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Is There Fairness of Punishments in Court-Martial?

Recently, newspapers have spoken of the fairness of punishments in court-martial.  This is especially true in the area of sexual offenses. 

We think a good argument can be made in the case of worthy enlisted personnel, for ‘equal justice.’

Here is one such template:  matters in parenthesis are case-specific; each advocate can supply his/her own data. 


Your Honor, these days, there’s a huge media focus on military justice — a deep concern that in courts-martial, there is one rule for the rich and powerful; and another rule for those who have less power.    They sometimes call it “different spanks for different ranks.”  And it’s especially true in the area of sexual offenses.


Your Honor, I hope that you still experience the idealism we all felt when first entering law school — the fact that the statue of Justice truly was blindfolded.   That “justice for all” must be a reality.


To that end, the law permits Your Honor to be reminded of well-known facts of contemporary life.  In so doing, I think of [e.g., rugby teams…and Academy Superintendents…and  O-6 full professors of history].  I think of what happens to an officer in such situations and what happens to enlisted persons.


One old timer related that he was nourished on the Supreme Court of Frankfurter,  Douglas, and Black –an activist, progressive Supreme Court.   He recalled with particular relish the story told of Chief Justice Earl Warren — from time to time, he would lean down from the bench during oral argument and say something like:  “Counsel, that was a brilliant argument…but the result you seek – is it FAIR?”

Is it fair???

Those are telling words.

As you well know, if an officer gets in trouble, senior leadership likely will place the matter before an Officer Grade Determination board.   In effect, the officer is “demoted” to the highest grade held honorably.  You may recall, a few years ago, the unfortunate case of the Air Force Judge Advocate General, who over and over was highly inappropriate with female judge advocates.  What result?  Reduction to the highest grade held honorably.  That was the end of it.   

You know, if an officer gets into trouble, we have one set of rules.  I may stand corrected, but my research indicates that under the  UCMJ, no general or flag officer has ever spent a day in  a military jail!


In contrast, how can we be equally fair to enlisted accused?  We have to deal with Article 58a of the UCMJ.   Is that result  jail and automatic reduction to E-1 — truly fair and just?   That is what happens, as we all know, if you sentence him to jail for even one day.  Again, in my mind’s eye, I hear Chief Justice Earl Warren, asking — is the result just and right, based on all the facts and circumstances before you?

It is common knowledge, what happened with [the West Point rugby team.   Some of them are likely future generals.  We read about how they engaged in an extremely distasteful and sophomoric practice –  judging  the virtue and character of female cadets at West Point and .  Characterizing them by such words as slut or lesbian.   If justice prevails, what should be the punishment for these individuals?  Consider — there is every possibility that  some of these female cadets — it’s a small Army, after all — will actually serve under these men.   And it is public knowledge that they received what I must characterize as an absurd and laughable sentence.   The rugby team players were allowed to graduate and given mentoring, “journaling”, and self-reflection. [ Good grief.]


The Washington Post reports that the three star general superintending West Point was involved in  inappropriate conduct and censured by the Army Inspector General. And, according to press reports, a full professor of history at West Point was allowed to retire despite inappropriate conduct with both students and female faculty members.  Nothing more happened to these officials.


Your honor, I mean no impertinence — but what would have been the result if this case involved a Colonel  Accused ?  What what would be the result if we were speaking of  Lieutenant.General Accused ?


So the question for you today goes beyond the usual “six and a kick” situation,  I’m advancing two concepts. 

First, there are [at least 10 major factors] ameliorating  what might be the typical sentence for such a case.   May I respectfully suggest that you could scarcely find greater extenuation and mitigation than is present here today.?


I’m speaking now of the really difficult call –what is fair and just?


[Your Honor, I’ve been a litigator for a long time.  I served eight years as a military appellate judge.  From that  experience, may I offer — with greatest respect, two thoughts].


First, if both sides walk away a little unhappy, you have probably done justice. 

Second, when in doubt – err  on the side of mercy.

Apply that to this case.  If you give SFC Accused   even a taste of jail time, he will lose everything.  Think of all[ the war service, the serious mental difficulties  diagnosed by a government psychologist, her thought that his chance of recidivism is almost nil.  Think of the fact that if he is confined, he will end up with “Chester the molester” types — clearly he does not belong with them.  Think of what a Federal court conviction by itself does to him.   Recognize that each stripe, as confirmed by defense evidence, is worth roughly $100,000 in retirement]t. 


I suggest a sentence of  [ reprimand, hefty forfeitures,  and a reduction of no more than one stripe] . Again, please recall that each stripe shaved off his sleeve is worth something like $100,000].

That appears fair, given all the facts and circumstances, including satisfying the ideal of one law governing everyone – a system of  military justice truly uniform to all ranks. 


No man is above the law.  SFC Accused  is certainly not above the law.  But he is not below it either.  He’s not below its even handedness and decency.  SFC Accused  fought for this country over and over again.  He, he is retirement-eligible and has put in his papers.

For all of these reasons, I strongly urge you to announce a sentence which is both compassionate and fair.  Thank you. 

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