The decision to prosecute a suspect is made by his convening authority (CA). Typically, this is the military member’s O-5 or O-6 commanding officer (herein: commander). The UCMJ was changed in 2014, making it a requirement that in any case involving an allegation of sexual assault, at least the decision to prosecute, or not, be made by an O-6 commander, colonel in the Army, Air Force, Marines, or captain in the Navy or Coast Guard.
In many cases, the suspect’s CA is always wise to speak with his own supervisor to discover what is explicitly or implicitly expected on how the case should be handled. Or, it could be an even higher-level officer making his/her desires known.
The accused will never discover the “hidden” undue command influence that will be determining how the military will dispense their version of “justice.” Higher-level officers are smart enough not to leave an email, or text, trail for defense lawyers to find.
The military knows how to conduct communications in secret. It’s required to plan military operations. This same secrecy is used to make sure a military member is properly convicted and sentenced. Unlawful command influence happens in day in the military, and virtually always in every high-profile case, but because of the clandestine way communication is handled in the military, it’s virtually impossible to prove.
If and admiral or general doesn’t approve of the way a convening authority is handling a case, they can simply take it over, and become the presiding convening authority. This action can literally be done all the way up the chain-of-command until “the brass” feel the case is being handled according to institutional expectations.
EXAMPLE: In 2012, an O-6 (colonel) Marine commanding officer on Parris Island, South Carolina, was the CO of Weapons & Field Training Battalion.
It was reported to him that one of his gunnery sergeants was having an adulterous affair with the wife of another Marine Staff NCO at a different base. After the colonel reviewed the investigation, he decided to handle the situation administratively instead of legally. In other words, he planned to conduct “office hours,” render a decision, and put the entire matter to bed.
His thinking was that with Non-judicial Punishment (NJP) on his record, he would never be promoted to first sergeant or sergeant major, which in essence would be a huge hidden fine on his retirement income – to the tune of tens of thousands of dollars, depending on how long he’d stayed in, and how long he lived.
This seemed to the colonel to be fair and just punishment for a Marine who had, up to that point, a stellar military career and was an infantryman who had put his life on the line repeatedly for his nation in the Middle East. The colonel also felt this was more than enough punishment for a “crime” (adultery) that is not even a criminal offense in the civilian justice system.
On top of it all, the colonel received an emotional phone call from the man’s wife begging him for mercy, and not to send her husband to a court martial.
A few days after the colonel administratively dealt with the problem, he received a terse email from from his boss. She said that she was very dissatisfied with his administrative handling of the case, and she was therefore going to take the case from the colonel, and pursue a full-blown court martial.
Right away, you might say, “hey, you can’t do that. It’s double jeopardy.” Unfortunately, this can be done in the military. To make a long story short, the man was destroyed and the Marines lost a good warfighter.
It all begins at the top, especially in cases involving sexual misconduct. General officers of the military know very well what can happen to their own careers if the case in their command is not handled in compliance with the expectations of politicians on capitol hill, especially from female Members of Congress.
The convening authority could have his nomination for another star, pulled from approval by any one of them. So, they would rather burn an innocent man, than to risk losing a coveted promotion to higher rank.
If a convening authority makes a politically-incorrect decision, even if there is zero evidence against the accused, Members of Congress could, with a wisp of their pens, make sure he/she never gets another promotion.
Make no mistake, this scenario has been playing over and over again for decades. And, every time it does, it sends a chilling subliminal message to all general officers, and convening authorities, “we are watching you, so you had better get it right, our definition of what is “right.”
MORE TO COME…