Your Worst Nightmare

People generally put faith in the judicial system that the truth will bear out, the guilty are punished, and the innocent go free. Practitioners of criminal law likely hold in their memories cases where on either side the wrong result occurred. The judicial system requires proof to an evidentiary certainty, though not proof to a mathematical certainty: that standard is known as proof beyond a reasonable doubt. Society feels comfort in that burden, striking a balance between too high a standard and too low a standard given the impact conviction and its attendant punishment and collateral consequences (most notably in sex crimes as sex offender registration).

What society should feel no comfort in is the oft untold account of what the military does to its service members when there is no proof to an evidentiary certainty: administrative measures. Each branch of the military has at its disposal an arsenal of administrative consequences that do not carry conviction but translate in most cases the end of that member’s career. When the military command takes administrative action, the proof required is only that by a preponderance of the evidence, or more likely than not, often explained as evidence that it happened by a chance of 51%.

Beyond the difference in standards of proof between the military judicial and administrative routes is the vast dissimilarity in processes. First, the opportunity to mount a defense is far more limited in the administrative realm; specifically, the time constraints to respond in writing to a letter of reprimand or general officer memorandum of reprimand is typically seven calendar days. The member who is a respondent to a reprimand was the subject of an underlying investigation, but the member does not receive a copy of the investigation (which is sure to be redacted) until service of the reprimand itself. These investigations are often hundreds of pages and such member is expected to respond in writing most typically within seven calendar days. The opportunity to respond in writing is to address whether or not the member acknowledges the misconduct or contests it and also provide information upon which to request in either case, that the reprimand be filed “locally” so as not to have a lasting impact on the member’s career. Second, the right to counsel is far lesser; an attorney can assist in drafting written matters but has no opportunity to be heard to advocate on behalf of the client. Third, the ability to meaningfully obtain evidence and to demand investigative steps in discovery be taken is nearly non-existent when a member faces administrative measures.

Administrative reprimands typically are the roadblock on the path to administrative separation. Members face separation in one of two ways: 1) the command initiates separation based on the underlying reprimand; or 2) the centralized human resources body initiates separation having found the reprimand in the member’s official record. Even if the command believed that the reprimand and its associated consequences (eventual failure to promote) was sufficient, the drawdown guidance requires that member to show cause why he or she should continue to serve.

Upon notification of the intent to separate, the member has thirty days to respond in writing. If the member is entitled to a board (six years service or initiation of separation for Other than Honorable (OTH) discharge for enlisted personnel), the member cannot be taken to a board any sooner than 15 days after notice as to date, time, and place of the board. Are delays sought? Yes, routinely. Are those delays always granted? Not always.

In a recent board of inquiry for an Army Captain, I sought a six-week delay to conduct the board and cited my calendar with particularity to justify the delay. That delay was denied. So I asked again; again it was denied. Finally, I advised my client to file a complaint under Article 138, UCMJ averring that the command was improperly and arbitrarily denying her the process this client was due. The applicable Army regulation states that “Whenever practicable, the board proceedings will be held in abeyance pending respondent’s reasonable and diligent efforts to obtain civilian counsel. However, the proceedings will not be delayed unduly to permit a respondent to obtain a particular counsel or to accommodate the schedule of such counsel.” The regulation does not define what constitutes undue delay. The client lodged the Article 138 complaint against the commanding general, which means that if he denied the redress, the next higher commander reviews the decision; general officers in command seldom enjoy their decisions coming under scrutiny of any higher authority. The commander opted instead to grant the delay, though the general cited witness availability as the stated reason for granting the delay.

As is often the case when members find themselves in trouble, there is a prolonged period in which that member denies the threat the action poses against his career. These are the same members who no doubt have “faith in the system” that the truth will come to light and the issue will remedy itself.

Those that would criticize my criticism of the military’s administrative measures would argue that the policy behind decreased process is substantially diminished severity of consequences. Though I would tend to agree that administrative separation constitutes lesser punishment than a judicial conviction, separation from the military carries far greater consequence than being fired from any other employer. The DD Form 214 that characterizes one’s service can be the proverbial “Scarlett Letter” depriving that member of future benefits notwithstanding the loss of retirement, pension, and other compensation. Being fired from other employment, though certainly negative, does not carry the same stigma or lasting constraints.

The substantially lesser standard of proof in administrative matters also means that the investigation that purports to substantiate the misconduct is far less thorough than is ideal. Those that conduct the investigations are not trained in investigations (though in truth, military “investigators” lack sufficient expertise or supervision to conduct a thorough and impartial investigation) and their products often fail to adequately answer all the questions that they should.

In my most recent defense of an administrative respondent, the investigation was (in the words of the board’s president) “abysmal.” On behalf of the respondent, we hired a digital forensic examiner to further investigate the alleged misconduct in the hopes of uncovering the truth: that this client was not guilty of any misconduct. Over the course of the fourteen hours that we hashed it out during this board, slowly its members began to see past the superficial level of “evidence” and came to understand that the “investigation” had barely scratched the surface.

Perhaps the greatest reward (other than our victory) was when the client thanked me during deliberations and expressed that no matter what the result, this client was grateful because she received her due process despite the government’s efforts to railroad her out of service. The administrative measures available to the military commander are like a steam engine bearing down the track over a cricket. Facing adverse administrative measures with scant investigations, no rights of discovery, and a timeline that precludes independent investigation, it becomes that member’s worst nightmare. My job is to find a way to derail the steam engine, to awaken that member from his nightmare; it is, in fact, my joy.

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