The military has put additional safeguards in place in their approach to handling allegations of sexual harassment.
Recent updates to military regulations have strengthened the rights of those accused of such offenses, offering clearer pathways for appealing adverse findings. It is important to understand how the military even defines harassment. This blog post outlines these new rights under current military law, specifically focusing on how service members can navigate the appeals process when faced with allegations of violating sexual harassment policies.
1. Initial Notification and Rights
According to Army Regulation (AR) 600-20, para. 7-7, when a service member is accused of sexual harassment, they must be notified in writing of the allegations and the specific policies they are accused of violating. This is in line with Department of Defense Instruction (DoDI) 1350.02, para. 8.1f, which mandates that both complainants and subjects of such complaints receive written notification. It serves as an important first step in ensuring that there is oversight on findings specifically relating to sexual harassment. Given how new are these rights of appeal, in the field, we seldom see that this right is being incorporated into the findings given to service members. In fact, when the service member is an enlisted person, we are seeing more and more that enlisted are not receiving a copy of the findings until that person is facing a letter of reprimand or even facing administrative separation. Be forewarned that even the alleged victims of sexual harassment can appeal findings if the allegations were unsubstantiated as a violation of policy.
2. Right to Appeal: First Level
Under Army Directive 2022-13, dated September 20, 2022, any soldier who receives a derogatory finding of what is considered sexual harassment in the military is entitled to be notified in writing of their right to appeal these findings. That means that they have to also receive the actual adverse findings and the underlying investigation. This first level of appeal is to the appointing authority, as per the directive. The right of appealmust be communicated to the accused, offering them an opportunity to contest the findings before any further administrative actions, such as an administrative separation board, are supposed to be considered. This right of appeal must be filed within 30 days of service of the adverse findings of sexual harassment. One way that we are helping members to extend that deadline is to highlight that the member did not receive the actual underlying investigation or the entirety of the findings. Because this layer of review is with the same appointing authority who likely already approved the findings, it can make a military member feel like there is no point in appealing. But fear not, this step must be followed before you can get to the next level of review.
3. Second Level of Appeal
DoDI 1020.03, para. 5-2 extends a second right of appeal for how the military defines sexual harassment beyond the initial appointing authority, to the next higher command. Reminding the appointing authority of this next level of appeal could be persuasive; not all commanders want their decisions reviewed by a higher authority. We are seeing successful appeals to FORSCOM. This right, corroborated by DoDI 1350.02, ensures that the accused has a substantial opportunity to seek a review of the decision from a higher perspective within the command structure. This dual-layer appeal process at least gives the appearance that it is designed to provide a comprehensive review and to ensure that all factors and evidence are considered before a final decision is made on the findings. Realize that even an adverse action such as administrative separation or elimination can proceed in tandem with the appeal, but no final approval of the separation can take place before all appeals have run. In addition to being an important safeguard, appealing can at minimum give the service member more time, guaranteeing them a paycheck for however long possible.
4. Procedural Safeguards and Legal Requirements
The process and rights associated with these appeals to findings of sexual harassment in the military are outlined and must be strictly followed or else these rights of appeal can be waived (lost). As noted in Army Regulation 600-20, para. 7-8o, and reinforced by Army Directive 2022-13, para. 5.d(1), an administrative separation board, or any similar action, cannot legally finish until the accused has been notified in writing of their rights and these appeals have been exhausted. This safeguard at least partially protects service members from premature or unjust administrative actions.
5. Violation of Notification Rights
Given how new are these rights of appeal, we are still waiting to see how these matters will pan out in the long run when a service member was not appropriately informed of their rights to appeal. In cases where the member has been serving for longer than 18 years or even is retirement eligible, when these kinds of actions go up to the final level for approval, we are hopeful that by highlighting the military’s failure to strictly adhere to these rights will help ensure retention and retirement. Cases we are seeing in the field underscore the critical importance of adhering to procedural requirements and ensuring that all service members are granted their full rights under the law.
Conclusion
The military’s updated regulations and directives provide essential protections for service members accused of sexual harassment, emphasizing the necessity of thorough and fair procedures.
Make sure your service and potential retirement is protected. Contact experienced civilian counsel who understands the nuances of these layers of protections, how best to frame the legal and equity arguments. Do not give up. There is plenty fight left.
