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Legal Wac-A-Mole for Military Justice

A request for military justice consultation came in for a servicemember that I was tempted to pass on. He said he was a victim of a brutal assault and that his perpetrator was facing court-martial. Why would he possibly need me? Over the years I have received dozens of requests to act as special victim counse / victim legal counsel. Largely I pass. Each branch of service has given alleged victims far more rights than my client has on balance and appoints uniformed counsel to them. With my firm’s mantra of “we want to be where we can do the most good,” taking up the cause of an alleged victim in military justice hardly seems purposeful. But this man, this servicemember was insistent. And soon I would learn why.

He was the victim of a brutal aggravated assault that left him in a very bad way. He later was called into speak with the police, a follow-up interview. Or so he thought.

The next thing he knew he was being advised of his rights… for rape. Of the wife of the man who had brutally beaten him and left his face pummeled, his ribs cracked, and his spirit vanquished.

Once his wife realized her husband was headed for a conviction and a discharge, she told military law enforcement that my client had raped her, and that had been the reason that her husband had savagely attacked my client.

Now I understood why he needed me.

We undertook to demonstrate how incredible were her claims. Even the outgoing prosecutor wrote an affidavit regarding his interactions with her. By all accounts she has behavioral health issues, which contribute to the ease with which she can tell such vicious lies.

So the government declined to prosecute. Grounds for celebration, right? Not quite.

He was issued a general officer memorandum of reprimand (GOMOR). We fought it and highlighted his innocence. The truth did not matter. The General ignored our pleas and filed the memorandum in his official record. Just a speed bump on his road out of the military.

Next they went after him to try to fire him, administratively.  But wait for it, not for rape…. For adultery. He denied having any affair with her at all, but that was her first story… that she had told her husband that she had been having an affair with his best friend. And she’s totally a credible person.

Mind you, there was not one shred of evidence that indicated any affair – no text messages, no phone records, no opportunity for time spent alone. It was preposterous. Yet the government moved forward trying to take away this man’s job and the only opportunity he ever had to obtain an education and for a brighter future.

At the board he was alleged to have lied to the police on a certain date when he denied the affair; for making a false statement in denying the affair.

He was also alleged to have had the affair.

We fought hard, and the board unsubstantiated the affair. As they announced this finding, my heart swelled with pride. But it wouldn’t last long.

The board president read the next finding – that he had lied to the police…and that the lying warranted separation.

How on earth could they find he had not committed the affair but that he had lied to the police in denying he had an affair? What?!

I explained we would file a memo of deficiencies and point out the error. We were down, but not out.

This man, who had been victimized and re-victimized by the system, wanted to give up. I pleaded with him to fight just a little while longer.

In an effort to try to cure some issue, the government reconvened the board members to ask that they make special findings… they were special, all right. They specified that they determined he had made “numerous oral and written false statements to the police.” Um, no. He had only given one verbal statement to the police, and then when they pressed him and called him a liar he elected to request a lawyer. The government’s effort to clean up the board backfired, but did they even realize it?

We waited for the transcript of the proceedings, which comes before the final action by the general officer show cause authority. We waited, and it never came. This jurisdiction is not known for its efficiency so it was not altogether unexpected.

Then the following week, my client called me in a panic. His command told him the show cause authority had already approved the findings and that he was days away from receiving his DD Form 214.

We scrambled and began to make inquiries. Sure enough, this was accurate.

I filed the memo of deficiencies to the base’s most senior legal advisor. I did not trust the other lawyers to report their mistakes. We had a right to be served with a copy of the transcript, and that had not happened.

The next business day after filing the memorandum of deficiencies we received a copy of the transcript.

My client worked at the headquarters and he overheard his company commander spouting off to someone (in the next office over from his) how [client’s] “bitch lawyer had filed some stupid memo, but that it wasn’t going to do anything but delay things by a day or two.” Huh. My client’s doubt that justice would ever come grew. This was his commander after all? I urged him to have faith a little longer.

As the days grew into more than a week, I heard from him almost daily. He was being ordered to this final appointment and ordered to go receive his DD 214 the next day. I explained that even if our cries for justice fell on deaf ears to the commander, we had another fight to correct his military records.

And then he called me, and through tears, explained that the nightmare was over. The general officer show cause authority had disapproved the findings of the board and was directing his retention. He wept. And he thanked me. For standing up for him, for believing him when no one else would, and for somehow finding a way to save him.

I am grateful for a staff judge advocate that demonstrated courage by walking into his boss’ office and explaining they had made a mistake. Having been hardened by a system that as of late seems to care very little for due process, I am disappointed at having been somewhat taken aback by our win. Even as I was urging my client not to give up hope, I wondered whether I believed others would do the right thing. I told him I knew that we were right, but that sometimes being right does not always ensure success. That is a lesson etched into my spirit over time, weathered by the calloused indifference by those more concerned with their win column than with justice.

But we won. Well, sort of.

He’s in the Army, and he has gone on to a different assignment. He has a clean slate, to start again.

And I am left to wonder how many more like him are out there, who weren’t entitled to a board, or whose counsel did not bother to keep fighting.

Most days it feels like playing legal Whac-A-Mole… save one, another five pop up.

How can we possibly make a dent?

We have to try. We just have to.

Because no one deserves what the system brought to bear on this man, whom the system nearly broke.

Keeping him alive and out of a suicidal state was at times a full time job.

Our servicemembers deserve better. They deserve the best.

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