The Military Justice Review Group (MJRG) is an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. I discussed the creation of the MJRG in this post. As an internal working group, the MJRG’s meetings and deliberations were closed to the public. However, the MJRG just released its first report, proposing major legislative changes to the UCMJ.

The report is 1,302 pages long, and is available here (pdf). A press release summarizing the major proposals is available here (word).

Additional materials are available on the MJRG’s website, here.

39 Responses to “A brief interruption to our countdown: MJRG releases its legislative proposal to reform the Uniform Code of Military Justice”

  1. stewie says:

    Boy ton of stuff in there..some good, some indifferent, some bad. I thought there was going to be some recommendation of a crim law track? Guess not, but some of the recommendations in there you almost can’t do without a crim law track.

  2. Charlie Dunlap says:

    I’ve just scanned the summary, but there seems to be much to like about the legislative proposals.  I suspect that there will those opposed to judge-alone sentencing, but I really think the time has come for this, as the process – done correctly – requires expertise that panels very rarely possess.   The proposals for an ability – pre-referral – to resolve issues is long overdue. The transparency aspects are also great ideas.  I’m looking forward to reading the full document, but it really does look like a great effort.

  3. LLOD says:

    I was fully prepared to hate this report. Based on the summary, I could live with this being enacted. Some of it is sorely needed.

  4. Bravo says:

    good, but need to either abolish the CCAs or have one unified CCA

  5. Concerned Defender says:

    Under the guise of “Enhancing Fairness and Efficiency” it’s just more and more “victims’ rights” baloney.  Where, exactly, are “victims” not being allowed fairness or participation?  The services are practically believing any tall tale, dragging the victims along at every stage, paying their way, giving them counsel, blocking them from pre-trial interviews and testimony, flying them all over the world with per diem, certainly they have the opportunity to participate and give impact statements throughout, and then giving them VA disability for their PTSD and disabilities from being groped once at a party 3 years ago….  Not exactly sure which “victim” isn’t getting a chance to play ball at this point… 
    In reference to the standardized number and % of the voting panel, I agree.  Let’s be more like civilians and do 100%.  I’d LOVE to see this.  In reality it likely will be a simple majority.
    I do like the separate sentencing considerations, which makes it also much easier for the appellate courts to grant appropriate relief. 
    Article 121a: Fraudulent use of presumably government travel card, unless they are referencing to identity theft?  Not sure, but if it’s the GCC then I have an issue with this, and always have.  It’s a MANDATED travel credit card, under the Service Member’s credit score for which he/she is responsible for.  Never been comfortable with the notion of it being a crime to use your own credit card.  If it’s meant to be a crime for using stolen or misusing one’s one card, akin to passing a bad check, then just alter that Article to include dishonorable use of CC, like a bad check. 
    Article 120.  So badly bungled of a law that it needs to be streamlined, simplified, listed as sub-crimes (120a, 120b, 120c, etc.) for simplicity sake, and remove the absurdities of application (the famous example of a pie thrown into a clown’s face is a sex assault if the pie gets in his mouth).  Let’s just make an easily understood and useable law.  And perhaps remove the implication that men are guilty and women are innocent by virtue of sex…  lol.  I think I read that somewhere once, but it doesn’t seem to stick in 120 when there’s an allegation.
     
     
     
     
     

  6. CDR X says:

    Many of the changes are good, but I feel this is a missed opportunity to strengthen the disciplinary authority of commanding officers, which is a feature of the system, not a bug.  I’d love to see the right to refuse NJP abolished and/or the max punishments increased.  I’d also abolish the right to refuse Summary Court-Martial for those embarked on vessels.  I’d also like to see more deference given to command operational schedules in the scheduling of court proceedings.  Military judges seem completely disconnected from the impact their rulings have on operational units.  I don’t think that’s what Congress intended in 1950.

  7. Christian Deichert says:

    So far I’m on board.  I’m especially glad to see the clarification to Article 12, which was designed to prevent troops from being confined with EPWs, not to give credit to pretrial confinees who were mixed in with foreign nationals at the local DOD-contracted jail.
     
    Judge-alone sentencing in non-capital cases?  Shazam.

  8. Christian Deichert says:

    p.s. Since they are proposing another change to Article 43, I will propose a change to the new edition of the MCM: just like the 2012 edition included the previous versions of Article 120, the 2016 MCM needs to include all previous editions of Article 43, so we have one-stop shopping on what version of Article 43 applied when.

  9. Zachary D Spilman says:

    I think what we have is exactly what Congress intended, CDR X.

    Consider:

    Correction and discipline are command responsibilities in the broadest sense, but some types of corrective action are so severe that under time honored principles they are not entrusted solely to the discretion of a commander. At some point, he must bring into play judicial processes. It is his responsibility to select the cases which he things deserve sterner corrective action than he is permitted to impose by himself. . . .

    Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to day that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice, and in fulfilling this function it will promote discipline”

    -Report to the Secretary of the Army by the Committee on the Uniform Code of Military Justice (18 January 1960) (the Powell Report), at 11-12 (available here).

    Also:

    By careful design, Congress structured the court-martial system to ensure that, with the single exception [of personnel embarked on ship], no member of the armed forces may be punished in any way for violating the Uniform Code of Military Justice without an opportunity, first, to demand a judicial trial at which that member statutorily is guaranteed representation by detailed military defense counsel.

    United States v. Kelly, 45 M.J. 259, 264 (C.A.A.F. 1996).

  10. CDR X says:

    I completely agree with all of that, but I still think we’ve missed an opportunity to address the underlying reasons why commanding officers are increasingly turning to administrative vice judicial remedies for misconduct.  I believe many commanding officers have lost faith in the ability of the military justice system to serve the interests of discipline in a timely manner, and that if this trend continues, we will ultimately lose the system entirely.

  11. Concerned Defender says:

    I recognize the limits of my personal knowledge and experience, but I’ve NEVER observed where a Commander and his SJA did not have authority to administer justice.  Heck, between the ramrod of administrative, NJP, and Courts Martial, leadership can pretty-much ruin a Service Member’s career – even the innocent ones.  Commanders have broad, overused, and overlapping tools.   A GOMOR, Clearance Removal, Negative Counselings, layers of reprimands, relief, bad OER, NJP, Admin discharge, Court Martial, and a lot of other creative tools.  
    I have an innocent client who was hit with no fewer than three layers of various permanently filed career ending reprimands, dropped from a professional school, didn’t get the Bronze Star equivalent award he had earned in that timeframe (unrelated to the alleged misconduct), denied of significant due process at multiple turns by the SJA, TC, and his leadership, and a host of other things.  And the sad part is that it was based on 2 hearsay allegations.  One was unwitnessed and unsworn and totally unreliable written statement, and the other was a misunderstanding that was recanted by the alleged author years later…
    In another instance, after a full acquittal, the SJA hit the accused with a careen ending GOMOR in a sour grapes move.  So, yeah, never in my career seen a leadership team that failed to extract a pound of flesh from a Soldier. 
    I’d prefer the restoration of a few rights of the Accused, frankly.  Balance the scales of justice abit by providing TDS with some more resources, restoring the fairness of the Article 32, making a strict scrutiny review if the 32 comes back as unfounded, requiring a strict legal finding by the SJA in a written memo that supports with strong legal reasoning to proceed with trial.  Yes, even in the Bergdahl case.  
    I’d also love to see language that offers for some “reach back” to the SJA and Trial Counsel if/when cases are overturned to hold them responsible for any and all poor legal decisions/actions.  We’ve see far too many “off the reservation” situations where the SJA office is a bunch of children hiding evidence, playing unfair, etc.  I’d really like to see some function of automatic censorship toward these folks when the ACCA or CAAF finds their prosecution unfounded/unwarranted or their actions unbecoming.  This incentive would foster a bit more serious approach to throwing Joe under the bus, hiding evidence, manufacturing cases, etc. 
    One problem desperately needing addressing is the disposable nature of PTSD Soldiers.  I’d like to see some mandatory judicial review apart from the Convening Authority and SJA to review all cases of Involuntary Separation for any Soldier diagnosed with combat related PTSD.  Far too many PTSD Soldiers are kicked out with no benefits, and that is a travesty.  If there is a finding in favor of the Soldier he is given a host of options from a voluntary separation with an Honorable Discharge and benefits, to a transfer or PCS move elsewhere/WTU to pursue an MEB.  

  12. Defense Wizard says:

    Judge Alone sentencing in panel cases would revolutionize the logic behind forum selection guilty pleas. Long overdue.

  13. Saul says:

    CD – while I agree that there should be some process to reach back to the SJA and trial counsel for hiding evidence, playing unfair, etc, I don’t know that I’d support censorship or whatever for “poor decisions”.  Assuming you don’t simply mean the growing pains young trial counsel go through, tactical errors, we’re probably on the same page and frankly I was surprised when a senior JA told me there wouldn’t be repercussions for a few of the unethical manuevers made in the last couple years. 
    Completely on board with better resourcing for TDS. I’ve never been a defense counsel but some of the issues I’ve heard of are surprising.  At least the current GOs in the army JAG corps mention how important defense counsel are and the need to provide our best captains and paralegals to TDS. 
    your phrase “the SJA hit the accused with a career ending GOMOR” after acquittal is quite troublesome. 
     
    CDR X – agreed completely, especially when it comes to senior officers and NCOs, it’s so much easier to issue a reprimand with weak evidence that it’s become SOP as a fall back option. 
     
    Really like judge alone sentencing. Just my experience but the panels I’ve seen are (in my opinion) overly harsh, especially from the operational units.  When a former panel member told me the panel would go “tough” on a sentence to discourage the use of the panel in the future, the conversation did not exactly endear me to that commander.  He did mention that the same panel would not convict unless “absolutely convinced the soldier committed the crime”    (and people wonder why the argument for removing courts martial from the chain of command has support.)

  14. stewie says:

    Wait, we are blaming the fact that courts-martial are not quick and simple for GOMORs based on “weak evidence?”
    If CMs were lightning-fast and easy, you’d end up with an acquittal if you had “weak evidence” would you not?
     
    Maybe don’t do the GOMOR at all if you have “weak evidence?”
     
    I concur that Panels are…fickle…but that can inure to the benefit of the accused. I think having the panel for merits and the judge for sentencing will most likely benefit the accused in most cases so this is probably a net positive for defense.

  15. k fischer says:

    I really don’t like GOMOR’s.  They take about as much time as an opine to title somebody with an offense, but have some really big negative ramifications.
     
    As a civilian, I had a case dismissed after arraignment, and the SJA had the CG put a GOMOR in my client’s permanent fiche.  He ended up retiring after 20 years because of it.  I had another case as a TDS counsel where my client was acquitted, and I heard the Government was going to impose a GOMOR for conduct they could have, but failed to, charge him with.  My SDC (best.boss.ever) called the CoJ and told him that if they did anything to my client, then she would unleash me.  They did nothing to my client.
     
    Thankfully, most SJA offices are not like that, but the ones who are really don’t represent the United States well.  I’ve lived in Columbus since 2002 and I’ve seen two offices out of seven and one SVP who made me think military justice was an oxymoron at Ft. Benning.

  16. stewie says:

    kf, you are an SJA. You believe the accused is guilty of offense X. Despite your TCs best efforts, he’s acquitted at trial.  Maybe it was a decent case, but not quite enough to get to BRD. Maybe your counsel messed something up.  Or maybe the panel just got it wrong.
     
    Are you telling me if the CG came to you and said, what are my remaining options, that you wouldn’t list a GOMOR as one of those options? That you wouldn’t tell him it has a much lower standard of proof and thus you can be acquitted at a trial but still receive a GOMOR, because one does not automatically invalidate the other?
     
    I seriously doubt that.  I concur that the GOMOR process can and is abused. Adultery is a huge one where the GOMOR becomes simply you had sex while married with little to no focus on PGOD or SD.  But methinks you paint with too broad a brush.  My experience is that CGs at least take their time in considering whether to give a GOMOR or not, and where to file it…but maybe I’ve just been lucky, I don’t know.

  17. Concerned Defender says:

    GOMORs are so wildly abused.  Many, many times I’ve clearly pointed out how fatally flawed a 15-6 or other investigation is and to my dismay even a flawed investigation which didn’t follow the rules or denied my client fundamental fairness is ignored, and the GOMOR filed.  Or here’s another one, on an ARREST for a DUI, a GOMOR is issued and filed long before the case even sees a courtroom.  
    So, getting ARRESTED is enough for a GOMOR?  This is fundamentally not right.  We defenders have all had clients wrongfully arrested and wrongfully charged.  But apparently a person loses his/her career on an arrest…  Just. Not. Right. 
    If I was the CG’s adviser, it would be my duty to advise him of fundamental fairness.  Maybe.  Just maybe.  He.  Didn’t. Do. It.  
    Looks can be deceiving.  I’ve got a totally innocent client right now with adultery allegations because she was comforting a male friend going through a divorce.  Everyone assumes they had sex, in spite of both of their consistent denials, and their 35 years of combined impeccable service records.  Both now have permanently filed GOMORs and ruined careers and the punitive impact is two lost multi-million dollar retirements.  Why?  Because the vindictive crazy abusive spouse of the male has gone to everyone except Santa crying foul – if you only knew the harassing, assaulting, vindictive measures she’s taken it would shock you.  The investigation was so one-sided and lopsided it’s staggering how anyone could even begin to think it’s legally sufficient.  All points fallen on deaf ears with the SJA ….  Unbelievable.  Apparently a man and woman in the United States Army cannot have a platonic friendship.  What’s going to happen when gay men are friends?  Are they deemed lovers too?  Really going to be screwy when transexuals are friends… going to throw the military for a loop with panic in handing out GOMORs. 
     

  18. k fischer says:

    Stewie,
     
    Wow.  I just assumed that AR 600-37 would prevent a GOMOR from being placed in an Accused’s permanent fiche for conduct in which the Accused was acquitted, or would require removal if the accused was acquitted after filing.
     
    So, why not just give a GOMOR when charges are preferred for the conduct making up the charge sheet?  That way the panel can see that the accused has negative information in his fiche at sentencing, or if the accused is accused of a non Article 120 offense and attempts to get in some good soldier evidence, so that the panel can see that the Convening Authority believes the guy is guilty.  

  19. Phil Cave says:

    Assuming you don’t simply mean the growing pains young trial counsel go through, tactical errors, we’re probably on the same page and frankly I was surprised when a senior JA told me there wouldn’t be repercussions for a few of the unethical manuevers made in the last couple years.

    Worth the read.

    The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.

    (emphasis added.)

  20. k fischer says:

    Phil,
     
    I can see that.  The JAG Corps has a tendency to throw TC’s into the game pretty early.  I was a TC within 13 months of graduating from my basic course.  Thankfully, I had four really good mentors who were highly ethical as my SJA, DSJA, CoJ, and STC because, looking back, I can see how easily I might have gone the other way had I not transferred to the Infantry School Instructors job when the incoming SJA, CoJ, and STC replaced them at Benning.    
     
    In other words, it’s like I was trained by Obi-wan and Yoda as a young TC, got sent to Dagobah, then returned to TDS to destroy Darth Sidious when my ways in the force grew strong.  Had I been lured by Sidious like Anakin was early on to the dark side, then I might have killed some younglings.   On the other hand, I still have my Pez dispenser and Vader Christmas ornament I got as Christmas gifts from my TDS colleagues, which I proudly display in my office on each side of my coin rack.  And, Vader did ultimately kill Palpatine.  Meh….who knows……

  21. stewie says:

    kf what is the standard for GOMORs? Are you proposing a BRD std for them? I assume no, yet you propose they should be destroyed if the same conduct isn’t found guilty BRD at trial. Square that circle for me please.

  22. k fischer says:

    Stewie,
     
    Administrative separation boards have a preponderance burden. No Soldier should face administrative separations  when a judicial proceeding for the same conduct results in an acquittal.  AR 635-200, paragraph 1-17b(1) says:
     
            b…No Soldier will be considered for administrative separation because of conduct that—
                     (1) Has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof.
     
    So, if the GCMCA cannot consider separating a Soldier for conduct that was the subject of a judicial proceedings that resulted in an acquittal where the two proceedings have differing burdens of proof, then I don’t see why the Army cannot put into AR 600-37 a similar prohibition taking into account the different burdens of proof for letters of reprimand. 
     
    Can you explain that policy difference, or in your venacular “square that circle” for me, Hero? 
     

  23. stewie says:

    Court-martials > Separation > GOMOR.
     
    The first two have significantly greater potential outcomes, both can get rid of retirements (the latter only for enlisted if retirement eligible).  The first has jail time, the second can affect benefits.
     
    A GOMOR does none of that, and it does not have a preponderance standard. The difference between BRD and less than a preponderance std is a pretty big deal.  The difference between BRD and preponderance is less of a big deal.  Not rocket science, nor does it involve “heroism” to figure out.
     
    So yes, I can explain the policy difference quite easily…a low level administrative punishment that is only a reprimand, that in and of itself leads to no other punishment has a different standard than a more severe administrative punishment that can result in loss of benefits, being “fired” or even for retirement eligible enlisted, result in a loss of retirement potentially.
     
    So, again, explain to me why one should treat GOMORs like CMs in this area that acquittal at the latter means you can’t do anything in the former.  Acquittal does not mean innocent, it doesn’t mean that there is no evidence, and it certainly doesn’t mean there isn’t more than enough evidence to justify a GOMOR.  The deprivation tied to a GOMOR isn’t remotely near that of a separation board, which pretty clearly explains why a CM acquittal bars one but not the other.
     
    You ignored my hypo with this bit of obfuscating tangent, care to respond to it?

  24. k fischer says:

    And another thing, apparently there is no burden of proof to impose a Letter of Reprimand.  I could make up a bunch of stuff about you and file it permanently if I was your GCMCA.  You know who has the burden of proof, then?  You do.  You have to show by clear and convincing evidence that the facts aren’t true or the imposition is unjust in your appeal to the filing determination.  This is after you have been flagged, promotions have been on hold, etc.  So, you have the burden of proof.  It appears that in the Army the burden of proof for a GOMOR is as low as you can go. 
     
    Great system you are defending there, Stewie, with your round squares, or your squared circles, or your paralellagrammed trapezoids. 

  25. stewie says:

    There is the DASEB which reviews filing decisions for GOMORs, so no, in your hypo, if it were shown that you “made stuff up” and it was the only basis for a GOMOR, then the DASEB, assuming it did its job, would remove that from one’s fiche.
     
    And you minimize the thought and advice that goes into GOMORs. It’s not as if they are actually routinely being written haphazardly and filed by whim with no thought. ANY system can be abused, and I’m sure some do. I believe GOMORs for adultery tend to be abused because the PGOD/SD part is often, or at least too frequently ignored because “it’s just a GOMOR.”  Of course, I think all but “Jodie” type adultery should be removed from our system completely.
     
    Regardless, you continue to ignore my hypo, and I can only assume because you’d be forced to admit that you would advise the GCMCA that a GOMOR would be a valid way to go.
     
    And there is always some burden of proof for administrative actions…they cannot be “arbitrary or capricious.” So yes, a GOMOR is not supposed to be either of those things, and there is a review process that looks at that, and there are judge advocates who advise on it, and while I’ve not advised a ton of Generals, thus far what I’ve seen is that they take it seriously. They rarely just sign off on either the GOMOR or the filing determination without reading it and considering it first.  The next time I send in a GOMOR or filing to my current General that he doesn’t take home and consider, or ask questions about, or read the rebuttal thoroughly, will be the first.

  26. k fischer says:

    Explain how a GOMOR doesn’t result in an administrative separation to an enlisted guy or officer who is being kicked out of the Army before retiring because he can’t make rank because he has a GOMOR in his file.  I’d call that an administrative separation.
     
    You keep saying that acquittal does not mean innocent, yet the standard INNOCENT until proven guilty keeps coming to mind.  And, double jeopardy is kind of a consideration, and please don’t waste my time explaining the difference between a criminal conviction and an administrative action because I know, I’m talking about the equity in the process, for which you are apparently clueless. 

  27. stewie says:

    Got it, so what you are also saying is that if you are acquitted, then you can’t have a bad rating on your eval too right? Because that also could result in not being promoted thus leading to being kicked out before retirement.
     
    You’d call that an admin sep too right?  Same difference. And I wouldn’t advise my CDR that you could use the mere fact of a GOMOR to initiate separation if the only basis of that GOMOR was the very thing he was tried and acquitted of. But yes, it is possible that someone could be not promoted because of a GOMOR, or a bad evaluation (or even a mediocre evaluation that doesn’t rise to the level of a referred eval).
     
    Acquittal DOESN’T equal innocent, it means one thing, not guilty beyond a reasonable doubt. It means the government didn’t meet their very high burden. It does not mean the accused didn’t do something, it means the government didn’t prove it BRD.  It’s a fine standard because it errs on the side of the guilty going free over the innocent being imprisoned/convicted of a crime.  But that’s far different from receiving a reprimand. There isn’t nearly the deprivation there, thus there isn’t nearly the need for such a high standard…and unsurprisingly, we don’t have a high standard for it.
     
    I’m not clueless about “equity in the process” I just don’t operate under the fiction that it’s the same equity regardless of the level of the process. You get more “equity” the more deprivation you potentially face.
     
    Again, you’ve set up a somewhat ridiculous hypo where it’s all or nothing. Once the government makes the decision to try someone, if there’s an acquittal, then they can’t do ANYTHING else…which of course then simply encourages the government to do the bad eval, and/or the GOMOR, prior to trial…or should preferral stop any administrative action in your mind?
     
    And you still haven’t address my hypo. You strongly believe Soldier X maltreated one of their Soldiers.  Let’s say they repeatedly punched them in the face.  But for whatever reason, the government couldn’t get a conviction at trial.  Your commander comes to you and says, I’d like to do a referred OER, and I’d like to do a GOMOR. Your response is going to be what, we shouldn’t do that, even though we could have done it before trial, not even have a trial, JUST do those two things, and no one would care, using a much lower standard of proof, but if we do it AFTER trial, then somehow that lower std doesn’t apply anymore?
     
     

  28. JMT says:

    Finding of not-guilty = time to move on.  Both for the service member and the command.  That is what you tell the commander.  If he presses on the GOMOR, you explain “can” versus “should.”  At the end of the day, it is his decision, but the SJA should be a voice of reason in the process.

  29. Concerned Defender says:

    This is an interesting debate RE administrative v. criminal sanctions.  I can see it both ways.  
    My concern is that if you look at it from the position of the accused, and let’s just say he is innocent but leadership refuses to believe it.  He will be on the receiving end of so many administrative adverse actions that it’s impossible for him to exonerate himself because there are numerous approving authorities and someone will make one stick.  So it’s as though he’s fighting 5 enemies any of whom can whimsically end his career with a GOMOR, OER, relief, clearance, etc.  And many of these come fast and early in the process, and require a year to fix on appeal.  A year is a long time given the speed with which involuntary separation can occur or even a trial.
    So it really just means that a Soldier truly has to be the perfect individual with zero defects in order to survive, especially in a downsizing Army.  
    There are three real protections.  
    1.  Reasonable Commanders jointly at the Company, Battalion, Brigade, and CG level.  That is a rarity.  Many are lions on the battlefield but in Garrison they put their careers ahead of their subordinates and UCMJ allegations come with little hesitation.  I’ve seen it and lived it through countless clients.  Showing loyalty to the guy who would save them in combat goes out the window in garrison. 
    2.  Reasonable and courageous JA Trial Counsel, Chief of Justice, and SJAs who will do the right thing.  Many are not interested in balanced justice.  They are interested in pleasing their Commanders (see above) and prosecuting actions for OER bullets and experience.  
    3.  Defense counsel.  We can only do so much.  Innocent Soldiers still stand trial and have their administrative careers ended.  I’ve seen it, and I’ve beaten a number of them.  But it’s largely on the merit and hard work of counsel, and some are just not cut out for it.  Luck of the draw sometimes. 
     

  30. Phil Cave says:

    There is the DASEB which reviews filing decisions for GOMORs, so no, in your hypo, if it were shown that you “made stuff up” and it was the only basis for a GOMOR, then the DASEB, assuming it did its job, would remove that from one’s fiche.
     
    Three reasons DASEB (or DRB or BCNR) you should not as an adequate remedy.
    1. The presumption of regularity.
    2. The Applicant’s very high burden to prove (I would argue BRD) the error.
    3. See Reason 1.
     

  31. stewie says:

    If it’s shown that the allegations were made up completely then that’s not regularity. It’s not like the removal rate is zero. It’s extremely low because the “made it up” and “completely arbitrary” rate is low.
     
    Can and should depend on the specific facts for a case, there is no blanket never ever that makes any sense at all.
     
     
     

  32. k fischer says:

    And you still haven’t address my hypo. You strongly believe Soldier X maltreated one of their Soldiers.  Let’s say they repeatedly punched them in the face.  But for whatever reason, the government couldn’t get a conviction at trial.
     

    Finding of not-guilty = time to move on.  Both for the service member and the command.  That is what you tell the commander.  If he presses on the GOMOR, you explain “can” versus “should.”  At the end of the day, it is his decision, but the SJA should be a voice of reason in the process.
     
    Disclaimer:  I cut and pasted JMT’s response to Stewie @194712312105
     

  33. k fischer says:

    there is no blanket never ever that makes any sense at all
     

    That statement is hyperbole because……Double Jeopardy……unless a sovereign not being permitted to try someone twice for the same crime by the Double Jeopardy clause of the US Constitution “makes no sense at all” to you. 
     
    Stewie, I have a hypo for you.  Your paralegal finds you attractive and really wants to get with you, but you turn down such advances because of fraternization.  Feeling scorned the paralegal fabricates an allegation of sexual assault against you and you are tried at a General Court-martial for fraternization and sexual assault where you testify that you did not have sexual relations with that paralegal.  The case is your word against the paralegals, and there is no corroborating evidence to substantiate your word or the paralegal’s word.  You are acquitted.  The SJA is “convinced” that the panel or MJ got it wrong because that paralegal would never lie about anything, that you lied when you said that nothing happened, and has the GCMCA file a GOMOR in your fiche for sexual assault, fraternization, and perjury.  Are you okay with that?  Yes or no……….or should I say, “liar or hypocrite”…….

  34. k fischer says:

    Acquittal DOESN’T equal innocent, it means one thing, not guilty beyond a reasonable doubt
     

    Then perhaps you should change the military judge’s benchbook at 2-5-12:
     
    2–5–12. CLOSING SUBSTANTIVE INSTRUCTIONS ON FINDINGS
    MJ: You are further advised:
    First, that the accused is presumed to be innocent NOT GUILTY until (his) (her) guilt is established by legal and competent evidence beyond a reasonable doubt;
    Second, if there is reasonable doubt as to the guilt of the accused, that doubt must be resolved in favor of the accused, and (he) (she) must be acquitted; (and)
    (Third, if there is a reasonable doubt as to the degree of guilt, that doubt must be resolved in favor of the lower degree of guilt as to which there is no reasonable doubt; and)
    Lastly, the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the accused to establish innocence NOT GUILTYNESS or to disprove the facts necessary to establish each element of (each) (the) offense.

  35. Concerned Defender says:

    I recognize the need for the GOMOR process.  I do believe it is abused, however.  And relying on the DASEB to look at it and grant any relieve A YEAR LATER is moot.  The Soldier has likely already faced irreparable damage to his career, perhaps even a Court Martial or Separation.  
    I recently filed an appeal to the ABCMR that included the provision KF cited above, AR 635-200, paragraph 1-17b(1) says:         b…No Soldier will be considered for administrative separation because of conduct that—                 (1) Has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof.
    My client had been arrested by mistake/misunderstanding by the locals.  He was then given a Negative OER.  He then transferred and was promoted and went on with life.  Then the DA moved to dismiss the allegation/charge and it was dismissed since it was a mistake. A few years later, on totally garbage unrelated sex harassment allegations, client was hit with all sorts of bad paper and investigations, and then a involuntary separation.  All (the bad paper, the investigations and the separation hearing) done so wildly outside dozens of standards it is staggering how any of it withstood any level of scrutiny.  He was denied due process at every stage.  HRC had kicked it back TWICE to fix it, but the SJA just kept resubmitting it until THREE YEARS later it was approved.  Anyway, part of that packet included his mistaken arrest and negative OER (which he never saw until the day before his separation hearing, along with 11 other negative documents, which were never provided in spite of 5 discovery requests by his lawyers in the months leading up to the hearing).  Anyway, you recall his arrest and charges were dismissed yet the recorder argued that arrest and OER as part of his case for separation.  
    If justice is done my client will get full relief from that ****show of a ramroded case where it boiled down to total mallarky in every way, and repeated denial of regulatory rights and due process and any standard of legal fairness. 
    The PROBLEM as I see it is that once the first administrative action occurs, and is filed against a person, later reviewers just assume that to be correct, and rule the same without fairness or scrutiny.  So a tainted investigation then leads to the 2nd and 3rd order effects like GOMOR, relief, and then Involuntary Separation which is a train very very hard to stop. 

  36. stewie says:

    I’m pretty sure if I was innocent I wouldn’t want any punishment… Then again if I were guilty but could escape all punishment I’d probably want that as well. So asking whether I’d want a GOMOR is a fairly non-serious argument. The question is whether it is fair to do a reprimand if a trial didn’t result in a conviction and as with most things the answer is sometimes.Why would I change the bb? Nowhere does it say not guilty means a finding of innocent.You know this…you are being ridiculously disingenuous.
    ANY process can be abused, you don’t approach rule-making assuming only the worst case scenario happens.But like I said if your preferred COA were the rule then the GOMOR would just be issued before the trial…not to mention the referred eval.
     
     
     
     
     
     
     

  37. k fischer says:

    I didn’t ask you if you wanted the GOMOR.  I asked you if you were okay with it.  When I get caught speeding and the cops writing the ticket, I don’t WANT to pay it, but I am okay with it.  So, if you get acquitted for something you actually did , then the GCMCA puts a GOMOR in your fiche are you going to be okay with that, meaning are you not going to write in your rebuttal or request to remove to the ABCMR “I was acquitted” because under your theory one has nothing to do with the other.

  38. Dog says:

    Looking for comments on the MJRG’s Report.  Must be on a different discussion thread.

  39. stewie says:

     
    If I knew I got away with rape I would certainly be OK with a GOMOR if that were my punishment… That doesn’t mean I might not try to beat it but I’d certainly know I hadn’t been screwed… I’d be lucky that is all that happened.