Our #1 Military Justice Story of 2012 was the politicization of the military’s response to sexual assaults, and in that politicization the military sexual assault crisis was born. In the following years we saw a legislative rush to do something, and the Senate held hearings in March and June of 2013 and then a floor debate in 2014. Some of the subsequent changes to the UCMJ were our #1 Military Justice Story of 2013 and our #1 Military Justice Story of 2014.

But in 2015 things settled down.

Sure there were more changes to the UCMJ (enacted in the FY16 NDAA). But those changes are nothing compared to the fundamental transformations enacted in 2013 and 2014. Instead, 2015 was mainly a year of thinking about changes to the UCMJ.

For example, in February the Judicial Proceedings Panel released its initial report making eleven recommendations. Many of those recommendations focused on victims’ rights issues, but the Panel also recommended additional thinking about Article 120 and it formed a subcommittee to do just that. The Judicial Proceedings Panel Subcommittee released its report in December, recommending limited legislative changes (only 7 of the 17 issues warranted changes).

Additional thinking came from the Military Justice Review Group, which released its first report earlier this week. The report consists of a comprehensive evaluation of the UCMJ with detailed proposals to update some Articles, add others, and radically change a few.

These reports were the product of dozens of meetings (public and non-public) and thousands of hours of debate, deliberation, and review. Significantly, they lack the crisis mindset that seemed to permeate military justice policymaking in recent years past. They are deliberate proposals for comprehensive reform that were released to the public with plenty of time for real debate.

Our #1 Military Justice Story of 2015 is basically a non-story. The sky didn’t fall.

Hopefully it’s the beginning of a new trend.

45 Responses to “Top Ten Military Justice Stories of 2015 – #1: Peak Crisis”

  1. Thewritesofweiss says:

    Yes, now that we’ve eliminated the utility of Article 32s for the accused, eliminated the convening authority’s ability to grant meaningful clemency, eliminated the good soldier defense, and let every GO know what happens if you don’t send cases forward, the crisis is now resolved.

  2. Concerned Defender says:

    Well, the sky actually did fall.  As I sit here, I would stake my law degree and profession and reputation by saying that scores of men innocent of sex assault were convicted, imprisoned, and kicked out of the military with punitive or administrative discharges and ruined careers and lives over the “sky is falling” over-reaction and application of the Unlawful Command Influence.  
    Apparently we learned again that voting matters, and when you put a social justice warrior in charge of the US Military, we get what a very damaged Military Justice system.  The VAST changes served to undermine due process and fairness and justice, chipping away at significant time-honored rights.  It really is a shame.  I say this on behalf of the innocent men’s lives who were the true victims of this war.  They have no voice and once one has the scarlet letter society shuns them.  

  3. Just Beginning says:

    It seems to me that the sexual assault crisis has merely metastasized into a crisis for the military justice system as a whole.  Major news outlets have become interested in the military justice process, and have had their curiosity met with, at least from their perspective, secrecy.  Not long ago, news outlets accused the military justice system of being “opaque” in its handling of child sex offenses.  Recently, as CAAFlog has covered extensively, major news outlets have spent their limited litigation resources to file extraordinary writ petitions seeking access to information about the Bergdahl case only to be told by the system’s highest court that it won’t interfere with command prerogative.  To media lobbyists on the Hill, that offers the opportunity for collaboration and mutual back scratching between their clients and Congressional leaders who have gained prominence by pushing an agenda to strip commanders of such prerogatives.  That relationship is already starting to see capitalization with recent headlines such as: “Senators demand transparency in US military justice system.”  http://www.foxnews.com/politics/2015/12/08/senators-demand-transparency-in-us-military-justice-system.htmlWhether “transparency” is ultimately good or bad, is yet to be seen.  But, I am certain we are going to find out in the next few years what it feels like to be forced to be “transparent.”  In my view, the Congressional gaze of Sauron has not turned away.  It has instead broadened its aperture from focusing on sexual assault to being interested in dissecting the system as a whole.  And, it has gained big media as an ally in the same way that Sarumon turned on those he should have helped.  It seems to me that things do not bode well for the military justice Fellowship in the future.  

  4. Zachary D Spilman says:

    I explained why the AP’s allegation of opacity in military justice was overblown in this post: The perception of opacity in military justice. As I wrote in that post:

    In part, the report notes that “records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. The military does not have a comparable repository.” This is certainly true. But implementing PACER (or an equivalent) is hardly simple, as it would require standardized rules for the handling, marking, and redaction of trial-stage documents in order to permit public release. Even the Associated Press admits that not everything should be public knowledge, as it does not provide the names of the child victims whose stories it uses to add emotion to its report. The military justice system currently relies on the Freedom of Information Act (FOIA) to address redaction and release, protecting the privacy rights of victims, witnesses, and even the accused. That process isn’t fast, but it’s what the law requires.

    If Congress wants to change the law to make court-martial records more accessible to the general public, so be it. 

  5. Concerned Defender says:

    One effect is that this is being forced upon the JAG Corp because of the JAG Corps’ incompetence in charging or legal opines as to why to not charge.  That opens up the door to garbage movies like “The Invisible War” and whatnot.
    The JAG Corp and PR should have immediately responded in kind with a film that explained why these garbage cases were not charged or the legal reasoning.   In response to XYZ “alleged victim” here’s why we didn’t charge it, and here’s the legal opine dated contemporaneous.  Her story was not credible, and she had previously had misconduct for lying, and she had clear motives to fabricate, etc.   Instead, it festered.  
    Additionally, the JAG Corp is falling victim to charging more cases that should not be charged.  Inevitably charging something gives the allegations some credence; and when the acquittal rates increase because the cases are garbage, MORE scrutiny will be applied.  
    They are complicit and contributing to the problem that will tighten the noose on losing jurisdiction to handle MJ issues.  I find it unbelievable that the top brass can’t see this obvious roadmap. 

  6. Dew_Process says:

    . . . . as I sit here prepping for an AdSep board for a Soldier, just shy of 18 years in, who 17 years ago was convicted of “carnal knowledge” as a 19 year old PFC, with a 15 year old, who had a fake driver’s license showing she was 17.  He go a bust, 60 days and came out to a commander who said, “you’ve got 2 years left on your enlistment – redeem yourself!”  The Brigade CO nixed the separation action then, he earned his stripes back and they pulled his Bar to re-enlistment, which he did – 4 enlistments ago, one 14 month deployment to Iraq and rising to an E-7 with a Secret Clearance.
    But, someone saw that ancient Court-Martial order in his file, and with the brilliance of Army Directive 2013-21, mandating a new AdSep Board “regardless of when the conviction for a sex offense occurred . . . .” he faces the prospect of losing his employment and retirement.
    For him, the sky is falling . . . .

  7. Just Beginning says:

    Congress couldn’t care less whether court-martial records are more accessible to the general public.  Congresspersons are interested only in meeting the demands of their constituencies.  Media constituencies would like to make proceedings convenient for sensationalist news coverage because that is what sells.  That means instant access to information, and it certainly doesn’t involve waiting around for a dull and voluminous record of trial to be compiled.  Their recent writ petitions show this dynamic.  They want information – incomplete as it may be – to be immediately released, whether a trial is anticipated or not.  In turn, “victims rights” constituencies are interested in creating a market for civilian representation of victims in courts-martial and, as an ultimate goal, they would like to open the civil courts’ doors to victims whose cases, in their view, have been given unfair treatment by a party with deep pockets: DoD.  Those victims advocacy organizations have gained allies in Congress and are gaining them now in the media.  Their propaganda – such as The Invisible War – makes clear their objective: abolishing the Feres bar as regards crime victims.  They have focused on sexual assault victims because it is politically advantageous to do so given the gender dynamics of that crime.  But, surely they would later like to have other types of victims as their clients as well.  Their arguments have taken a predicable turn as of late.  They used to argue that their clients cases were being swept under the rug.  Now, they’re arguing that even cases that go to trial are not being handled in a fair way.  See the op-ed written by the civilian victims’ counsel in the Wright acquittal for the latest example: http://www.huffingtonpost.com/ryan-guilds/air-force-sexual-assault_b_8431854.html.  The sexual assault crisis was fueled by plaintiffs lawyers who saw the possibility of a payday at the end.  Those plaintiffs’ lawyers obtained congressional, and now have allies in the major media as well.  The potential to make money is driving the movement to reform the military justice system, the media has become interested, and we keep giving them reasons to be more interested.  The controversial nature of sexual assault and its supposed prevalence in the military gives politicians a nice talking point that allows them to earn political capital from “reform” proposals.  Meanwhile, military leaders seem to think they are dealing with entities who honestly care about military justice as opposed to seeing those outsiders for what they are: folks with the same sort of classic political and economic motives that have always driven policy and law.  The crisis will grow because we in the military don’t even realize what game we’re playing.  We think everyone else cares about this system as much as we do.  We are mistaken.

  8. Zachary D Spilman says:

    For him, the sky is falling . . . .

    I won’t downplay the seriousness of this on an individual accused (or respondent in your case, Dew_Process). A trial is life-changing even when there’s an acquittal (and a board, even when there’s a retention).

    But 2015 didn’t bring us things like Army Directive 2013-21, and the 2013 changes to the UCMJ, and the 2012 release of the propaganda file The Invisible War. Put differently, things could have gotten even worse last year. That they didn’t makes me hopeful that we’ve turned a corner. 

    Maybe I’m wrong and the military justice apocalypse is still to come. But I doubt it.

  9. Concerned Defender says:

    Maybe I’m wrong and the military justice apocalypse is still to come. But I doubt it.

    Well, that will depend on whether Hillary gets elected.  She believes that EVERY rape victim should be believed.  So, if she becomes the Commander in Chief and employs that mentality, the service is surely to see even harsher and less balanced application … God save us. 
    I agree with “Just Beginning” and “Dew Process” above.  I fear this is marching down the road of absolutely wreaking havoc in the service.  Most men, including me when I was early in my service career – until I saw the trend – have NO IDEA of the extreme danger they are in, when they associate with women.  An off-handed comment is sexual assault.  Touching someone is sexual assault.  An unwanted kiss at the end of a date is sexual assault.  Lord help you if actual sex is involved and she decides a year later it wasn’t consensual.  
    @ Dew Process – I have a Soldier also being completely unfairly targeted under the same 2013 memo.  It’s simply unbelievable.  I shant get into the details, but it makes me so frustrated with the service…  

  10. Vulture says:

    Zach.  In the US v Labella, Mr. Bruce argued that he was trying to help and that the correct means of redress was an extraordinary writ.  Reversing the predicate of his argument in Arness he put forward the exact point of your number 2 story.  The court overlooked not just amicus in that case but also in Behenna.  Then changed its own rules because amicus was not helpful.  u
    Maybe the sky isn’t falling but it is darker.

  11. Zachary D Spilman says:

    Trying to help would have been seeking late certification on behalf of LaBella.

  12. stewie says:

    Zach the problem with your approach is that it looks at things on a yearly basis but many of the changes made over the past few years will take years to shake out. The changes listed just in the first comment are going to have significant and wide ranging effects we won’t fully know for maybe several years. I think there was a sense by Congress that there was enough changes for the time being and they want to see the impact. I think we just don’t know the damage yet.

  13. Phil Cave says:


    as I sit here prepping for an AdSep board for a Soldier,

    I forget our discussions on this.  But aren’t there some collateral victims of this special act of vengeance.  Is he married?  Does he have children?  If so, are all of them are to be punished along with him?  Maybe he doesn’t, but there are certainly cases where there are such collateral victims.  Should that not be a consideration?
    Your Soldier is living proof that sex offenders of his “type” are the least likely to re-offend, even compared to thieves and assaulters and fraudsters.  He’s also proof of how restorative justice can work.  He did what society asked of him, both the military society and the greater society, and made the commitment not to become a recidivist.

      the changes made over the past few years will take years to shake out. 

    Spot on.

    Then changed its own rules because amicus was not helpful. 

    I don’t have inside information. But I think there was a specific reason for changing the amicus rule to lessen “me too” amicus petitions.  Again, I don’t have any inside information, but there have been a number of SVC “me too” amicus filings (a perception on my part, not supported by data, except for events in my own cases).  Such amicus pleadings are not helpful.  CAAF is merely IMHO following the model of the SCOTUS in a way that makes them a real court instead of a petri dish–and I could be completely wrong.

  14. Dew_Process says:

    Phil – indeed you are correct about the collateral damage – he’s married with kids.  And I agree with your assessment about the amicus rule being intended to stop the “me too” briefs that by-and-large do not assist the Court in any meaningful way, but are many times simply inaccurate.  As SCOTUS Rule 37(1), states in relevant part:

    An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

    Good amici briefs are frequently quoted in SCOTUS’ decisions and create credibility for the organization filing them.  No reason why CAAF shouldn’t have a similar approach, which the rules change, seems to strongly suggest.

  15. Phil Cave says:

    DP.  Just so I’m clear on this.  We have a person who “recovered,” from an error in judgment of two people.  The Soldier meets a girl, they get married, have kids.  His career is going quite well.  The wife and children are happy too in the sure and certain knowledge that there will be a retirement check to help pay for college, smooth the path into their next career and life together as a family.  The wife and kids who were left at home while he deployed in dangerous territory and put his life at risk.  And wham!  
    Will Senator Gillibrand be meeting with the client’s wife and children to explain how it’s got to be this way? There are unfortunately those who have to suffer for the greater good (a la we can’t prosecute false accusers) pour encourager les autres.

  16. President Camacho says:

    The client is the Army so what does the Army want?
    If his entire chain of command says to retain and past leadership says the same, then who is the Trial Counsel advocating for if he/she argues to kick? 
    Seems to me the Trial Counsel should advocate for his/her client.  But I don’t have a lot of faith in most TCs to do this. 

  17. stewie says:

    well Mr. President, sometimes the government will hold a board to forestall/preempt an HRC board if they want to ultimately retain the Soldier. I’ve seen that happen before. Because if the local folks don’t do it, then eventually HRC will do it, particularly in a case like this when it is mandatory.  I don’t known that it is what is going on here, but I’ve seen it done before.

  18. Not the Army says:

    Pres Camacho,
    TC represents a client greater than the Army.  Art. 38(a): “The trial counsel of a general or special court-martial shall prosecute in the name of the United States”That envisions trial counsel who seek to meet the needs of the American people, not merely the Army.  Even if the Army wants a particular soldier to be prosecuted or to receive a certain punishment, a TC is supposed to ask what is in the best interest of the entire United States and its People, not merely its Army/Navy/Air Force/Marine Corps/Coast Guard/Department of Defense/Department of Homeland Security.  The lack of independent TC who really understand what and who it is they are charged with representing is the root cause of many of this system’s ills.  For example, a TC should not be deferring to the judgment of an SJA.  They represent different clients, with potentially divergent interests.

  19. Phil Cave says:

    Mr. Prez.  It’s not an overly zealous TC here.  It is big Army pushed to do this by Congress.  From the local unit perspective, they have no control on the initiation of the action.  It’s like drug offenses–automatic processing for separation regardless.

  20. k fischer says:

    I’ve seen that, too.  What I have never seen, however, if the TC in that board recommending that the Respondent be retained.  I’m still waiting for that honest TC to say after all the evidence is in, there is no way you guys shouldn’t have reasonable doubt or should retain this guy.

  21. Vulture says:

    Mr. Cave.
    That makes sense.  A lot of people around here are not very fond of the SVC.  “Me too.”

  22. President Camacho says:

    Stewie / Phil  – I have seen the situations you describe – what I haven’t seen is a TC who advocates the same position as his/her client through its representatives —- if this is to preempt HRC then do the board and TC puts on witnesses who all say retain and thus the TC is done his/her job. If no one advocates for firing the guy then why should the TC?
    Not The Army — this is not a court-martial – its an admin separation board which is akin to a firing action except with potential life-long consequences.  I thought I read somewhere that Admin Sep boards are not supposed to be an adversarial process akin to a CM although everyone I have seen is adversarial and like a court-martial except few rules

  23. Charlie Gittins says:

    There was a hearing in the 60’s I think where the Senate Committee on Constitutional Rights addressed the military use of admin boards to rid the military of people they could not convict at court martial.  Senator Dirksen was the chairman.  The military (through the TJAGS) advocated for Ad Sep stating they would not use it to separate military members that they knew they could not convict at CM.  I.E., they would not use Ad Sep to avoid proof BRD.  Does any sentient military counsel believe this is how it shook out?  I wish I would have copied this hearing transcript when I read it, because I would have jammed it up every CA, SJA, BCMR ass that I came across.

  24. Concerned Defender says:

    Had an admin sep board for a stellar officer whose misconduct was consensual adultery with a senior enlisted.  He totally confessed and cooperated whereas she didn’t.  She received no punishment, and he was hammered.  Among his punishment was a OTH separation.  That alone was totally unreasonable for starters.  But he was actually ready to get out and I convinced the TC to not put on any evidence other than the packet, and to object to and agree with an Honorable discharge so we could essentially have a fast board.  We both said our openings, essentially asking for a Hon discharge.  The board insisted on hearing evidence.  The TC rested with no evidence or witnesses.  I put on 3 very strong character witnesses.  All of this should have been enough for the board to recommend an Honorable, as BOTH sides were requesting.  Nope.  They returned with a GEN discharge!   Keep in mind the female NCO SFC continued her career progression and was promoted to MSG.
    What do you say to your client?  I was floored.  Went to the CG, and he approved GEN discharge.  Good grief.  All the way up to HRC and months later he finally got his Honorable Discharge.  That was a big deal to him, and he had earned it with his 10 years in service and 1 final characterization.  So, he got out with the Honorable and accepted the job that was waiting for him, earning 4 fold his Army pay and a lot less bull$hit.  
    I just shake my head that any reasonable person in a Board of Inquiry could characterize an entire 10 year career, when BOTH the TC and DC are asking for an Honorable discharge (rather than retain, or anything else), and when the DC even puts on significant evidence and the TC puts on zero evidence… how in the world does a Board come back with anything WORSE than what even the TC is asking for?  If any deviance it should have erred on the side of benefiting the accused. 
    I have so little confidence in the decision making ability of Boards and Panels – my years in litigation have really shaken my belief in the process in that there are really unreasonable people making important decisions.  

  25. Concerned Defender says:

    There was a hearing in the 60’s I think where the Senate Committee on Constitutional Rights addressed the military use of admin boards to rid the military of people they could not convict at court martial.  Senator Dirksen was the chairman.  The military (through the TJAGS) advocated for Ad Sep stating they would not use it to separate military members that they knew they could not convict at CM.  I.E., they would not use Ad Sep to avoid proof BRD.  Does any sentient military counsel believe this is how it shook out?  I wish I would have copied this hearing transcript when I read it, because I would have jammed it up every CA, SJA, BCMR ass that I came across.

    It’s precisely how it’s used.  Maybe even how it’s taught to be used.  It would be a silly and dis-ingenious argument to suggest it wouldn’t be used in such a manner, and equally foolish to believe it.  
    I’ve had many clients who were convicted but retained at Court Martial, only to immediately face an admin separation once they completed their generally light confinement.  In fact, the rules allow for this with no worse than a General Discharge.  

  26. Zeke Kennen says:

    Charlie Gittens,
    I think the Judiciary Committee hearing you’re talking about is available on the Library of Congress’ military justice page:
    Joint Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary and a Special Subcommittee of the Committee on Armed Services, United States Senate, Eighty-Ninth Congress
    I haven’t read it yet, so I can’t be sure it is what you’re looking for.  But, it seems likely.

  27. TC says:

    Concerned Defender,
    You lose a lot of credibility when you are unable to comprehend why a board felt an Officer who committed adultery with an enlisted Soldier deserved less than an honorable discharge.  While I ordinarily think adultery should go uncharged, I make an exception for times when it’s clearly prejudicial to good order and discipline, such as when it is combined with frat.  While DP’s example above likely had most of us shaking our heads in disappointment, I for one was nodding in agreement when I read the board’s decision in your post. 

  28. Alfonso Decimo says:

    We will be able to say we were witnesses to the years that culminated in the end of military justice. For now we are the horse-and-buggy experts in the age of the Model-T.

  29. Race Ipsa says:

    Stewie – you seem to be assuming a SFC and a CPT (presumably) having a consensual relationship automatically is prejudicial to good order and discipline.  Granted, AR 600-20 would support that notion, but there are many times where there is no impact.  FWIW, I don’t disagree with the boards findings as we don’t have enough information. 
    KF – I’ve actually been that TC recommending retention on an HRC directed board.  The short, non-privacy invading version is the LTC was at least an above average performer, his entire supervisory chain recommended retention, and the investigation (and subsequent GOMOR) from six years before the board should not have been deemed legally sufficient (the IO himself testified that rights warnings weren’t neccessary because it was “just a 15-6”).  The board deliberated for roughly 15 minutes before recommending retention.

  30. Lieber says:

    I have definitely seen TCs (more than one in fact), essentially ask for retention at an HRC directed board.  The way it usually works is it’s an officer or senior NCO, they had a GOMOR five or six years ago, HRC directs the board, the command wants the Soldier retained and so the TC says “here is why HRC directed the board, please consider that, then also consider that the command wants the Soldier retained.”  Granted this is OSJA, unit and TC dependent.

  31. k fischer says:

    You lose a lot of credibility when you are unable to comprehend why a board felt an Officer who committed adultery with an enlisted Soldier deserved less than an honorable discharge.

    TC, good thing HRC didn’t see it that way.  I think that CD was commenting on this curious “hearing” where both he and the TC argued for an honorable discharge and his client got a General discharge, particularly considering that nothing happened to the enlisted person.  I know that board members make their own decisions and are not bound by the recommendation of counsel.  And perhaps this is one of those cases where it was deserved, but I took the story as anecdotal for the purpose of showing how admin actions are a somewhat inequitable tool to fire some, but look the other way on others.
    I can certainly comprehend that an Officer could receive a General discharge for such misconduct, and I’m sure that CD can, as well.  But, I don’t see how he loses credibility when HRC gave him an Honorable discharge after all that work.  Perhaps, he is correct in his righteous indignation about what happened.
    As far as the sky not falling, my impression from reading that line was the same as Stewie’s.  We don’t know if the sky is falling or not, right now, because there is no database on bs courts-martial that result in an acquittal…..or heavens forbid, a conviction.  I know Bill C. had a tough loss with Erik Burris, which hopefully will find some relief at ACCA.  I had a very similar case with my client at Benning, but thankfully, it resulted in a full acquittal.   AF Major Clarence Anderson had a tough conviction down at Hollomon after his wife accused him of beatings and sexual assault with facts strikingly similar to mine.  He was convicted and sentenced to 42 months and a dismissal.  Another Benning court martial, US v. Chinchilla, resulted in a conviction, two years confinement and a BCD, for an NCO having sex with another NCO while both were substantially incapacitated, and witnesses who were in the room stated that the sex sounded consensual, and that she was on top at one point.  These are cases with which I am familiar, and I am one attorney who has a very small court-martial practice.  I would venture that guess that other attorneys have some pretty crazy courts-martial stories that show that the sky might be about to fall like a foam headliner in a GM 70’s era vehicle in the South Florida sun.
    Finally, you have US v. Brandon Wright where the MJ found UCI in that the AFTJAG recommended a second look, so to placate Senator Gillibrand, but decided that the second preferral was UCI-free beyond a reasonable doubt, so the case went to trial.  I think the MJ, as the last sentinel to protect the accused against UCI, committed a violation of General Order #1 in that case.  
    We will see if the sky dropped at all in the next few years as these convictions make their way through the appellate system.  But, it would be interesting to hear other stories about other perceived injustices like Burris, Anderson, Chinchilla, Clark and Wright.

  32. TC says:

    There are times for a defense counsel to be righteously indignant.  I don’t think that an Officer receiving a General Discharge after committing frat (and adultery) with an enlisted Soldier is one of those times, regardless of what happened to the Soldier.  And who cares if the Recorder (who was clearly mailing it in) recommended an Honorable?  The outcome is based on the facts, not the recommendation.  And I think those facts speak for themselves.  I’m comfortable with the default position of an Officer who has sex with enlisted Soldiers doesn’t get an Honorable Discharge.  If the Officer faced no punishment but the enlisted Soldier was separated, then I can see the issue.  But the senior person should be held more accountable, and the command’s decision with regards to her makes little difference when deciding his fate.

  33. K fischer says:

    Do you think that an isolated incident of misconduct followed by a subsequent period of faithful and honorable service would be enough to taint an entire career to make it characterized as less than honorable?  Because I read that somewhere.  I think it’s in the thing.

  34. Concerned Defender says:

    January 4, 2016 at 7:20 AM

    Concerned Defender,You lose a lot of credibility when you are unable to comprehend why a board felt an Officer who committed adultery with anenlisted Soldier deserved less than an honorable discharge.  While I ordinarily think adultery should go uncharged, I make an exception for times when it’s clearly prejudicial to good order and discipline, such as when it is combined with frat.  While DP’s example above likely had most of us shaking our heads in disappointment, I for one was nodding in agreement when I read the board’s decision in your post. 

    Well, TC, the recorder at the board didn’t agree with you.  More importantly, HRC doesn’t and didn’t agree with you on that case.  Folks seem to miss the concept that an officer gets generally only 1 DD214, unlike an Enlisted Soldier who gets multiple characterizations.  Do you think that it’s right for an entire say 10 year period for a Captain to be characterized based on an incident of adultery at the very end?  Stated otherwise, you’re only as good as your most recent misconduct and all else is effectively meaningless?  All your benefits, GI Bill, everything you’ve worked for a decade to earn, gone, for something so relatively trivial.  I don’t.  In this case neither did HRC.

  35. Concerned Defender says:

    I’ve referenced it here before, but my client was dealt the worst injustice of a rape conviction and 5 years confinement and a punitive discharge for consensual sex.  His co-accused in the consensual 4 some was virtually acquitted the next day, different panel.  Long, painful story to recall, but yes, the sky is falling for the absurd nonsense of some of these fact patterns.  I am still furious about that CG, group of Trial Counsel and SVP hacks, that Judge and Panel after all these years have gone by.  
    No way it should have resulted in a conviction.  Totally innocent.  
    The cards are stacked so heavily against and accused.  I really would like the folks pushing these to just think for a moment how incredibly precarious their careers and lives are if they are a male and a female makes so much as an accusation against them…. even a female you might have had relations with a decade ago.  You’re toast.  And this is a real and present danger for the military and for men.  
    Just think through the consequences and how it would play out if you were accused and how it would ruin your life.  Then get back to us and tell us how all is fine and dandy in the Sex Assault prosecution arena. 

  36. TC says:

    Concerned Defender,

    Do you think that it’s right for an entire say 10 year period for a Captain to be characterized based on an incident of adultery at the very end?

    Adultery? No.  Sex with an enlisted Soldier (who I’m guessing was his subordinate)?  Yes.  And if I’m on the board and I feel this way, why should I care if the Recorder recommends an Honorable?  Is some JAG better qualified to judge what merits an Honorable Discharge than the board members?  Good for you, and more specifically for him, that HRC changed the discharge.  I’m sure that was some good advocacy on your part.  But I don’t see how the the board’s decision to disregard the Recorder’s recommendation was some sort of travesty.  If all that mattered was a JAG’s recommendation, we wouldn’t need Convening Authorities, and the SJA could just decide whether to prefer and refer charges, could hold NJPs, etc.

  37. Alfonso Decimo says:

    On this argument, I am with TC. It is completely normal (and in no way a travesty of justice) for an officer-enlisted frat/adultery to result in an adverse admin board result for the officer but not the enlisted, at least in the Navy. I also congratulate CD for the good advocacy that ultimately resulted in an Honorable Discharge. 

  38. stewie says:

    Big difference in that guess you have TC. If it’s his subordinate, maybe, then again I’ve seen officers convicted of much greater offenses who were retirement eligible who didnt lose it…but still, I can get on board with you if it’s a subordinate.
    Just another enlisted member though? It’s a bit harder. Just a few decades ago officers could date and marry enlisted Soldiers in the Army. That tells me it’s malum prohibitum, not malum in se.  I’m less outraged in that scenario to think it HAS to be something other than honorable. I think that misconduct is relatively speaking rather minor not much greater than adultery.

  39. thewritesofweiss says:

    What bothers me about this issue, and I’m not sure if this BOI everyone has been talking about had these facts, is that I’ve seen numerous cases over the last few years with the following pattern: Officer does something stupid.  He gets a GOMOR or maybe an Article 15 for it. No one initiates separation.  He deploys multiple times, gets good OERs, awards, et.  Then our country decides we won the GWOT and don’t need a big Army anymore.  So five years later, HRC initiates a BOI on this guy and the government recommends something other than an Honorable Discharge, or the board recommends something other than an Honorable and HRC approves the less than honorable.  I call BS on that. If this person was good enough to keep around for years, then he or she should get his or her Honorable if we’re kicking them out because of a drawdown. Kicking them out for the purported misconduct which occured years ealier is a farce.  This does not even account for the situations where someone does something minorly stupid now and HRC show-caused for it or the GOSCA initiates on them.  That’s hypocrisy also.  Different standards for different times.  Is that what we’re about?  I guess so, because our actions prove it. 

  40. Jack Burton says:

    The recorder’s duties are not discharged by a perfunctory entering in the record of evidence provided by the Department of the Army. The recorder will investigate the case, seek new evidence that may be locally available, and become thoroughly familiar with the respondent’s history and the deficiencies or conduct (as appropriate) that led the selection board, CG, HRC, or GOSCA to conclude that the officer fails to meet prescribed standards or has been derelict in moral professional duties.

    Not much room in AR 600-8-24 for the TC to disagree with the GOSCA and strike out on their own as a second DC. 

  41. stewie says:

    It sucks weiss, I agree…so who do we kick out instead come drawdown time? Two guys…one stayed out of the trouble the whole time, the other did not. I think the problem is that there really isn’t a system of review that looks at clearing this documents after a certain time period. I know a married couple who were stellar officers IMO. They got passed over for promotion because of a GOMOR they receive for “adultery” with each other in OBC.  So 7-8 years of good work and those GOMORs just sit in their file. It should be easier to wipe them out, and an auto review process after say five years to do so.
    But I understand why the board didn’t promote them…it’s a much easier cut to make then trying to split the fine hairs between the 35th best and 36th best, particularly among JAGs where there really isn’t much of a difference between the 20th and 70th “ranked” candidates at any given promo board.  I also understand the loss of two fine officers and the unfairness they faced. I’m not sure what the answers are though in the age of downsizing.

  42. Lieber says:

    I think what Weiss is understandably excised about is something other than an Honorable in that situation.  Yeah, the kick is going to happen eventually…characterization (and even sep pay) don’t have to be screwed with by doing an HRC mandated board.

  43. stewie says:

    I’d read his excise perhaps more broadly but yes if it’s just about the honorable then I agree. It makes no sense to say an entire over a decade long career is not “honorable” solely because of one incident of frat…gonna need more than that.  Although, I will say the only difference in reality between an Hon and Gen under Hon is educational benefits (and sometimes, not even then)…so that mitigates it a little bit.

  44. thewritesofweiss says:

    Lieber understands me correctly. I understand that people may get the boot years after committing misconduct because of the drawdown. They should be first to go if people need to be thrown off the boat. But not through BOIs for the distant misconduct. They should get out with an Honorable and separation pay. And I think loss of GI Bill and federal civil service retirement points is a huge deal. Plus, having to say you got anything less than an Honorable Discharge is a huge deal. If the misconduct warranted separation, then it warranted it at the time. If someone recovers from it and the military continues letting them serve, deploy, etc., then it’s disgusting for them to initiate separation on them years later unless only an Honorable Discharge is on the table. 

  45. Concerned Defender says:

    RE throwing people out on the changing whims of the military and need sure strikes against the “integrity” in my view.  Same conduct should warrant same approximate result, not the wildly different stuff we end up with.  In the 1980s a combat veteran was a rare thing and would have to be darn awful to get booted with anything less than Honorable… today?  Combat vets are the norm and expectation.  Nobody blinks at a guy with a BSM with V. device getting thrown out with an OTH. 
    Anyway, standards should be similar regardless of the timeframe.  I think to fix it we could instill some more clarification across the types of discharge, we could give officers “checkpoints” like enlisted soldiers to secure their periods of service (that seems obvious), and we could also allow for a voluntary separation which would alleviate much of the need for the contested involutary seps.  Just make it contingent on higher approval to prevent loss of high-demand top tier guys or those facing serious trouble.  But for the broken and “ready to get out” guys, why not let them tap out in times of downsizing.  Would be much more efficient for everyone involved, and a lot less headache.
    Finally, losing the GI Bill and other benefits is a huge deal.  That alone has an economic value of perhaps a quarter of a million dollars, or as much as a junior officer earned in a career.  Losing that benefit, and the prestige of having the Honorable discharge would be a gut punch.  
    I know a handful of officers and enlisted that fraterized, nobody got hurt, no impact to unit, and some even got married later.  It would have been a real injustice if they had been punished .