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Playing the Long Game for Military Justice

It is never easy to deliver “bad news” to a client or even to a new potential client.

Many military service members who are facing command investigations believe that if they did not commit misconduct, they will be “fine” in the process, that it will all work out in the end, even without legal help and private counsel intervention.

Sadly, the majority of those in this position end up in receipt of derogatory findings.

Derogatory findings mean that the investigating officer concluded that the greater weight of evidence (known as a preponderance) supported that the member had violated Army policy, regulation, or even committed criminal misconduct by violating either an enumerated UCMJ Article, specified Article 134 offense, or a general Article 134 violation. A general article 134 violation means that the behavior was either to the prejudice of good order and discipline or was of a nature to bring discredit on the armed forces.

Sadly, many members receive advice to not provide a statement during the investigation. Many more are told by uniformed counsel not to respond to the derogatory findings, to wait until the reprimand to respond. This honestly infuriates me. When you silence your own voice, how can you ever expect to be heard? When you choose not to advocate for yourself (through counsel), how can you be angry when the command presumes the allegations against you are true and proceeds with derogatory actions that jeopardize your livelihood, career, and security in a retirement?

Let me be clear: providing information to the investigation should be filtered through an attorney who is experienced. This includes the decision whether to provide a statement as part of the investigation, how to answer questions posed by the investigating officer (at a distance and in writing, AND always through counsel).

Let me be completely transparent about another matter: just because you participate in the investigation by providing a statement and just because you respond to the derogatory findings does NOT mean the command will listen to your version or adopt your statements as true. What’s the point, then, in participating or responding? The point is that we are playing the long game.

Expect derogatory findings to be made against you.

Expect the reprimand to follow the derogatory findings.

And expect to be facing administrative separation (if you are enlisted) or a board of inquiry (if you are an officer).

Statements provided by the respondent (the person facing each of these military administrative processes) will be exhibits at the administrative / show cause board. Responses to the derogatory findings that analyze and undercut those findings will be exhibits at the board. Rebuttals to the reprimands are also exhibits the board members will see.

Each of those steps is an opportunity for advocacy and plants the seed in the minds of the board members about why no one seems to be factoring into any decisions what the respondent is saying.

There is strategy in what each of those answers looks like, each level of analysis, how detailed to be or whether to be more wave top on certain or all topics. The audience is the receiver of the response, but most importantly, the audience for all of those steps is in contemplation of the board members who will read them. I promise the members considers them far more than any other layer in this hellish process – they actually consider them.

We tell our clients expect to “lose” in the investigation. (Do we sometimes win at that stage? Sure. But those wins are rare.) We tell our clients that we will also likely lose at the derogatory findings stage because that’s just how it goes. We also tell our clients that we will lose at the stage of the reprimand – it is going to be filed in their official record. Not for lack of evidence we have provided and not for a lack of reason and analysis – but mostly because the person’s name on the line is one singular general / flag officer who wants to achieve their next star. No one failed to promote for failing to act, but they surely did for their lack of it.

By the time a military member faces separation (for enlisted) or elimination (for officers), there is now a three-member board who thankfully have a secret ballot. They also will have spent hours in the same room, and it is far more difficult for them to ignore the respondent who they share space with than the commander who receives lines on a page.

Does the fact that we expect to lose (until the board hears us out) make a respondent’s participation in an investigation (through counsel) or responses to each step in the process any less important? No way. Remember, we are playing to the long game.

 

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