The following is an account of an actual case we recently handled. The names have been changed for privacy interests:
Madison Armstrong was an Air Force Captain returning to the continental U.S. (CONUS) after an overseas tour. Her career was off to a great start: after 6 years of service she had a solid string of superior performance evaluations in career-enhancing duty positions. She had built a reputation as a go-getter, volunteering for special projects and also giving time to private organizations that supported Air Force members and families. At her previous duty station, she had taken over a private club that provided recreational services. Unfortunately, the club’s operations ground to a halt while Madison was deployed thanks to actions of a club member that had caused trouble for the sponsoring unit. Then the global COVID outbreak happened. Although Madison was able to repair the relationship with the sponsoring unit when she returned from deployment, the reality was that the club could no longer function. With her own change-of-station move coming up, no one willing to take over, and COVID restrictions preventing any future activities, the club’s leadership determined that the only option was to disband the club. While Madison was preparing to depart for her return to CONUS, she took steps to distribute the property of the club in accordance with her obligations and the law. She then left Europe and reported to her new assignment, one she had worked hard to obtain: a military internship with an intelligence agency.
Not long after she reported to her new duty station in CONUS, Madison was called in by military law enforcement and asked questions about the club. Knowing that one of the club members had caused trouble for the sponsoring unit she assumed that was why she had been contacted. What happened next set her world in a spin: the military police investigator read Madison her rights and told her that she was suspected of stealing: Larceny in violation of Article 121, UCMJ.
What was this investigator talking about? Surely, thought, Madison, this was some kind of misunderstanding. Believing that everything could be cleared up, she waived her Article 31 rights and provided a statement. It soon became clear that two former members of Madison’s club now had a new club, and they wanted the items that had been distributed to Madison. More significantly, they had reported those items as STOLEN. Her head was spinning. Larceny? Theft? This was insane! She hadn’t stolen anything from anyone! She gave every detail she could to the investigator, who then released her. She knew she needed legal advice. Like most, she assumed the command-provided legal services would be sufficient, so she headed to the local JAG Defense Office. That’s when things went from bad to worse.
Madison met with the local Area Defense Counsel (ADC) and told him everything. He told her to not worry about it and to just wait and see. *Not all uniformed defense counsel are created or trained equally* That didn’t sound right to Madison. She knew the intelligence program she was in had certain requirements, including a duty to self-report if she was under any kind of investigation. The ADC didn’t like that idea, but Madison knew her obligations. After she pressed the matter with the ADC, he relented and agreed that she should probably go talk to the security office about the law enforcement investigation. The ADC cautioned Madison to say as little as possible and provided some confusing language to use. Madison left the JAG office and went to the security office. She informed them that she was under a law enforcement investigation and attempted to use the words her JAG attorney had given her to explain what she knew about it. Hopeful that she had done everything she needed to do, she went back to work and waited, like the ADC had instructed, with the hope that everything would work out.
Things did not work themselves out.
Weeks later, Capt. Armstrong learned that her commanding general intended to punish her under UCMJ Article 15. Not only was Madison alleged to have committed Larceny, her command now claimed the language she used in self-reporting constituting a False Official Statement. As unbelievable as these allegations were, the response from Madison’s military attorney was even more outrageous: he advised her NOT to fight the charges. The ADC told Capt. Armstrong not to demand a trial by court-martial. He assured Madison that he would write a memo to the CG and everything would be fine. He also told Madison it would help if she offered to “pay restitution” for her share of the club’s equipment from when the organization was shut down. Madison wanted to also gather character letters and other evidence of her good service, but the ADC told her that was not necessary. Uncomfortable with this course of action but trusting her JAG defense counsel, Madison agreed and submitted to the Article 15 process. She asked to appear before the CG, but the command told her mission requirements made that impossible. Her request for a VTC-appearance was also denied.
Not surprisingly, the Command General found Capt. Armstrong guilty of both charges and imposed punishment, effectively ending Madison’s career in the Air Force.
That’s when she realized it had been a mistake to trust the system. She called us.
Was it too late to help her? No. It was not.
Even though Madison had already waived her right to have the allegations tested through the court-martial trial process, and even though she had already been punished under Article 15, and the appeal rights for that process are extremely limited, there was still advocacy to be had.
Please note that we would have much preferred earlier involvement. Had we been involved in her case early on, we would have helped Madison participate in the law enforcement investigation through counsel. We would have reached out directly to the legal office reviewing the case so they properly understood the facts and legal issues. In our experience, that kind of proactive legal work can prevent false allegations from becoming charges, and it might have ended her case. If those early efforts had not been successful, we easily would have advised Madison to turn down the Article 15 and fight the allegations against her. [All cases are unique, and anyone contemplating demanding trial by court-martial needs to speak with an experienced UCMJ attorney]. Unfortunately, none of those options were available to us when Madison finally sought private legal counsel.
Instead, we took an approach not contemplated by regulation.
Drawing on our track record of success in the courtroom, we re-approached the commanding general through his legal office and filed a request for reconsideration. We then went to significant lengths to show how Capt. Armstrong was neither a liar nor a thief. We provided a detailed analysis of the law governing private organization and how her actions were completely legal. We also pushed back on the notion that she somehow had made a false official statement. We gathered and presented compelling evidence that lying and stealing were absolutely inconsistent with Capt. Armstrong’s character and outstanding military service.
We did not, as the ADC had, suggest that she was somehow wrong and therefore needed to “pay restitution.” We laid out exactly why Madison was in the right.
After the staff judge advocate and his legal office reviewed our submission, the imposing commanding general reversed his prior decision under UCMJ Article 15 and set aside all punishment, giving Captain Madison Armstrong her future back.
Despite the fantastic outcome, this case is a cautionary tale.
It shows why servicemembers should consider getting outside help and tailored advocacy.
While we are thrilled that the commanding general granted our request for reconsideration, it is important to remember that approach cannot be counted on—he could have easily ignored our submission.
Capt. Armstrong knew something was off when she first got legal advice from her military defense counsel. That was when she should have reached out for a second opinion.
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