus’ gmail account and she went after another woman in some sort of ‘keep away from my man’ quarrel E) She lives in North Carolina and he re-deployed / retired / lived around Langley due to the CIA position – so they weren’t all that close geographically here in the US F) They had an affair together
    The simplest explanation for their affair was that it started in theater, and did not somehow get started all of a sudden upon his retirement. The FBI searched emails and other things and it would seem unlikely they didn’t uncover evidence of the affair transpiring in theater. If the Army brings him back they’ll have to face up to a decision on whether or not to punish him and I’d bet dollars to doughnuts that the information would come out that he: was at fault for the classified documents issue, committed adultery, throw in Art 134, and I’m pretty sure his tryst was also a violation of General Order #1 for deployed service members so I guess you can throw in Art 92. The Army and the DoD wants no part of that circus. They’d have to answer the bell for going easy on Amos and Petraeus among others, while Joe has been getting hammered. 
     
    I predict the DoD will be called out on this eventually. Their ready-made excuse will be that if they brought him back, and took him to court-martial, there’s a chance a panel could find him guilty, sentence him to prison, and jeopardize his retirement money and that the DoD wouldn’t want to see Petraeus’ family have to deal with that loss of income ‘because they’ve already been through enough’. 

  17. afjagcapt says:

    Before we lynch the Secretary of the Army (or whoever has recall authority), does anyone actually believe the decision on the what’s and how’s of prosecuting someone like General Petraeus would be made anywhere other than Pennsylvania Avenue? Not saying the decision was right or wrong, but with his stature this is as much a political decision as a criminal justice one.

  18. stewie says:

    Called back and charted with what?  The same acts he’s pleading guilty to?  Or are you recommending he be called back and charged with adultery?

  19. stewie says:

    charged.

  20. RKincaid3 (RK3PO) says:

    Interesting commentary (and links) on Lawfareblog.com regarding the Petraeus plea.
     
    Stewie:  No.  Not looking for a soapbox.  The soapbox is there and as reflected by the Lawfareblog commentary and articles, it is NOT just me asking the obvious questions.
     
    These are relevant issues/questions that should be addressed–not ignored or sidelined–as so much soapbox pillorying!
     
    Just my thoughts…

  21. RKincaid3 (RK3PO) says:

    Stewie:  In a word–yes–recall him and charge him with adultery if the evidence supports it.  Why should he not be treated as any other Joe?  Obviously, I recognize that typically, most recalls to active duty after retirement only involve serious offenses, which adultery is not.

  22. Timmy says:

    Recall to active duty: Show Cause BOR, AdSep, OTH – and grade determination – take away his retiree ID card – no TRICARE for Life – no on-post activities or entry – no security clearance – send his retirement check to his wife only – and order for no contact with active duty personnel except his son, if he’s still serving
     
    If your commo sergeant leaves the commo safe open and walks away, even if nothing is in it, and first sergeant walks by – commo sergeant can get NJP (and seriously jeopardize clearance renewal) and nobody says a word. If it’s your commo officer, he/she probably gets a GOMOR then an order to Show Cause. Petraeus hands over books and has an affair with another officer and people want to question bringing him back? Stop with the pity party already. 
     
    From 2011 to 2012 the number of Army officers ordered to show cause doubled – DOUBLED. Why? Because we are downsizing and their due process, careers and reputations are destroyed to trim some numbers and dollars. Thanks to Sec Def Gates Petraeus makes more in retirement than on active duty. This is a great opportunity to save the DoD millions of dollars by getting rid of his retirement money. It was suitable justification to ruin thousands of lives and run over due process concerns, so it’s good enough to bring Petraeus back. At the minimum they should at least shuttle that money to his wife. 
    Let us know when one of those Army regs says these rules don’t apply to generals. 

  23. stewie says:

    1. How many Joes you know that have been charged JUST with adultery at CM?
    2. How many Joes you know that have been recalled to active duty and charged with JUST adultery?
     
    Most recalls only involve serious offenses? Show me one that did not involve a serious offense.  Come on!
    Timmy, when’s the last person called back purely for administrative purposes? Is there even authority to bring someone off retirement just to do a show cause board.  For that matter, name the last officer show caused JUST for adultery?
     
    Somehow, GEN Petraeus has become the whipping boy for all our troubles with senior officers. Our great white whale to which we can all play Captain Ahab.  I’d be on-board if the Feds let it go, but they haven’t.

  24. Charlie Gittins says:

    Last time I checked, false official statement — or 18 USC 1001 was a five year felony.  He wasn’t charged with and didn’t plead to lying to federal agents.  He is subject to the Code as a retiree drawing pay and the offense occurred while he was in that status.  Call him back and give him the same as the many officers I have represented who have been accused of lying to NCIS, CID or MPs.  I would argue he is not Moby Dick and should be treated like any other officer fish.  His status makes his conduct MORE egregious, not LESS. 

  25. stewie says:

    OK, how often are officers called back from retirement for a 107 offense?
     
    Adultery is a 1-year felony.  IIRC, consensual sodomy, when it was a crime, was 5 years.  That doesn’t make it enough to call folks back from retirement for, and it doesn’t happen.  If we saw junior people being pulled off of retirement for such offenses, then I’d agree…we don’t.  “Any other [retired] officer [or enlisted] fish” would still be swimming in the ocean in this situation.

  26. DCGoneGalt says:

    Mr. Gittins and Stewie:  “What difference, at this point, does it make?”

  27. RKincaid3 (RK3PO) says:

    Stewie: Methinks you are minimizing.  Isn’t the point–especially Charlie’s point–like everyone questioning the way this has been handled (like Benhamin Wittes at Lawfareblog.com) that there is a real disdain for the concept of separate tiers of justice–one for leadership (political or civilian) and one for the rest of the Average Joes?
     
    Is it really quaint, trite and cliché to believe that “equal before the law” actually means something to the citizens of this country–both historically and legally?  I think all who are asking the question know that this is largely an academic discussion, but it is grounded on real world, practical perception and legal issues.  The ability to recal retirees for pre-retirement misconduct is clearly unquestioned–it can be and is done regularly, albeit only for certain very serious offenses as we’ve discussed.
     
    But why is it only for really serious offenses?  Why is adultery or lying only a “throw away charge” if it is not to be charged separately?  Why have the minor offense on the books then?  Obviously, these questions ignore the strategic value and utility to the government of charging minor offenses along with major offenses in order to negotiate away the minor offense while pressuring acceptance of a guilty plea; or of guaranteeing at least a conviction on the minor offenses when the major ones are seriously questionable–like many sex assualts.  These questions also ignore the obvious fiscal limitations on such recalls–why spend that money on something so minor–which further requires consideration of why are such minor offenses even still on the books then except maybe to increase the government’s (read: the commander’s) ability to convict as part of “rough justice?”
     
    But really, Stewie, the untested question–despite the clear implication of the language that declares it legal to recall a retiree for post-retirement misconduct (as is undisputedly done in cases of pre-retirement misconduct)–is WILL such recall and prosecution actually occur?  Obviously, the answer is an issue of political (or popular) “will“–and there is NONE supporting Petraeus’ recall, prosecution and demotion–no matter how deserving.  And there would likewise be NONE protecting you, me or any other average Joe from being subjected to that dismal fate–no matter how minor the offense if any Average Joes are for the moment particularly notorious and unpopular accuseds.  Average Joes, unlike Petraeus–who remains a popular accused–are not going to be described by Politico as still having a shot at the White House despite the federal conviction.  And, we haven’t even discussed the likelihood that Petraeus will get a Presidential pardon that no Average Joe in similar circumstances would ever get (remember all the money and political connections involved in successfully getting a pardon nowadays?)  Long gone are the days when a POTUS would pardon a man whose request contained no powerful endorcements from wealthy or political supporters (e.g., has no friends) simply because the POTUS was willing to be a friend to a man in need.
     
    The issue of political “will” in these cases, I submit, is THE huge problem in justice systems–both military and civilian–today.  From the UCMJ (which is being undermined by political UCI) to civilian prosecutions being deliberately mishandled by DAs in Ferguson, MO, and NYC (to spare the accused cops of trial even when the evidence at trial following indictment would likely result in an acquittal)–this issue jeoparies the public confidence in the justice system whenever it occurs.  And, I submit that the issue of political “will” has been reasonably raised by far too many credible persons to seriously suggest otherwise, or to assert it is so much sour grapes.  It is in practice, or at least perception, a double standard: one standard for those with political power who act as if they are above the law entirely (or are at least treated in practical remedy as barely touched by the force and effect of that law) and another standard for the Average Joe. 
     
    And, the Average Joe standard means that they are just so much fodder on which the law that governs all is really free to grind–perhaps even at the behest of those who are themselves politically immune for the same or similar conduct.

  28. Advocaat says:

    I don’t think a court is appropriate given the DoJ disposition.  Unless there is a statutory prohibition against it, I do think SECDEF should do an OGD and tell us if he believes this man served honorably in the grade of O-10.  I would bet the house DoD will do nothing.

  29. stewie says:

    What different tier of justice?  He’s retired.  He’s not on active duty.  The appropriate comparison would be: How would we treat any other situation of someone who has retired, faced with similar charges, who is being processed through the civilian, federal criminal justice system?
     
    The answer is, we’d do nothing different.  We wouldn’t bring Joe back to try him for false official statement or a 107 charge.  We wouldn’t bring Joe back to try and get him a reduced rank through an admin process.
     
    Yes, people DO get recalled from retirement: for serious sexual assaults, murders, etc.  They do not get recalled for adultery or lying. If I’m wrong, please, show me.
     
    Why is it only for very serious offenses? Because recalling someone to active duty, effectively “unretiring” them is a big deal that should require something fairly serious.  The only reason we are talking about Petraeus and recalling him is because of who he is.  If he were SGT Petreaus, no one would care if he was recalled.  So that particular coin has two sides.
     
    No one denies there’s a double standard generally speaking with senior leaders and misconduct.  On the one hand, you partially understand why.  They have a much longer period of, usually, good service that mitigates things, as well as the impact of losing their career or rank is orders of magnitude greater than for a junior Soldier.  On the other hand, when you are given great power and prestige, responsibility comes with that.  And all in all, we tend to fall too far on the first side of the equation and much less so on the other.
     
    But the solution there is a systematic solution.  It is not, let’s find the first general officer we can who’s done something wrong and do something to him that we hardly ever, if ever, do to anyone, as make-up for all the prior injustices.
     
     

  30. Wowzers says:

    Stewie: Sorry but I conclude you have zero credibility after justifying the disparity in accountability with an erroneous claim that senior members are potentially impacted ‘orders of magnitude’ above a junior soldier. Your logic is perverted and reversed. It is infinitely more damaging to a junior-to-mid rank soldier to be stomped on by the chain of command and get thrown to the curb with no retirement, no medical coverage, and no salary, as well as no post-service benefits, while having a family to support. This applies even without a family to support. How many of the homeless Veterans out there, the result of purging through the military justice system, are junior/mid rank people as opposed to senior officers? A senior officer with multiple degrees, paid for by the military, with at least two more decades of networking and knowing a huge array of people that will or can facilitate post-service employment, and two decades of salary about 5x that of a more junior member, a likely huge sum in a TSP account among other savings, is in a vastly more advantageous position. Your comment is astounding. I’ll stop with that because I don’t want to spiral into some ad hominem. I just hope you get some perspective on this issue. 
     
    http://www.nytimes.com/1999/11/17/us/general-is-demoted-2-ranks-and-made-to-retire-in-sex-case.html
    ”Yes, this was a heavy price to pay, but much lower-ranking people would have gone to court-martial for such an offense, and they could have lost everything,” said Tod Ensign, director of Citizen Soldier, a nonprofit advocacy group for soldiers.
     
    That quote was about this:
     
     
    Major General (ret) David R.E. Hale was sentenced tonight following his earlier guilty plea to seven counts of “conduct unbecoming an officer and a gentleman” and one count of making false official statements. Standing before a court-martial proceeding at Ft. Lewis, near Tacoma, Washington…
    http://www.jamesmadisonproject.org/press.php?press_id=24
    http://www.jamesmadisonproject.org/press.php?press_id=22
    http://www.nytimes.com/1999/09/03/us/army-demotes-retired-nato-commander-who-admitted-affairs-with-wives-subordinates.html
     
     
    Retired general, recalled, court-martialed: 7 counts of conduct unbecoming (adultery and other issues), and false official statement.

  31. stewie says:

    Well Wowzers, you are free to conclude whatever you’d like about my credibility.  I’ll try to muddle through despite your zeroing it out.  And yes, there is absolutely a greater impact relatively speaking when you are talking say a LTC losing his retirement which means millions of dollars, and a SPC with three years in getting an admin separation.  I don’t think the veteran homeless problem stems from the rank disparity of court-martial sentences and administrative punishments between ranks. Nor do I think to be “fair” you have to somehow reduce the opportunities of that LTC down to the ones of that SPC, which appears to be what you are arguing.  Taking your argument to its logical conclusion, if we adminstratively discharge a SPC for say marijuana use, we should always court-martial an officer for marijuana use and make sure he/she gets a DD and jail time, yes? That way we erase the advantage of having a degree, or having decades of good service.  I’m about as liberal as you get in the military, and even I find that argument pretty silly.
     
    But kudos, you’ve now linked GEN Petraeus to the homeless veteran problem, that’s an impressive mental logic leap.
     
    I don’t think anyone should get unfairly “thrown to the curb” but to argue that there aren’t two sides to senior folks that includes built up good works over decades and that this isn’t mitigating (and is much more greatly so than for a SPC who’s served 3 years)? Yeah, that’s pretty unreasonable. 
     
    I also stated that I thought we under-emphasized the responsibility part despite my recognition of the mitigation, but in your zest you must have missed that.  Point is, there’s two sides to that coin, and the tension between the two is what has to be dealt with.
     
    As for your link on GEN Hale:
     
    1. dealt with issues of sexual harassment, and would have escaped ANY punishment if not court-martialed.  It was harassment allegations that drove that train, in spite of it eventually be settled as adultery (although adultery with subordinates aint your garden variety adultery either).
    2. was pending investigation of these acts but was allowed to retire before the completion of the investigation (which never should have happened).
    Neither of those things are present in this case. GEN Petraeus misconduct was not under investigation when he retired, and he IS facing punishment for his misconduct. 
     
     

  32. RKincaid3 (RK3PO) says:

    Wowzer:  You are way out of line.  In this forum, Stewie’s well-informed opinions carry tremendous weight and credibility–borne out of significant experience here and in the nation’s military courts.  But you would not know that if you haven’t spent much time here.
     
    As for Stewie’s thoughts, his point is well made–and it is the reason that myself and so many others have in fact made the opposite point about the apparent double standard that results from the actual or apparent existence of military celebrity power-broker special privileges.  But there is too a third point that must be addressed: when facing criminal charges, the military celebrity power-broker (like Petraeus) gets the benefit of essentially two privileges: a “primary immunity” privilege and what can best be described as a “dormant immunity” privilege: specifically, the primary immunity is the obvious one that protects people like Petraeus from facing trial (or minimal punishment through an expensively negotiated guilty plea to the really serious offenses); and the dormant immunity flows from the first privilege as a necessary and unavoidable byproduct of a guilty plea cases: it is hard to start holding them accountable to the Average Joe standard because to do so requires that the military celebrity power-broker be recalled to Active Duty for minor offenses that no Average Joe realistically would ever face, thus creating a separate special punitive standard of justice for military celebrity power-brokers that deprives them the benefit of receiving the same treatment applied to the Average Joe–especially in this case where the really serious charges are being prosecuted federally via guilty plea, thus triggering double jeopardy and leaving only the minor offenses for the military to address.
     
    Sadly, it seems to me that the only way to appropriately resolve this conundrum is for the military celebrity power-broker–Petraeus–to Soldier-up and LEAD by VOLUNTEERING to be recalled to active duty, flagged, and processed for both an Article 15 AND an Administrative Reprimand that is then permanently filed in is OMPF.  And following that, he will need to accept and live with whatever results come from the retirement grade determination review, then be un-flagged, and allowed to retire again at the adjusted grade.
     
    It seems to me that America’s premier military hero has no choice but to do as he has always done–look the enemy in the eye and confront it head-on–which in this case, is his own ego and pride.    He must choose SERVICE BEFORE SELF.  This will allow him to endure the same judgementalism he surely made others endure when they were guilty of similar misconduct: accountability.  He should hold himself accountable through personal example–VOLUNTEER to be redressed.  He should LEAD by example by volunteering to be recalled and held as accountable as have all those who appeared before him after similarly failing to maintain the Army values.
     
    I am reminded of something another General Officer once told a Captain client of mine during an Art 15 for adultery and fraternization in Iraq: “physical attraction between animals is inevitable in these situations, but it is discipline that sets us humans apart from other animals.”  Well, it is high time for Petraeus to live up to his reputation as being the most disciplined, dedicated and devoted of human leaders—one who stands apart from the rest as a leader.  
     
    When a true leader’s personal self-discipline has failed, a true leader steps up and accepts full responsibility for their own conduct, thus rounding out their character by demonstrating the virtue of accountability.  So, is Petraeus the true leader of national renown, or was that just the smoke and mirrors of celebrity and the inevitable cult of personality that so often occasions it?

  33. stewie says:

    I think you solve the conundrum through system changes, not through one individual.

  34. stewie says:

    And I appreciate the kind words, but I’m just another legal nerd trying to keep up with the smart folks on here, and undoubtedly only succeeding part of the time, if that.

  35. RKincaid3 (RK3PO) says:

    Ditto, Stewie, as are we all….

  36. Wowzers says:

    I stand by my thoughts and claims. 
    RK: No, I’m not out of line. And, your tortured defense of Stewie’s position shows you’ve gone to great lengths to fabricate a justification for the disparity we see, as well as ignorance of the realities of being recalled to active duty. A Petty Officer (E4 thru E6) was recalled to active duty and court-martialed back in the 80’s for shoplifting from the Exchange. Please don’t trot out some argument, as Stewie did, that recalling a General for minor offenses would produce a separate brand of justice. You and others are pretending these things don’t happen but they do happen. Less than five minutes research would show you these facts.
    Do you expect Petraeus to report to the gate at the nearest Army post and volunteer to be held accountable? If he were your client and suggested that, once you finished bludgeoning him with the nearest legal tome in arm’s reach, what would you tell him? 
    I have not posted until now but I’ve read – and I’ve read things you’ve written. Your stance on accountability and double standards for justice in other posts are wholly incompatible with your stance on this issue. You’ve concocted some scheme in your mind to excuse inaction on the DoD’s part and you apparently didn’t do any research (out of character with your other posts that seem to be very well researched and thought out), otherwise you would have seen your stance would not hold up to scrutiny. As someone that has squarely been on the side of justice and accountability, to see you depart from that here with a tortured analysis and a ‘fix’ that involves Petraeus volunteering for recall is frankly disappointing. It seems there was a post on this site a few days ago about paternalism – it would appear your stance on this issue is related more to a pseudo paternalistic rush to defend a member of the club than anything else. 
     
    Stewie: For some reason you think I or others want to address systematic changes through Petraeus’s case. I never said that and I haven’t seen anyone else say it either. Why you’re implying that, I don’t know. While I understand your point about the ‘system’ – it’s about how the system is run, not the infrastructure of it, that needs to be addressed. In that regard, the proper treatment of Petraeus’s case is important. More to the point, your stating the system doesn’t (or perhaps shouldn’t) allow for Petraeus to be recalled is patently false. Suggesting it shouldn’t allow for it is misguided. 
    For Hale’s case, none of what you mentioned provides a reason against the recall of Petraeus. Those factors don’t have to be present or absent in Petraeus’s case. Looking for precedent here is a faulty analysis. You don’t need anything on point. Regulations are simple in stating serious offenses and discrediting conduct. And if you do look for precedent, you’ll find cases less serious in nature that did involve recall so again it’s a counter productive endeavor. Previously you and others have stated only ‘serious’ issues bring people back. That’s not true. Also, in Hale’s case, you do realize he married one of the ladies he was having an affair with – if there was ever a reason to mitigate his actions, that would be it, I mean after all they got married, so it must have been much more than a simple fling.
    Also, let’s assume you are correct that only ‘serious’ issues do, or should, bring people back. Let’s discuss the dynamics of Petraeus for a second: when it comes to TS clearances, one of the primary concerns is the vulnerability of people holding a TS clearance. We already know Broadwell went after Kelly, and that Broadwell had time to read (copy, scan, fax too) those black books, and that they had an affair. That makes Petraeus vulnerable and why was he vulnerable to manipulation – because of the affair – which has not been addressed by the DOJ (and wouldn’t be of course). Let’s also not pretend the information in those books is guaranteed to be safe now – there is no way to prove that information was not shared or isn’t somehow still in an unsecured environment after being copied etc – and that is due to the connection between Petraeus and Broadwell in an adulterous affair. Thus, his adultery is not garden variety either and in fact is one of the fundamental reasons TS clearances require such extensive investigations. For the Army to blow this off removes one of the few reasons the military can defend having adultery in its code. Any attempt to say Petraeus’s actions are minor, or that they’re not discrediting of the service is futile. Not only did he hand over extremely sensitive information (8 books worth) – he handed it over to his lover in an adulterous affair. If it was some old dude writing that book, you think he would have handed those books to him? Further, I’d bet the ranch that if any of the attorneys on this site were SJA’s giving counsel to a CA and you had to recommend what to prefer, you’d absolutely recommend including 134 and adultery in addition to the material handling because they are materially related to each other as well as good order and discipline. Even without proof to get adultery, 134 would be warranted for recalling him due to the serious nature of the conduct and discrediting nature of the conduct. 
     
    I thought you were smart enough to see the homeless item as an example of what happens when people are tossed from the military and I know that you are – hence your mischaracterizing my argument by false reductionism as an effort to prop up your own statement. I may have driven a truck in my lifetime, but I didn’t just fall off the back of one. Also I see you’ve invoked an E4 with a few years and adsep to defend your stance but it’s not that simple. For junior and mid ranks, they are routinely purged having served as many as 18 years of service. For senior ranks they get to retire. Your extension of my argument is not only out of line with my stance but it makes no sense. And, nowhere do I say punishment should be correlated with rank in a positive fashion, meaning more rank equals more punishment. Take your LTC against an E6, both having identical offenses and faced with adsep, no retirement yet both eligible. The impact will be far greater on the E6. To boil the issue down to the dollars in a retirement check is misclassification of the problems each will face after the service. Now consider neither to be eligible for retirement. Which one is in a better position to pick up the pieces and move on – the LTC is. Now consider the reality where that E6 is kicked to the curb with nothing and the LTC gets a reprimand, a new duty assignment to a worthless position and submits retirement papers as soon as he is eligible. The reason I state you have no credibility with this is that you don’t have any idea what obstacles are in place for people removed from the service. Also, equating things to a retirement check further shows you don’t have a proper accounting here. Have you looked at the value of the current GI Bill? The last I checked, for full time enrollment you could get a check payable to you in an amount over $1700 per month. Over four years, assuming 9 months of attendance per year, that’s over 61k – which is around two years of retirement money for that LTC. The LTC has a college degree with projected lifetime earnings exceeding 1 million more than what an E4 or E6 with no degree can expect. So, right out of the gate, if discharges are equal, that LTC is at a great advantage – and no I’m not saying to artificially lower the advantage. By your logic and position, the LTC gets to retire while the E4 or E6 does not. So, there’s an excess of 60k that’s a loss, and close to 1 million in lifetime earnings separating degree holders from no-degree persons which is an impact you don’t take into account. And yes, bringing the GI Bill into this is reasonable because those senior officers are almost guaranteed not to use it since they have at least a masters, and speculation about potential use of it by a junior member is senseless – Congress has decided the issue is important enough to establish the program which they would not have done without the assumption of a universal desire to make use of it and a universal belief about its worth (DoD does so as well and uses it in recruiting). The potential gain in income by use of the GIB by senior officers is far, far, far below the potential gain in using it by junior ranks.
    My beef is with your claim of impact upon discharge. You don’t know those impacts and have not taken any time to study them. If you don’t know the impacts then you don’t have the credibility to speak about impact as a factor in whether or not someone faces a given course of action. The absolute dollars from retirement check fails to capture real or relative impact. I thought a brief example of who you’re likely to see as homeless would be enough (and brief), but it was not. But perhaps you should walk around and talk to homeless vets, and see how many are LTC’s; or talk to those with bogus personality disorder discharges and see how many are LTC’s and how many are E5’s – or go visit Wilkerson who was allowed to retire as a Major. Ask him what his plans would have been if he’d gotten an adsep with no retirement and compare that, and his projected earnings based on those plans, to an E6 with a similar situation, then come back and report what the impacts were and what they could have been. The impacts to individuals and to society with regard to the disparity in these discharges is so heavily placed on the shoulders of lower rank that it defies reason to suggest otherwise. 
    It is false assumptions like yours, and unwillingness to re-evaluate them that allow the system to continue operating as it does. If you believe systematic changes are needed, then evaluate the system. I think it would be well worth the time for you and others to follow your clients around for a while after cases are complete, rather than filing away paperwork and considering it a done deal. Part of the problem with the system is that attorneys treat cases like games, they keep score, fly flags from their offices or whatever, and think the win/loss column is the end of it. (by the way such behavior makes attorneys look like children in the eyes of clients and others which is part of the reason why in the past attorneys have been rated below funeral directors in terms of professionalism. this type of behavior shows that attorneys are not acting in the interest of law, or society, or justice, or the military, but in their own)
    Objective assessment is valuable and I’m not suggesting you step away from that, but you cannot speak about the system without understanding the system and it’s consequences, which are thrust upon people, by people. If you’re not studying the people then you’re not understanding the system. 
     
    It’s clear from the comments seen that feathers are ruffled and you guys are going to close ranks and get ‘paternalistic’. So I won’t even assume any dialog about this stuff. But I have certainly learned a few things. 
     
     
     
     
     

  37. AnonymousJA says:

    RKinckaid3, you should ask the officers who rose through the ranks with Petraeus what they think of his leadership. Most will have nothing nice to say. His career began chasing the commandant’s daughter. It ended with his biographer. A great military mind for sure, but there is a large part of the officer corps active and retired who are not shedding any tears.

  38. Phil Cave says:

    1.  Double jeopardy prevents a court-martial, right?  For some of what we think are the allegations.  NJS 101.
     
    2.  Charlie’s right that DJ doesn’t prohibit prosecution for offenses not dealt with by the Feds, such as the lying.
     
    3.  This gets you recalled.  United States v. Allen, 31 M.J. 572.  Actually I was surprised we’ve not seen more about the accuser concept in regard to MST cases.  Perhaps they’ve bee litigating that in regard to the Wright case.
    4.  When I have a Army client facing retirement who has some bad stuff – perhaps a locally filed GOMOR, I generally refer to AR 15-8 as we discuss the way forward.  If it were an Army officer whose misconduct on active duty was discovered after retirement, then I would look at paragraph 4-1.c. and consider this language.
     
    c. Officer grade determinations are normally accomplished at time of retirement or disability separation, and the officer’s grade is fixed at that time. A grade determination can be reopened by the Army after separation—
    (1) If the separation and/or accompanying grade determination was procured by fraud.
    (2) If substantial new evidence discovered contemporaneously with or within a short time following separation could result in a lower grade determination. For example, if an officer’s misconduct while still on active duty is documented by memorandum of reprimand, nonjudicial punishment, or conviction after retirement, and such misconduct was not discoverable through due diligence, a new grade determination may be completed.
     
    You do not need to recall a person to redo their retirement, assuming you can fit the action within the above paragraph.

  39. RKincaid3 (RK3PO) says:

    Wowzers:  Allow me to address your comments in seriatim.
     

    …your tortured defense of Stewie’s position shows you’ve gone to great lengths to fabricate a justification for the disparity we see…

     
    My defense of Stewie was not tortured.  The credibility of his informed opinions in this forum is NOT in doubt.  You may disagree with his opinion, but calling him—or anyone—who appears on this blog “uninformed” is quite frankly ignorant.  As for “fabricating” justifications, we have fabricated nothing.  The problem is there.  The only real, genuine disagreement is whether it is a serious problem or one of mere perception?   Do we know of every possible example of impropriety?  No—no one does.  We all learn from this blog—like we learned of the examples you mentioned.  Your contribution has better informed us, but that is far from saying that we were “uninformed” until you chose to enlighten us—the great unwashed!
     

    Do you expect Petraeus to report to the gate at the nearest Army post and volunteer to be held accountable? If he were your client and suggested that, once you finished bludgeoning him with the nearest legal tome in arm’s reach, what would you tell him?

     
    Obviously, Wowzers,I did not offer that surrender option as his attorney or counselor at law.  Were I his attorney/counselor at law, I would work in his best interest, and advise accordingly.  I am not his attorney and my suggestion was NOT designed to serve his interests.  It was designed to appeal to the conscience of a man who is reputed to be able to LEAD through thick and thin—even at great personal sacrifice.  He certainly issued orders that led to the deaths of Servicemembers in A-stan—orders the Servicemembers—as volunteers—were legally and morally required to follow despite the fact that in some cases, the task may have seemed and was in fact suicidal.  Now is his chance to pull a John Bell Hood and “take that damn hill” at Gettysburg knowing full well that the order was foolhardy, that the hill could not be taken and that death was all but certain.  In this case, the death that Petraeus faces is only the death of one or two of his 4 stars (probably not more) and a commensurate loss of the related retirement income—hardly comparable to physical death—and thus hardly a difficult choice to be made for one who has crafted a reputation as totally undaunted in his quest for the title of “leader of leaders”—especially given that he apparently still hopes to claim the Presidency.  I remember reading somewhere that:
     

    Leadership is not so much in words as in attitudes and in actions.

     
    Well, consistent with that quote, my suggestion that it was time for Petraeus to ACT like a leader—not simply SPEAK like one—was NOT legal advice.  He has lawyers to hold his hand and dispatch the legal threats.  To lead NOW, though actions and not words, Petraeus doesn not need a lawyer—whose task and mission is advising their client to do nothing but what is best for the client–no matter the cost to others.  But since you ask what I would say, remember that in this case, the evidence is there—his guilt is already pretty well established and admitted to by him.  In such situations, a good defense lawyer will work to minimize the damage and try to make lemonade out of lemons.  It is redefining the definition of victory to one of damage control.  The simple fact of the matter is that the issue is not whether Petraeus is guilty—it is simply one of minimizing his damages.  Who amongst us who have experience as defense attorneys have NOT EVER had THAT discussion with a military client?  A successful part of that strategy often includes a full mea culpa where one’s integrity emerges from the debris that was once a stellar career—thus setting the stage for a future comeback—albeit outside the military which is nowadays sadly a “one-mistake” environment where rehabilitation, recovery and second chances—thanks Congress—while a historical fact, are now a modern, mythical impossibility.  In that vein, then, Petraeus just needs to decide who and what is more important—himself and his ego or the people he claims—through words—that he is qualified to LEAD.  I simply advocated that he lead through the primacy of attitude and action—which generally tend to undermine and belie simple words—which are sadly all that are presently left to describe Petraeus.
     
     

    …it would appear your stance on this issue is related more to a pseudo paternalistic rush to defend a member of the club than anything else.

     
    I, of all people, have no need to paternalistically defend a member of the club—the very club that has pretty much ignored my technical and tactical proficiency and abilities in favor of—as near as I can tell—an aesthetic standard that has no bearing whatsoever on my duty performance, deployability, combat-zone experience, technical and tactical competence or resilience in the face of adversity.  I further have no desire nor practical ability to be a part of that club, or any club in power for that matter.  Indeed, do you think, given just half of the criticism that I have offered herein and in other forums—and under my real name no less—is ever going to identify me as part of current or future membership in the good old boy club you mention?
     
    My recommendation following Stewie’s comments had absolutely nothing to do with protecting anyone or any system.  I simply made an observation about the reality of the situation pointed out by Stewie.  And the reality is that in the real, practical world, some things are impractical—like the “dormant immunity” that Stewie and I discussed that is a practical reality.  It is de facto—not de jure.  But it exists.  And, yes, I will concede there is nothing more impractical than thinking that Petraeus would prostrate himself before the altar of equal justice before the UCMJ as so many Servicemembers did when he was their commander.  But since when has impracticality ever stopped humans from trying—even if trying amounted to no more than a wild-a*s suggestion.  
     

    Objective assessment is valuable and I’m not suggesting you step away from that…

     
    I note, for the record, that in your commentary responding to Stewie, after having disregarded as “tortur[ed]” and “fabricat[ed]” the discussion between Stewie and I, you then went to great lengths the discuss the disparate consequential effects of administrative separation between an E-6 and 0-5.  You did exactly what Stewie and I did:  you recognized the reality of 2nd, 3rd and 4th order effects of decisions made under the current system and used them to justify a particular course of action.
     
    So, I ask you, Wowzers, how different is your use of mental gymnastics to achieve a particular, PRACTICAL and REALISTIC result in how the system works any different than that used by anyone else’s in this forum.
     

    It’s clear from the comments seen that feathers are ruffled and you guys are going to close ranks and get ‘paternalistic’.
     

    I must apologize, Wowzers, if you believe that anything I have written has been taken personally—it hasn’t.  I simply said you were out of line because of your use of a personal attack on a poster’s credibility instead of simply criticizing his ideas, thoughts and opinions.  All I suggested by stating that you were out line was that you should try to make points without criticize personally the author of a thought or suggestion that may very well warrant criticism.
     
    I think, if you are indeed a regular reader, that you should post your thoughts more often—just try to avoid personal attacks and focus on critiquing a system that is quite broken indeed.  Especially now that Congress has decided to really screw up what was already pretty broken—as far as true, objective “justice” goes.  There is certainly much there to address….
     

  40. RKincaid3 (RK3PO) says:

    AnonymousJA:  Really?  You think it really matters what peers and co-workers think of someone who has been uber successful when such success inevitably requires the occasional hurt feeling as toes get stepped on–sometimes for both legitimate mission-essential and petty, personal reasons?  Surely there is a fine line between honest constructive feedback and petty jealousy?  No?  And how does one separate the two?  To do justice, the measure of success is objective, not subjective–and that is a lesson lost on far too many people in a position of power and responsibility–both military and civilian.
     
    No.  For this discussion, the popularity of the outcome is wholly IRRELEVANT to whether an objectively “just” result appropriate to both the military’s and Petraeus’s respective needs and desires can be achieved. 
     
    The sooner that everyone realizes the truth behind “but for the Grace of God go I,” the better off we all will be as a society.  People are quick to judge others–regardless of matters beyond their own personal interests–and when that happens, discussions like this one ensue.  And there appears to be no one right answer as no matter what–someone is unhappy.
     
    That is why all such judgments should adjudicated based upon an objective, not subjective, basis.
     
    Petraeus’s situation is no different than that faced by any other Soldier–and that is why I believe the book should be thrown at him through all available remedies–just as it would (or should) be for any other Servicemember.  But I am also aware that doing so may in fact trigger a de facto “separate” standard of accountability, which, if true (which may not be true–per Wowzers’ and Phil Cave’s historical information), is just as objectively wrong as it would be if done to any other service member.
     
    And, so the discussion and debate continues–probably without a solution–no surprise here–that is satisfactory to all.  Which is why we should NEVER look to subjective satisfaction with a judgment or resolution and instead only look to whether an objectively just result was achieved.
     
    Petraeus’s current result is hardly objectively just–indeed–it is inherently inequitable.  But no les than would be asking for a popular outcome.

  41. stewie says:

    Wowzers, I’m not going to turn this into a you know what contest.  I don’t think the other members of CAAFLOG would particularly enjoy it, and I have no interest in it.  But I’ll respond on a couple of points then let you have whatever final words you like (also, paragraphs are your friend):
     
    1. You don’t know anyone on here (except I suppose for the folks who use their real names, but even then most of us don’t know them either).  Your continual leaping to personal attacks, and personal assumptions about motivations does zero for your argument, or to touch on a topic you initially brought up, your credibility.  Stick to your opinion/facts, and stop with the silly assumptions and personal “observations” based on people you don’t know.  The only “feathers” you ruffle is when you swoop in guns ablazing with personal attacks and observations.  So don’t complain when folks respond in kind to your rather aggressive approach (and quite frankly, I’ve not yet done so). Bottom line, MOST of the time NO ONE gets recalled from retirement for adultery.  To pretend that you are not suggesting a rather unusual outcome is disingenuous.  To castigate me for pointing out that it is a rather unusual, and comparatively severe outcome is equally so.
     
    2. I never said the system “doesn’t allow” for Petraeus to be recalled. So yes, that’s false. It’s also nothing I’ve ever said.  But kudos on setting up a straw man Dorothy would be proud of.  Certainly, Petraeus could be recalled for all sorts of things.  However, most of them are minor offenses, and the most major offense is being handled by the feds.  Now, if you want to petition the feds to cease their prosecution, and then have the military recall and prosecute him, feel free.  And we can all cite to this one case or that one case, but the reality is nearly every other person in this situation is not, and would not be recalled for adultery.  Hale wasn’t being prosecuted by the feds for the underlying more serious issues to his adultery was he?  And citing that he married one of the people he committed adultery with? Not sure the point of that.
     
    3. Words have meaning.  Officers and enlisted with 18 years of service are “routinely purged?”  Really?  It certainly happens, it most certainly is not “routinely” done.  And an E6 with 18 years, first of all…why are they an E6 with 18 years?  To never make E7 in that amount of time is fairly unusual…it’s like not making Major relatively speaking, the last rank where if you serve long enough, you have a good chance of making it.  Not making E8 I get, that’s like making LTC, quite harder.  You are looking a narrow things and turning them into the norm.  But second of all, most panels are going to give a lot of thought before kicking a senior NCO with 18 years, and so are most convening authorities.  And we of course all know about safe harbor…a provision you’d think wouldn’t exist if the system is so intent on screwing NCOs.  You’ve done something mildly clever here.  Instead of comparing someone with long service to someone with short services, which is how you started out, you’ve tweaked it to be about senior NCOs v. senior officers.  OK, except everywhere I’ve ever been on either the government or defense side, senior NCOs were given strong consideration for their long, usually stellar service.  Is it exactly equivalent to an officer of similar time? No, I’m sure it isn’t.  Is it so grossly out of proportion to make the system a farce? No, it isn’t.
     
    Bottom line, there is a difference between long service and short, there is a mitigating value to having held tough leadership positions and performing well in them versus having been a worker bee, and there is a real monetary value to losing say a GI Bill versus a retirement.  That is what i was commenting on, and I remain pretty certain those are valid opinions.  As for whether GEN Petraeus should be recalled, no I don’t think he should, provided he gets punished by the feds because I do not like the precedent of recalling someone for minor offenses simply because of media attention.  And despite your insinuation that this is because I want to “defend the system” it is because of my defense-minded nature that I don’t like this.
     
     
     

  42. AnonymousJA says:

    I agree with everything you said in response RKinckaid, just not the assumptions as to Petraeus. The fact is that for the past 40 years he has been VIEWED as someone in it for himself. From his days as a cadet (which predate any success), the criticism is that he has always valued power over selfless leadership. Therefore, the idea of Petraeus morphing into a selfless leader now is unlikely. I do think those criticisms are telling about his character.
    Serious question for you. Intentionally disclosing the names of covert operatives and other “code-word stuff” as Petraeus described his disclosures does not merit this outcome. I don’t follow you on that. (Note we couldn’t agree more that recalling him seems inappropriate.)
     
     

  43. stewie says:

    Wouldn’t it be fair though to say AnonymousJA that opinions about Petraeus probably depend on who you talk to, just like any other leader at that level?  For example, I know of one senior leader in the Army who has strikingly different opinions about him depending upon who you talk to, but who’s general reputation is, well, less than positive.  I don’t know if the truth is to one extreme, the other, or somewhere in the middle (but my experience is, it’s usually somewhere in the middle).
     
    Having said that, no it would take a pretty rare human being (in fact more than simply a selfless leader) to voluntarily subject themselves above and beyond to more punishment than even the authorities deem necessary, nor do I think his volunteering would actually be accepted by the Army (i.e. they’d look at him funny and say, uh no, we are not calling you back).  I’d guess Petraeus is not that rare human being (neither am I, not remotely).

  44. RKincaid3 (RK3PO) says:

    Anonymous: In response to your question: Let me clarify my comment on the outcome of the federal prosecution–I think you misunderstand me.  As I currently understand the media reports:  the LIGHT punishment he will receive is insufficient.  A $40K fine and no prison time as part of a guilty plea to offenses far more serious than adultery and lying (each of which carries more significant punishment vis a vis confinement time than what he is receiving) while allowing him to retain 4 stars and the related retirement pay is simply a ridiculous–nay–laughable outcome.  I venture to hazard the guess that the $40K punishment is the equivalent of the courts fining me .25 cents.  He won’t even miss it.  As for the consequences of a federal conviction itself–tsk tsk.Allow me also to clarify that we are NOT in agreement that recalling his inappropriate.  I believe recalling his is both appropriate and necessary.  But I recognize the conundrum raised by Stewie, that doing so may in practical effect–create a separate standard for GOs not applicable, generally, to the Average Joe.  And as one who hates disparate treatment, I am loath to find some semblance of equitable balance in a “two-wrongs-equals-a-right” situation.
     
    I apologize for being unclear on those points.  My verbosity is a problem with clear communications–I know.  It has long been a problem.  But I write how I write and attempt and hope to improve with each endeavor.
     
    Thanks for the question….

  45. stewie says:

    I say in all seriousness, your concise assessment of my position is fairly accurate.  It is a two wrongs situation in my book.  I like this new, concise version of RK3!
     
    Having said that, I’m not strictly advocating a one size fits all standard.  I DO recognize the other side of the coin, that with great power/rank comes greater responsibility.  I don’t think recognizing that other side IS disparate treatment.  But, I see both sides, and I have great distaste for the idea of recalling ANYONE from retirement for things like adultery, or a general 133/134 type offense.  Particularly when the gravamen of the offense is being dealt with by the feds.  That the feds are giving him a light treatment? Well, that’s an issue to take up with the Justice Department I think.  It’s not a reflection on the military justice system at all.

  46. wowzers says:

    RK:  
    I continue to stand by my comments and opinions.
    I know you didn’t offer the surrender thing as counsel, but you know he has counsel and you know that’s not going to happen. So, what alternatives does that leave? DoD must take action in this case. The leadership quotes are nice but Petraeus left those behind (particularly if you believe what AnonymousJA said, and I will add to his comments by saying it was known Petraeus always seemed to have an attractive female on his staff).
     
    My argument was not tortured or mental gymnastics. I got a chuckle out of that. You offer that Petraeus should surrender and volunteer for the big green hammer, you dip out several flavors of immunity, and then want to ask me about practical and realistic solutions after I provide facts, cases, and figures. You and Stewie tried to justify a concept / course of action that is not supported by facts, by regulation, by military justice principle, or by formal precedent. Your only means of support is the status quo. It seems you expect your own brand of Chevron. Or maybe it’s me that is the great unwashed for not understanding your terms of art, to borrow from the most recent defense of the ACA. 
    I didn’t say Stewie should be eviscerated by the ABA or something. I’m talking about this issue, about impact upon discharge and the resulting statements that stem from his perspective. That’s not personal. I have no issues with his practice of law, his credibility in other discussions on this forum, etc. Such a declaration should not be required but when people look at things personally, this is the result. 
     
    Credibility is a valid issue to discuss. You and others have, repeatedly, given opinions about credibility (reference discussions about Congressional members and tinkering with the UCMJ as a refresher). It is, in no way, a personal attack. Credibility is not intelligence or integrity or morality. 
     
    The primary issue is Petraeus in the context of military justice. Nothing here has changed my position on that issue or any we have discussed. Failure of the DoD to address this issue is to take the easy wrong over the hard right, will lessen the esteem of the military justice system, further erode confidence in senior leaders, and continues a tiered system characterized by injustice more than justice. The system in place allows for action. It is the people affiliated with the system that constitute the primary obstacle here. 
     

  47. wowzers says:

    Stewie:
     
    1. I don’t claim to know anyone.
    2. These are not personal attacks. 
    3. It’s funny you said words have meaning given the ACA case right now. The govt.’s counsel would disagree with you. 
    4. I’m not complaining. I’m stating I don’t expect discussion and dialog. So far from your latest response, I’m correct. 
    5. Credibility discussion is not castigation. As I mentioned above, reference the discussions here about Congress and the UCMJ as well as many others. I suspect some members of the legislative branch would have had some pointed responses in those discussions. Perhaps you’re upset because this is a two way live fire.  
    6. I and others have pointed to the severity of Petraeus’s actions and the justification to recall him and for the DoD to take action here. Your only response is that most people are not. You’ve offered not one item to show how the interests of justice, or how good order and discipline are positively affected by adopting your position here. You may think I and others have not offered much but you’ve offered nothing. More math to follow.
    7. As for purging and time in service, find out how many are kicked out with 18 (or any other number) years in and give us a tally of those of senior rank and those not of senior rank. I’ll do half of it for you: those with senior rank tally at zero. When you talk about perspective or distorting an argument and half of the equation involves the quantity zero, the numbers speak louder than any argument you make. 
    8. I guess it’s going to get “personal” again if I point out some facts, but in talking about rank at retirement, I don’t think you have a solid understanding of each branch of service. The USMC can be difficult to make rank, partly because they ‘roll down’ some of their positions such as a platoon sergeant in the Army is E7 but in the USMC it’s more likely an E6. The Army’s first sergeant is the USMC’s Gunny, E7. In the Navy it can be very, very common to retire at E6 and have had a good career. The Navy is horrible at manpower planning and will allow jobs to be overpopulated to extreme amounts. In the Army you’d find it normal to be an E5 by 3 years but in some jobs with the Navy you may find it mathematically impossible to be E5 at 8 years. The next time you have a client that is an E6 and you wonder why he / she is “still and E6”, some digging rather than some assuming may be helpful.
    9. Don’t give me too much credit. I didn’t do anything clever. I used representative examples from the two population subsets at play. The dichotomy here is senior rank v. all others. You over think it and still don’t help your case. As I mentioned above, one half of your equation always has a zero. Even if you go to great lengths to stratify your population, each time you create a comparison, for each having senior ranks you will have to place a zero there. 0/x = 0 and x/0 = infinity. You can’t make sense of either equation in this context. 
    10. I don’t believe you want to defend the system. I believe you don’t understand all elements of the system. If you are defense minded then you are hurting your clients by not advocating that Petraeus be held accountable by the DoD. He’s earned it. It’s not witch hunting and it’s not a crusade. We don’t need to make an example of any senior rank. Their track record of misconduct speaks for itself. Your comments show a systematic bias toward more favorable outcomes for senior rank – you may call it a practical acknowledgement of how things work. It is a bias in your thinking, nonetheless. Until panels and CA’s regularly face decisions of punishment for senior ranks, there will not be an equitable justice system in the military. Look at the arguments trotted out in the Sinclair case: losing retirement punishes his wife and sons. Is there any evidence such arguments have gone in favor of that E6 or E5? You’re going to say yes because you’ve seen it in this case or that case (we can both cite a case here or there, can’t we?). I’ll point out cases where that argument didn’t help. Great. So I bring up creditable service and things get murky, as you’ve got combat v non-combat time and so forth. You talk about leadership and I ask you to compare an intel officer spending most of his career with no leadership time and I ask you to compare that to an E5 that established overwatch points, observation posts, and lead soldiers in combat, and the waters get murkier still. After a bunch of iterations we end up saying we should apply the law, the principles of justice and fairly, and equitably adjudicate all cases. That is not done now. Until it happens, there will be a tiered system and your clients suffer for it.

  48. k fischer says:

    Wowzers.
     
    Wowzers, that was a lot to take in.  Don’t know if I want Petraeus brought back onto active duty,  but I agree with the point you and Timmy make, which is if we are going to kick out lower ranking Officers and enlisted for getting a DUI in the name of force reduction and saving taxpayers dollars, then perhaps we should bring back on active duty those who are making some pretty good bank on retirement to try their cases and really enforce an equitable distribution of good order and discipline and reduce the taxpayer’s burden.
     
    I can’t tell you the number of clients I represented who were charged with a very questionable crime and the Government offered a Chapter 10 like it was a gift.  You raise a valid point that too many JAG Officers treat a lower enlisted’s career with a lack of meaningful consideration.  They see misconduct and they tell the command to separate the Soldier for a serious act of misconduct with a General Discharge, so the Soldier who has less than six years doesn’t get a sep board.  So what?  At least he didn’t get a punitive discharge.  But, getting kicked out of the military can really mess with a young man’s head.  
     
    They don’t understand that when that Soldier with a DUI gets kicked out, he has no job, no College Fund, all because he did something that most people who have drank have done, but they didn’t get caught.  At some point, I would venture that most prosecutors will be required to take a case where they are a hypocrite.  I know I did, and even though the case was a “win”, I still view that case as a huge personal failure.  As for flying the Jolly Roger after full acquittals, guilty and childish as charged. 
     
    So, rather than even the score of all the lower enlisted getting screwed by bringing back who I still view as a great American so he can gets screwed just the same, I would recommend lifting the boot off the neck of some of those lower enlisted guys.  
     
    On the flip side, is there a difference between Ms. Manning and Gen. Petraeus, other than that whole gender confusion thing? Both gave out what I assume to be classified material, but one guy got caught and got 35 years and the other didn’t get caught until after he retired.  35 years confinement sounds like a pretty serious crime to me.  Still, I wouldn’t want to be the one sitting in the TC’s chair with the name Petraeus on the opposite side of the v.

  49. stewie says:

    Unequivocally, undoubtedly there is a massive difference between the two in multiple ways and on multiple levels.
     
    So you are advocating we should give GEN Petraeus 20-30 years in prison??
     
    And, you are comparing someone getting a GOMOR for DUI (which in my experience doesn’t lead them to getting kicked out directly, but obviously if filed in their performance fiche kills their further advancement) with calling someone back from retirement? This is the comparison people keep missing.  The situation to compare is retiree to retiree, not retiree to junior enlisted/Officer.

  50. wowzers says:

    Stewie: during RIF, a GOMOR is almost certainly a prelude to getting kicked out. It spurs the authority issuing the GOMOR to order Show Cause or will prompt someone like the G-1 at Army to order one once it hits the system. Track the statistics (if the DoD gives them up) or look at the anecdotal numbers. The only GOMOR I know of that did not result in Show Cause was during the major period of the GWOT when RIF was not even on the table yet. GOMOR’s should be eliminated entirely from the military. See write-up here for info from someone other than me: http://www.avvo.com/legal-guides/ugc/reprimands-the-armys-dirty-little-secret
    As for ending advancement, that too should go away. A GOMOR requires less effort than a counseling statement (we all know the issuing authority isn’t writing it, as opposed to a counseling statement), requires no proof, and carries devastating consequences. It’s the military equivalent of the Salem witch trials. 

  51. k fischer says:

    Stewie, 
     
    No, I’m not.  I think it would be an injustice to throw him in jail for one day.  Obviously, sharing classified documents with WikiLeaks who will most likely disseminate the info against US interests is different than sharing black books containing source identities and other top secret info (if that is what happened) with your mistress who probably won’t disseminate info against US interests.   
     
    My point, trying to see the other point of view, is that both actions are still a violation of the UCMJ.
     
    And in your comparison from retiree to retiree, there are very few examples if any of someone getting recalled onto active duty to face an adultery charge.  But, that is only because the facts surfaced post retirement.  Wowzer and Timmy make the point that guys get kicked out of the military for adultery because of the drawdown.  Hell, I had a CPT who violated GO1 by drinking face an ad sep board that voted to kick him out with an OTH.  Johnny Cochran couldn’t have convinced that Board to retain him or let him out with an Honorable.  So, why should Petraeus get off because he got to retire before he got caught?
     
    My point is instead of kicking Petraeus in the balls, then why not take it easier on these junior guys?  Why should they get kicked in the balls, too, when a 4 star doesn’t face the music?
     
    Which led me to Wowzers’ point regarding how subjective the UCMJ is based on the JAG and/or the chain of command.  Usually, the Soldiers going to TDS for adsep counseling are through with the military by the time they got to me.  But, there were a minority who really wanted to continue to serve.  It was heartbreaking to hear those guys’ stories of why they joined the Army, what they did, and why they wanted to stay in, then tell them to put it in a letter, which would not keep them in.
     
     How many times did I recommend preferral of a charge in order to get a Chapter 10 from the Defense, so I could get the OTH without going to an adsep board?  How many times did I see that as a Defense counsel?  How many times has a TC recommended for a Soldier with less than 6 years that they get separated for adultery with a General discharge because there is no board and it is easy to get rid of the Soldier?  I get calls from Soldiers facing adsep with less than 6 years and a General discharge, and I tell them that I don’t want to take their money.  I tell them it would be better for them to write a letter to the CG and save their money to hire Bill Cassara to try to get their discharge upgraded.  These are actual people who make the same mistakes as a 4 star General, but their consequences are far worse.  Why?  Well, he retired before he got caught.  Meanwhile, here we are Judge Advocate minions who do the command’s bidding because we are trained to effectuate their intent.  How many times have I and other TDS counsel thought, “Look, its pretty simple.  You smoke pot, you get separated.  It’s in the reg.  Write a letter to the CG.  Now if you will excuse me, I have a rape trial I am working for an innocent Soldier who was falsely accused that will be going to trial next week.  Be thankful you aren’t that guy.”
     
    So, while I agree with your contention that it would be ridiculous to Petraeus off retirement to face a one spec adultery charge, I understand the position of the other side.
     
    I understand their position like Chris Rock’s understood OJ in his “Bring the Pain” tour:
     

    “So you gotta think about OJ’s situation: $25,000 a month, another man drivin’ his car, f***in’ his wife, in a house he’s still payin’ a mortgage on. Now, I’m not sayin’ he should have killed her…but I understand.”
     

     

  52. RKincaid3 (RK3PO) says:

    Wowzers said:
     

    GOMOR’s should be eliminated entirely from the military. See write-up here for info from someone other than me: http://www.avvo.com/legal-guides/ugc/reprimands-the-armys-dirty-little-secret

     
    Well, not disagreement from me on that.  But in case no one has noticed, the trend towards punishing people WITHOUT the burden, expense and dare I say it, the objective fairness of trial where one is presumed innocent until proven guilty, is culturally widespread.  How often do we see reports that discuss how bad people get away with bad things and we can’t touch them, so everyone cries “there must be another way.”  A way outside of the justice process, of course.
     
    Look at how college campuses respond to sex assaults now–no due process–or kangaroo-court-like due process, via an administrative procedure that is designed to guarantee a particular result–and which are getting them sued in court–rightly so.  Look too, to the mess that is Art 120 and the 2007 to 2014 NDAA amendments and tell me that Congress isn’t also on that bandwagon.
     
    Who amongst hasn’t heard a person scream “kick him out NOW” even though legally, the Soldier or person at issue has not yet been convicted but has only been accused?
     
    No, this phenomena of “accountability” at any cost is and has always been the bane to civilization and liberty.  Without high bars to criminalization, the individual is always at the mercy of the majority making laws.

  53. stewie says:

    I don’t have a problem with “taking it easier” on the junior guys…my point is you don’t solve THAT issue by taking extraordinary action against others out of some simplistic, and misguided sense of “justice.”
     
    And again, it’s still pretty rare for the board you described.  I’ve seen boards quite reluctant to kick folks out particularly with an OTH unless it was at the level of multiple hots (or a single hot for cocaine or one of the harder drugs).  As you say, it’s a minority.
    I understand the position as well, I’ve said as much.  It’s their solution that I, and apparently you, don’t agree with.
     
    And no, GOMORs should not be removed from the military.  They should be used MUCH more judiciously, and commanders should be more loathe to place them in the OMPF, or perhaps there should be a higher standard for placement in the OMPF.  Neither are they easier to do than a counseling statement.  You engage in hyperbole quite a bit.  And yes they do generate show cause boards for promotion boards or command positions (and sometimes for schooling opportunities).  I’ve gotten/seen quite a few folks retained at such boards, so it’s not an automatic path to being kicked out.
     
    But what’s your solution to minor misconduct? An AR 15 can be filed in the OMPF as well.  Should we get rid of those too?

  54. wowzers says:

    The characterization of service is not relevant. The panel elects that on their own, after they’ve decided to eliminate. 
    GOMOR’s are absolutely easier than a counseling statement. You must understand the hand-waving and rubber-stamping that goes on up and down the command channels. I’m trying to understand your perspective better and I’m thinking your exposure in uniform is as a JAG and not as an officer outside of the JAG environment. Nothing wrong with that, I’m just trying to see where you’re coming from, and I’m not asking you disclose anything at all and prefer that you don’t. If that’s the case then I can see how you may feel a GOMOR takes more than a counseling statement. However, it’s the opposite. The issuing authority does not have to rely on proof of any sort, he/she does not prepare these documents, does not sit down with the person receiving them to read it or issue it, and there is nowhere to go if the receiving party doesn’t agree. To add insult to injury, I’m guessing a good number of these are signed with the auto-pen, and not even in person. Also, a GOMOR is a ‘flag’ that pops up on someone’s record. I’ve spoken to branch managers, if they see one, the record is referred for more rubber-stamping and show cause ordered and if promotion boards see it, it’s a flag and automatic ‘do not promote’ computes in their minds. GOMOR’s are the lazy way, and the easy way, to institute injustice. 
     
    A soldier can go to the BN level, for instance, when a counseling statement at the company level is jacked up. No option like that for a GOMOR. A company commander faces the prospect of looking like an idiot to his rater if he throws around counseling statements with no justification or evidence. A GO faces nothing. Don’t pretend the steps in the process make a difference, as they don’t. Also, consider what happens when a company commander wants to chapter a soldier for patterns. A copy of the counseling statements go up to the legal officer. Those counseling statements actually receive scrutiny. Not much, but some. JAG will tell that Cdr they don’t have enough. No scrutiny like that is applied to GOMOR’s. Once signed, that’s it, and no JAG is going to tell a GO to refrain if the command has decided they’re going to get someone or when outside pressures mandate that they do ‘something’. 
     
    The further the distance is, from the service member to an issuing/decision authority, the easier the process. Some additional pieces of paper and routing slips do not provide obstacles to the end result. It may be more work for you and your client, but not for the military. Even if a service member asks to see the GOMOR authority, that service member must battle against paperwork that has been chopped by as many as four levels of command, none of which must answer to questions about veracity or justification. Next time you have a client with a GOMOR, try to ‘cross examine’ the chain and see how far that gets. It’ll go nowhere. You could even demonstrate factual inaccuracy and if they want the GOMOR signed, it’s going to be signed. 
     
    Hypothetical minor misconduct: suppose a junior officer can’t figure out how things work in the motor pool, like safely ground guiding vehicles. Let’s say he/she is told about it, blows it off, continues to be a moron about it. Let’s even say the officer causes two vehicles to collide causing $500 in damage. The answer is not a GOMOR. The answer is a counseling statement from the senior rater (or equivalent), financial investigation and statement of charges to pay for the damage, mandated training, appropriate language in the next evaluation, attachment of the counseling statement / investigation /  damage costs to that evaluation and a well earned recommendation that the officer not be promoted (especially if eligible on the next cycle). Subsequent evaluations should annotate whether the officer is squared away and whether or not to promote. If he is, then it would appear that corrective training is a pretty good system after all. If the problem continues, if there’s another incident, or if the officer can’t pass some sort of competency test on this issue, then the chain of command has a pattern, assessed quantitatively, objectively, and it can be packaged up to the GOSCA for recommendation on a board. GOMOR not needed. Following this pathway, those evaluating this officer in the future will see exactly what he struggled with and will also have confidence that he overcame that issue, and long term damage will be greatly mitigated not to mention actual justice with proper evaluation of relevant factors will be done. Also, with what I’ve outlined, the same would apply to an article 15, except the service member now gets a chance to opt for court-martial. 
     
    As the system currently sits, it’s not uncommon for that to result in a GOMOR. There won’t be any promotion in the future. Career is over. If things go as you say and a board ends up with the officer being retained, that person’s career is dead-ended. He will be looked at as guilty or inferior and will not get good duty assignments etc and will be lucky to make it to retirement before being a two time non-select. No one will ever read the GOMOR, they’ll only see that there was one, and that’s the end of it. And, the presence of the GOMOR will carry more weight than a decision to retain at a board. It’s literally a scarlet letter(s).
     
    You seem to assume GOMOR’s to be for minor misconduct. They are used for anything and everything a command wants. They are commonly used when major misconduct is suspected yet there is no proof. It’s a kangaroo court. The command asks, “How can we get this person?”. The decision to “get” that person has already been made. GOMOR’s allow them to do it without anything to substantiate the action. 
     
    You say they should be used more judiciously – that’s great, but there is no mechanism in place and no way to effect that change. You have a mechanism whereby you (as good counsel) are totally unable to compel the signing authority to relent, no matter the facts you present, the mitigating circumstances, regulation, law, or anything else. Even if you win by appealing them, which is a lengthy, imprecise, and mostly unsuccessful process, the damage from them will likely be done before you can complete that process. Getting rid of them is the only way. 
     
    There are no redeeming qualities to the GOMOR system. 
     
    My humble recommendation is that you take the skepticism you have about me and apply it to the integrity with which miljus processes occur. 

  55. k fischer says:

    Wowzers, 
     
    You sound like a former Commander who called me out because I recommended a GOMOR vice an Article 15.  My logic: “Sir, he can turn down an Article 15 and demand a Court-martial.  I’m not taking an adultery case to court martial.  So, a GOMOR is a much easier process to notate his misconduct without him thumbing his nose at the Command and saying, “Court martial me.””
     
    His reply: “Sounds like a really wuss way to deal with this.  We either punish him because he committed misconduct and let him have a hearing or court martial if he demands it, or we do nothing.”
     
    And, he was right. 
     
    But, I disagree regarding “no redeeming qualities” to the GOMOR system.  GOMOR’s are good for at least one thing: noting minor misconduct dealt with by civilians, either Federal or State, when there is a conviction.  At least the Servicemember was found guilty in that instance and doesn’t suffer a subsequent Article 15 or Court-martial.

  56. stewie says:

    He also sounds like someone who doesn’t realize people do things more than one way.  He uses a lot of absolutes and yet I’ve sat down with a client who met with the CG concerning his GOMOR.  I’ve known CGs who actually did personally read the GOMOR to the effective people, and of course as a COJ I’ve seen exactly what goes into preparing a GOMOR and as an officer and an NCO I’ve actually written a counseling statement.  The idea that every CG wakes up, autopens a few GOMORs, and goes back to sleep is a bit off in my experience.
     
    The only scrutiny counseling statements receive for patterns of misconduct Chapters are the “magic language” that they have to have, which is at this point pro forma.  Have the magic language, and the counseling statement passes muster. It’s pretty perfunctory at this point.
     
    I’ve never seen a GOMOR for an minor accident.  So in my experience your hypo doesn’t happen often.  The VAST majority of the 100s of GOMORs I have seen have been for things like DUIs, adultery, minor drug use, and the like.  I can count on one hand the number of times I’ve seen GOMORs for something to the level of a minor accident or otherwise where I thought it was too big of a deal.  A lot more stuff gets addressed at the lower levels then you appear to want to admit.
     
    I have enough skepticism both for you and the system, I can use it on both and still have enough left over for the viability of a Ghostbusters reboot.

  57. stewie says:

    affected, not effective.