In this post, I discuss the administrative discharge process, the main focus of the third week of JASOC. I also explore other pertinent issues from the week. I am posting this article after completing my active duty service. Therefore, please note that I blend the notes I took contemporaneously to my time at JASOC with my reflections from four years on active duty.
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This week was very busy. While we finished our first mock court-martial last week, there was no time to rest. This week, we dove right into administrative discharges, culminating in a mock administrative discharge board on Wednesday. While preparing for our administrative discharge board, we were simultaneously getting ready for our final mock court-martial next week. That court, unlike the first one, will be fully-litigated, rather than a guilty plea. It will, therefore, require much more extensive preparation.
It’s one thing to be busy and work hard. That’s appropriate in both an academic and military environment. But at JASOC, the course covered more material than could possibly be grasped during the time allotted. (This is particularly true given the complexity of administrative discharges in the military.)[1] It’s with good reason that the JAG School, as far as I know, has never run another seven-week JASOC course after my class.
Complexity of the Administrative Discharge Process
I believe the administrative discharge process would have been a good area on which to provide more focus. Administrative discharges are much more common than courts-martial. While actual administrative discharge boards are relatively rare—I never worked one during my time in the military—administrative discharges are extremely common. I did hundreds of those.
Additionally, administrative discharges are a frequent topic of conversation with commanders. I probably had twenty conversations with a commander about a potential administrative discharge for every one conversation about a possible court-martial.
Most administrative discharges are notice discharges, meaning the commander informs the member that he or she intends to recommend his or her involuntary discharge from the military. The member then has a chance to respond. After considering the response, the commander can either terminate the discharge action or send it up to the special court-martial convening authority (usually the wing commander) for final approval. If the convening authority approves it, that’s it. The member’s out. If not, he or she stays.[2]
Only non-commissioned officers and members with at least six years in the military are entitled to an administrative discharge board hearing. Also, no member may receive an under other than honorable conditions (UOTHC) discharge without a hearing. Otherwise, it’s a notice discharge.
The problem is that the Air Force Instructions (AFIs) focusing on administrative discharges are very poorly written and cause significant confusion as to what constitutes permissible grounds for discharge.
Your Role in an Administrative Discharge
There is also significant confusion among JAGs regarding the understanding of our role. I found during my time in the Air Force that JAGs became enamored with their own skillsets and believed themselves to be the deciders on these cases.
But we aren’t.
This misunderstanding led to significant time delays and issues. I had an SJA who wanted to cover every possible issue in the legal review we provided commanders as if we were writing a writ of certiorari for the Supreme Court. Completely irrelevant and/or unnecessary materials were included in the legal review, and she required they be drafted and redrafted over and over again.
This resulted in significant delays, and members waited around for months to be discharged. (The AFI wants command to discharge members within fifteen days of serving them with notice of intent to discharge.) I was aware of multiple members who attempted to commit suicide during these extended delays, and protests fell on deaf ears.
My advice to new JAGs is to remember that the discharge process is meant to be quick, and your job is to determine whether the discharge is legally sufficient. You don’t have to justify the discharge for a press release or for an appeal.[3]
Advisor to the Commander
While you’re welcome to tell the commander if you think it’s unjust or a bad idea to discharge a member, he or she does not have to listen to you. Your issue is whether it is legal. A lot of crappy things are lawful, and you will see a lot of crappy commanders do a lot of crappy things to people. That’s something with which you’ll have to make peace in this job. The military has, in my opinion, been suffering from incompetent and toxic leadership for some time. If you’re expecting to work for people like Hap Arnold or Billy Mitchell, you’ll likely be disappointed.[4]
I, therefore, felt like this would have been an excellent opportunity for JASOC faculty to provide instruction about the nuances of and difficulties associated with the administrative discharge AFIs.
Our role in the process, that is, to say whether it is legal or illegal, would have also been a good topic of conversation. Simply put, if you want to be a commander, apply to OTS to be a line officer.[5] Don’t become a JAG. The JAG Corps has one command billet, and it’s the one-star commander of AFLOA.[6]
Photo by bsoist is licensed under CC 2.0.
Memo Culture
The JAG Corps revolves around writing memos. I don’t mean to be cynical or negative. Legal work is a lot of paperwork in many fields. Time in court is minimal. Actual lawyer work is small. You will write a lot of cut-and-paste memos—canned memos reframed to fit a specific set of circumstances. (I only wrote two legal research memos during my time in the Air Force, and I wrote those on my own prerogative to keep up my research skills.)
The typical legal office is reminiscent of Office Space or Dilbert with military uniforms, interrupted by the occasional exciting court-room experience. This is just the nature of the beast.[7]
If you have a good boss, it’s not that bad. You’ll do what’s required and get to spend more of your time doing stuff that better pertains to your profession. The legal reviews JAGs do rarely need to state more than, “We reviewed the discharge and find it legally sufficient.” (Usually, if it’s legally insufficient, it won’t make it to this point.) Some matters are required by the AFI to include specific language in the memos. Still, the AFI is usually particular as to what words are needed. (They’re generally copy-and-paste jobs.)
If you have a lousy boss, however, your job will be miserable. You’ll spend the bulk of your time rewriting memos as multiple layers of leadership review them, each demanding meaningless stylistic changes and adding information for no articulable reason.[8] I’ve even been aware of some offices where attorney work is reviewed by the Law Office Superintendent, who is the senior paralegal. I don’t think anything demonstrates how removed the JAG Corps can be from the actual practice of law than this.
The Importance of Leadership
Everything is leadership dependent. If you have a good leader who is also a competent attorney, you will probably love your time in the JAG Corps. It’s all kind of a crapshoot.
In my experience, however, pushing paper was the essence of the daily ritual of the job. A good SJA makes everything tolerable and many things enjoyable.
But a bad boss in the JAG Corps is worse than a bad boss at a law firm, a corporation, or really anywhere else because the entire force of the law resides behind that boss. You cannot quit, and you could face criminal prosecution for even perceived insubordination.
Keep this in mind as you contemplate a career in the military. I have no regrets about joining the Air Force. Still, I think it’s important for people to understand what they’re getting into before they make their own commitment.
Administrative Discharge Lessons
On Monday, we spent a few hours discussing the administrative discharge process. Then, the faculty briefed us on the rules of the mock administrative discharge board we were to perform on Wednesday.
Above, I discuss when members are entitled to an administrative discharge board and when they are subject to the notification discharge process. The process gives commanders an extraordinarily large amount of discretion.
It is worth noting, however, that, when an administrative discharge board occurs, the commander is bound by the board’s determination. An administrative discharge board can retain a member in the military even if the commander and the special court-martial convening authority want the member discharged.
This is the case even where the member is board-entitled only because the commander recommends an other than honorable discharge. There is, therefore, a risk to supporting an other than honorable discharge characterization, and I never saw this recommendation absent some genuinely egregious behavior.[9]
Bypassing Due Process
On occasion, commanders may bypass the administrative discharge process to avoid providing certain due process protections afforded at court-martial. So, I was aware of administrative discharge proceedings initiated against airmen for serious offenses that should almost always merit court-martial. The evidence was so weak, however, that the military decided to go the administrative discharge route.
The Administrative Discharge as a Personnel Decision
On the one hand, this makes sense. A court-martial is ostensibly a criminal justice function and requires proof beyond a reasonable doubt for a conviction. It comes with a criminal record, possible jail time, and, where applicable, sex-offender registration.
Administrative discharges, however, are personnel decisions. A finding of guilt requires only a preponderance of the evidence. So, seen as a personnel decision, it makes sense that the more likely than not standard should prevail. Also, the board itself provides significantly more due process protections than someone in the private sector would receive. (After all, generally speaking, a boss in the private sector can simply fire an employee at will.)
Discharge Characterizations
The problem, however, lies with the discharge characterization. The board, with some exceptions, has the power to impose an other than honorable conditions discharge. With it usually comes a stripping of VA benefits and a permanent stigma.
So, when the government convenes an administrative discharge board because the offense doesn’t merit a court-martial, that is perfectly reasonable. It’s taking the lesser, more appropriate action.
When, however, the powers that be bring a case to an administrative discharge board because they can’t prove the matter in court, they demonstrate a cynical willingness to ruin a person’s life without regard for guilt.
In these cases, if the matter were brought to a court-martial, the government knows the member would most likely be found not guilty. That member could then proceed with his or her life and career. Bringing the case to an administrative discharge board is an admission that the government doesn’t have enough evidence to obtain a conviction, and so it takes an easier route. This route also allows for the introduction of unreliable evidence that a military judge would generally exclude from presentation at court-martial.[10]
Mix this sentiment with the political pressures that often accompany military decision-making, and it creates an unreliable system where “more likely than not” really just means easier to justify.
That egregious offenses are ever brought to an administrative discharge board is baffling to me. In my opinion, where the convening authority opts for an administrative discharge board in lieu of a court-martial, adverse discharge characterizations should not be available.[11]
EPRs and OPRs
On Monday of this week, we also discussed EPRs and OPRs, that is, enlisted performance reports and officer performance reports, respectively. These are critical to understand because they are essential when making discharge recommendations for airmen. (The quality of EPRs may determine whether a member should be recommended for discharge, and, if so, what discharge characterization to recommend.) They are also crucial to understand because our OPRs significantly affect our promotion potential. We may also have to write EPRs for the enlisted personnel under us.
Understanding their contents for ourselves and how to write them for others is, therefore, essential.
You will notice in the military that the writeups in OPRs and EPRs are often ambiguous. It has become a habit, even in the military, to avoid directly criticizing the performance of anyone. Consequently, commanders and supervisors find ways to denigrate an airman’s performance through faint praise. So, there’s a kind of secret language to the whole thing that we have to learn.
This is another way to avoid due process. If you write something negative in a member’s OPR or EPR, it becomes what’s known as a referral. This means that the member has the opportunity to respond and appeal the rating to the next higher commander in the chain. Developing a code to convey poor performance (writing short sentences and not filling up the entire space are two examples) allows commanders to bypass this process.
Voir Dire
Finally, on Monday afternoon, we talked about voir dire. This is something that we have to do as part of the mock trial process. This was only briefly discussed at the Army’s JAG school, so I’m a little surprised by the focus it received here.
The fully-litigated court-martial we have to perform includes voir dire. So, Monday afternoon, we received a lecture on the subject. Then the faculty did a demonstration of the process for us to observe.
As a practical note, I never did voir dire during my time in the military. While it just so happened that my courts-martial were all judge alone, my experience is not atypical. Usually, the senior trial counsel assigned to the case performs voir dire.
(As an aside, senior trial counsels are JAGs whose entire job is to serve as the senior trial counsel—thus the name—on courts-martial throughout the country. They typically show up a few days before trial and then leave right after. They’re a great resource during the actual trial, but they don’t do much for you during your preparations. Given their caseload, this is understandable. Nonetheless, some are extremely helpful throughout the process.)
Uniform Inspection
On Tuesday, we started the day with a uniform inspection. There is a military training instructor—the Air Force’s equivalent of a drill sergeant—at the JAG School who had us do an open ranks inspection. He inspected our uniform and gave us advice for preparing for the commandant’s open ranks inspection, which the commandant will personally perform later in the course.
The MTI who did our pre-inspection was aggressive about pointing out flaws in our appearance. This would otherwise have been fine—though I could write a book about how providing enlisted with any appearance of authority over officers has corrupted the culture and created all kinds of issues—but he had a shaving waiver.[12] This struck me as odd. It was difficult to take comments about dress and appearance seriously from someone with an unkempt beard.
He, however, did not seem to appreciate the irony.
Article 32 Hearings
After that, we briefly discussed Article 32 hearings. Once upon a time, Article 32 hearings were called Article 32 investigations and involved a serious investigation into the truth of the allegations.[13]
Now, Article 32 hearings are like a cross between a preliminary hearing and a grand jury proceeding in federal court. (Of course, the US Attorney does not get to select the members of the grand jury from his or her own staff. In the Air Force, the Preliminary Hearing Officer is frequently a Reservist who works for the Staff Judge Advocate, meaning the prosecutor and PHO have the same direct supervisor. In any case, the PHO is appointed by the convening authority.) So, they are a lot less demanding and low key than they once were. I had Article 32 hearings that took all of fifteen minutes. My longest took an hour, though I am aware of a handful that took up to a day.
No case can proceed to a general court-martial without an Article 32 hearing unless the accused (military for “defendant”) waives the hearing.[14]
Miscellaneous Court-Martial Issues
We then spent the rest of the day discussing various aspects of courts-martial, including the discovery process, closing arguments, and defenses.
We also had another brief the commander exercise. In this one, we had to brief one of the faculty members about a hypothetical airman who had been court-martialed for a drug offense but did not receive a punitive discharge.[15] Now the commander was considering whether an administrative discharge was appropriate.
So, we had to give the commander advice on the subject and guide him or her through the process.
The Administrative Discharge
We also received an email around lunchtime that was supposedly from a commander asking questions about the administrative discharge process. We had to respond to the email with specific advice before the end of the duty day. So, it was a pretty long day.
Finally, we ended the day with a discussion about the administrative discharge board script. As I mentioned before, things in the military justice system are scripted out very carefully. While the actual substance is diverse—arguments and witness questioning are not scripted—the other parts of the hearing follow a strict script. So, we had a discussion about this Tuesday afternoon to ensure we were adequately prepared for the administrative discharge board on Wednesday.
The Administrative Discharge Board
Wednesday morning was dedicated exclusively to the mock administrative discharge board. Faculty members played the roles of the legal advisor—sort of like the judge—the board members, and the witnesses. Unlike the court-martial, we had a partner. This allowed us to divide up the work—except we both had to give an opening and closing argument.
It made for a long morning, but the process was pretty straightforward. We knew what witnesses we were going to question. So, we made our openings, questioned and crossed the witnesses, and then made our closing. Those playing the role of the recorder—the prosecutor—had to prepare the script and give a rebuttal after the respondent—the Defense—gave a closing argument.
The rest of the day was devoted to lectures. We spent an hour and a half discussing sexual assault prosecutions and some of the unique challenges that they present.[16] Finally, we got out of class early to get ready to go play ultimate Frisbee.
Athletics
We have an athletics day once per week where we go out and play some game. Last week it was flag football. This week it was Ultimate Frisbee.
Since there are only two flights, the two student flights first played each other. Then the winner played the faculty. And so the tournament went.
It was double elimination, so each flight remained in it until losing twice. By the end, however, our flight had beaten the other flight twice and lost to the faculty once. So, both flights played the faculty for the last game, rather than potentially having to play two additional games. And that is how we ended the day.
Special Victims’ Counsel
On Thursday, we started the morning discussing the sexual assault response program in the Air Force. This included a presentation on the Special Victim’s Counsel Program.
In the Air Force, victims of sexual assault have their own attorneys to guide them through the process. JAG attorneys perform this role, so it is a potential assignment for more experienced JAGs. (It’s often a second or third assignment, as SVCs have to be certified. See my previous post for a discussion on the certification process in the Air Force.) One of the first special victims’ counsels came and spoke with us about the program and his experience in it.
Difficulties Associated with the Program
Though I supported this program, I had mixed feelings about it during my time in the Air Force. I appreciated having an attorney who was representing the victims when I was working the cases. I liked the idea of someone representing their interests and helping guide them through the process.
On the other hand, the program is challenging to navigate for prosecutors, as we don’t have unfettered access to the victims for whom we are trying to pursue justice. It also creates a weird dynamic in cases. The prosecutors represent the government and, theoretically, justice. The defense represents the accused.
And then there’s this third party that represents the victim but only in sexual assault cases of all degrees. (If you survive a brutal attempted murder, you get no counsel. If someone grabs your backside, however, you do.) This third party had some standing in court, but it created a dynamic foreign to the adversarial system on which the American legal system is based.
It also, in my opinion, puts a finger on the scales of justice as it was often two attorneys against one in the accused’s disadvantage. It additionally served as a reminder to the judge and the panel members of the political pressure to address sexual assault in the ranks. (At various times, the military would get heat for not bringing another alleged sexual assaults to trial and then, when more were brought, for high acquittal rates.)
This is significant because all the members of the “jury” work for the general officer that convenes the court-martial. In addition, the “judge” is not an Article III judge with lifetime tenure, independence, and salary protections. Rather, he or she is just another Air Force JAG who answers to senior officers, both in and outside the JAG Corps, and whose promotion and progression the Senate controls. (All officer promotions require Senate confirmation.)
Potential Ethical Concerns
Finally, the SVC is not obligated to pursue justice but rather the interests of the client. This is often the same thing, but not always. The SVC could have exonerating evidence, but, unlike the government, can essentially advocate against the accused in court without turning over that evidence to the Defense. The SVC is not bound by the requirements of Brady v. Maryland in the same way the government is.
Still, to those victims suffering through an arcane system, having an attorney advocate on their behalf can turn an unendurable situation into a necessary lifeline. For that reason, I support the program’s existence. However, the ethical rules for SVCs do, in my opinion, need to be more thoroughly promulgated.
Court-Martial Preparation
After the SVC preparation, we had practical instruction geared toward preparing for the mock court-martial. We had a lecture on the findings and instructions worksheets that the Air Force uses when instructing the members. We also discussed motions practice. (We were expected to make oral preliminary motions at the court-martial but not written motions. In my four years in the Air Force, all motions were in writing, except for one where a military judge allowed an eccentric civilian attorney to make oral motions.)
We also talked about how to admit evidence properly when using demonstrative aids, such as diagrams and pictures. Finally, we had a brief about the rules and nature of the upcoming mock fully-litigated court-martial next week.
Faculty Feedback
We closed the day by breaking up into two groups. Those assigned to be defense counsel went with one group, those assigned to be the prosecution went with another. Some faculty members came and spoke with us to give us ideas and advice about how to handle the case.
We also had lunch with the commandant. There were two commandant lunches during the course, and this week it was my turn. The commandant and the school’s Chief Master Sergeant were out, however, so their deputies filled in.
This was a time when we were able to receive advice from the deputy commandant about our careers and the JAG Corps and just overall life in the Air Force. This was an invaluable experience, and I learned a lot I didn’t previously know. I encourage you to take advantage of this opportunity if you get the chance.
Final Preparations for the Mock Court
Finally, on Friday, we focused on getting ready for the mock court-martial, as it was our last day to prepare. Monday, we have to do voir dire, and Tuesday, we have the actual court-martial. We spent most of Friday morning in a voir dire seminar and the rest of the morning practicing our direct and cross-examinations.
Search Authorizations v. Warrants
After lunch, we had a briefing about search and seizure in the military and how warrants and search authorizations are handled in a military environment. This didn’t have anything to do with our mock court-martial. It was just a lecture we had to receive at some point, and I suppose this was the best place to fit it in.
The System During My Time
For context, I dealt with these a lot during my four years in the Air Force, and the system is bizarre. Generally, the base commander would appoint a base magistrate with the authority to grant search authorizations. (This is most frequently the mission support group commander.) These search authorizations had a force similar to that of a civilian search warrant and could grant authority to search property or seize bodily fluids, such as urine or blood for drug tests. (Of course, a warrant is signed off by an independent judge, whereas the base magistrate answered to the convening authority, a significant difference.)
Despite ostensive efforts to prevent it, these were rubber stamps. I never heard a magistrate say, No, when a JAG supported a request for a search authorization, as they asked us if we thought there was probable cause. They’re not attorneys, so how would they know? We tell them probable cause is a low standard—it isn’t—and they, understandably, rely on our advice.[17]
There is a bit of a check on this, as a military judge can later suppress evidence obtained through a search authorization if the military judge determines probable cause was lacking.
Changes to the System
As I was leaving the Air Force, Congress changed the law to provide that military judges would serve as magistrates. The Air Force didn’t really prepare for this change, though I understand they had a couple of years to do so.
When the law changed, nothing was pushed down for us, so we had commanders, rather than a base magistrate, serve as the search authorities. (A commander has always had the power to authorize searches of those under his or her command. The preference, however, was to utilize a magistrate because it created a greater appearance of independence.)
These low-bar searches do make sense in light of the military mission. While it could never pass constitutional muster in the civilian world, merely requiring military commanders to recognize that their members have some level of constitutional protections seems like enough to pass constitutional requirements in the military environment, where the Supreme Court has provided greater leeway.
Practice Rounds
In the afternoon, we broke up into smaller groups to practice our opening and closing statements with a faculty member. This was probably the most helpful thing we have done so far. This provided an opportunity to really understand how opening and closing arguments are supposed to work in an Air Force courtroom.
Having already graduated from the Army JAG School, I feel that each branch must have its own quirks. These practice rounds provided an excellent opportunity to get a feel for the Air Force’s quirks. Of course, a lot of the advice and instruction you receive inevitably reflects more that individual faculty member’s own personal preference than a necessarily Air Force way. You will get contradictory advice from different experienced JAGs.
Still, it’s good to get that advice and learn from their experience. Maturing as an attorney includes considering everyone’s input and incorporating it into what fits your style. The best instructors—and there were several exceptional instructors in my class—give advice customized to your individual style and strengths.
Maxwell Air Force Base
Friday was also Squadron Officer School graduation. All active-duty captains must attend SOS in residence to make major, and the SOS building is right next door to the JAG School. (I would go on to attend SOS about a year after graduating from JASOC.)
The students had been staying in the same lodging as us since we got here. This being their last week, they threw several parties in the lodging courtyard and were quite loud. We were all glad to see them go.
Another class does not come in until near the end of our training. So, we are looking forward to the peace and quiet their absence will provide over the next several weeks. I’m also hoping that the smaller number of people here will allow the internet to start functioning at least at a 2004 level.
Military-Grade Technology
JASOC is an excellent opportunity for you to get acquainted with the technology of the most powerful and technologically advanced military force that the world has ever known. The internet in the lodging was extremely inconsistent most of the time I was at JASOC. When there were fewer people, it tended to work better, as there apparently was not enough bandwidth to accommodate a full lodging.
At JASOC, this was merely a personal inconvenience, and it is, after all, the military.
This, however, foreshadowed how things would be for the entirety of my career. The internet at work was never fast or reliable, even on good days. It was a constant battle for the most basic technology to work right. The computers were extraordinarily slow and frequently crashed. Essential systems constantly went down. Video conferences—something that could be done with the push of a button on my phone—often took hours to set up.
My advice is to avoid getting in a hurry for anything. Accept that the technology is bad, it will never get better, and plan accordingly. (I once heard a three-star general complain about his computer and internet access in a briefing. If he couldn’t get things fixed, what chance do you have?) If you can get in that state of mind, your experience in the Air Force will be much better.
I saw a meme once with a picture of a truck and the phrase, “Anyone who is impressed by the term ‘military-grade’ has never been in the military.”
You’ll come to appreciate this.
Conclusion
I hope that this post has been helpful. I recognize that it is quite long and that my opinions may seem overly cynical. Please do not take my writing as such. I love the Air Force deeply, and I never once regretted joining.
Still, I think it is essential for those joining to recognize that it is not what you see on television or in recruiting brochures. It is crucial for anyone going in to understand that your experience may be terrible, and, by the time you recognize this, it will be too late. You cannot quit.
You, therefore, need to know why you are joining when you join. If you don’t join for a more significant reason than your own happiness or career ambitions—such as deep love of country, a genuine sense of honor and duty, or an internal drive to serve—you won’t have anything on which to fall back when things get hard. You’ll also make everyone else around you miserable.
I wish that everyone who could would join the military. My time in the military was one of the most meaningful, rewarding, and fulfilling times in my life, despite the day-to-day work being almost universally and perpetually miserable. I want those who join, however, to join with eyes wide open.
The views and opinions expressed in this post are the author’s own and do not reflect the official policy or position of the Air Force JAG Corps, the United States Air Force, the Department of Defense, or the United States Government.
Footnotes:
[1] Complexity may not be the right word. From a legal standpoint, administrative discharges are pretty simple. In fact, the legal offices took on this responsibility relatively recently. Administrative discharges were traditionally the realm of the personnel office. I don’t know the details, but the story is that personnel kept screwing it up. So, the Air Force gave it to the lawyers. In reality, it’s not legal work justifying the use of a licensed attorney. The complexity, however, is not in the law itself but in the large number of things for which people can be discharged and the poorly written regulations governing the process.
[2] Discharging officers is a different beast entirely. Officers have commissions from the President, so discharging them requires a more odious process. The general court-martial convening authority (usually the two or three-star numbered Air Force commander) is generally the decider for officers. Final approval then rests with the Secretary of the Air Force.
[3] While members can appeal their discharges to the Board of Corrections for Military Records, such requests are very rarely granted. The error must generally be egregious for the board to take action. (And sometimes the board just ignore violations of members’ rights.)
[4] You may very well work with people like that, but it’s unlikely you’ll work for them. With some exceptions, the people with whom I worked and who worked for me were some of the most impressive, patriotic, and selfless individuals whom I have ever had the privilege of knowing. I, unfortunately, cannot say the same about any of the senior leadership I encountered, with possibly one or two exceptions.
[5] If you want to lead early, join a different branch entirely. It’s unusual for an Air Force line officer to receive a command billet before making major, and it’s most common not to receive one until you make lieutenant colonel. In the Army or Marine Corps, however, you could be leading a platoon of 40+ people as a second lieutenant and receive a company command as a captain.
[6] Even if you climb up to be an SJA and lead your own legal office, you won’t be a commander and therefore won’t have command authority over the people under you. Even that position won’t be available to you until you make lieutenant colonel unless you become the SJA of a very small legal office as a major.
[7] I would guess eighty percent of what I did would have been better done by a paralegal. In fact, a lot of what I did could have been done by a commander’s administrative support staff. The military justice system and the personnel system were designed to be done without attorneys. Even the existence of a military judge during a court-martial is a relatively new phenomenon. Likewise, as I stated earlier, the involvement of attorneys in the administrative discharge process is very recent. We, as attorneys, have grafted ourselves onto a system that had little place for us, and the nature of the work reflects that.
[8] I think it’s safe to say that no one outside of the legal office will read the bulk of the work product that you produce. They just keep the documents as insurance policies. If they ever get called to the mat for a decision, they can point to it and say, “Look, a JAG approved it.”
[9] For similar reasons, sometimes behavior that could merit court-martial is referred to the notice discharge procedure instead to avoid the chance of an acquittal. If a member is acquitted of a charge at court-martial, the military cannot then initiate discharge proceedings for that conduct. I worked a court-martial for an individual who had previously been acquitted of a similar offense the year prior. The earlier decision to seek court-martial, therefore, caused tremendous issues for the commander, as he had to wait until he had solid evidence that she committed another serious crime to get rid of her.
[10] The rules of evidence do not apply to administrative discharge boards, so evidence that would never be allowed in court can be introduced. While there are theoretically some safeguards through the limited decision-making ability of the legal advisor, the legal advisor is appointed by the same convening authority that convenes the board. This creates a star-chamber like structure. Besides, from the case of which I was aware, legal advisors were just as likely to exclude exonerating as incriminating evidence.
[11] The exception to this would be where an administrative discharge board is convened for an offense for which the member was previously convicted by civilian authorities. The military generally does not court-martial members already tried in state court, and the double jeopardy clause of the US Constitution precludes the court-martial of a member already tried in federal court. Where a member has previously been convicted, thereby enjoying constitutional protections, it makes sense that a board should have the power to impose a UOTHC discharge. A member convicted in federal court for murder, for example, would be ineligible for court-martial, but would still deserve an other than honorable discharge characterization. I also think it may be appropriate for boards to have this option where a member was previously convicted at court-martial but did not receive a punitive discharge. These situations, however, are significantly different than those where a case goes to a board because the government essentially admits it cannot prove the charges in court.
[12] While this could justify an extensive article of its own, I believe that the military made a mistake in creating the E-8 and E-9 ranks, which did not exist until after World War II. The tendency has become to treat these senior enlisted members like second-in-commands to the commanders. This blurs the line between officer and enlisted more than fraternization and other traditional military infractions ever could. The result has been a military where the officers are not the undisputed leaders of a unit. I have seen this play out bizarrely in the JAG Corps, where some (terrible) SJAs deferred to the “legal” opinions of non-attorney paralegals over actual licensed attorneys. In the line, it sets up junior officers for failure where the enlisted disrespect them in favor of the senior enlisted. The reality remains, however, that a brand-new second lieutenant has a commission from the President of the United States. Therefore, by constitutional prerogative and the most ancient of military tradition, that officer possesses an authority far superior to even the most senior enlisted members (up to and including the Chief Master Sergeant of the Air Force). Little marks of privilege afforded senior enlisted—such as parking spots designated for Chief Master Sergeants—that are not provided junior officers further perpetuates this. Those enlisted members who want to take on significant leadership positions should be required to apply for a commission.
[13] The military used to recognize, at least somewhat, the extraordinarily unconstitutional and irregular nature of court-martial proceedings and provide protections to help mitigate this issue. Now the push seems to be to eliminate as much of these protections as possible to make things aesthetically resemble the civilian courts while maintaining the absence of the bedrock constitutional protections those courts provide. Essentially, if it looks fair, it doesn’t have to be.
[14] In my assessment, these hearings are essentially rubber stamps. The general practice is to say, “probable cause is a low standard,” and then behave like it is no standard at all. Reports came through my office that I thought merited disbarment complaints (for example, the PHO finding probable cause without addressing significant defense evidence presented at the hearing). And even where the preliminary hearing officer finds there to be no probable cause, the convening authority can still refer the case to court-martial. The whole thing is essentially meaningless, except that it provides political cover to the convening authority in those cases where he or she actually does want to kill the case.
[15] There are five types of discharges available to enlisted members: honorable, under honorable conditions (otherwise known as a general discharge), under other than honorable conditions, bad conduct, and dishonorable. Bad conduct discharges and dishonorable discharges are punitive discharges and can only be imposed by a court-martial. Officers cannot receive bad conduct or dishonorable discharges. They are instead dismissed, the equivalent of a dishonorable discharge. Members who serve less than one hundred eighty days can receive an uncharacterized discharge, which essentially means nothing. They receive no discharge characterization.
[16] After four years on active duty, I could write whole books on this subject alone. I’d recommend Unwanted Advances as an excellent book that captures the spirit of the hysteria and blasé attitude toward justice and due process I encountered. (Its focus is on the atmosphere on college campuses. There are, however, a lot of parallels to what I found in the military.) I haven’t come across anything that provides good material in the way of the injustices I’ve seen on the other end that doesn’t succumb to sensationalism. (Though, I don’t for a minute doubt the stories of injustices that have circulated through the media.) Whatever narrative one wants to push on the subject—pro-defense, pro-victim, lack of due process, barriers to justice, etc.—I have stories to match. The issue is much more complicated than the way the media and activists portray it. I have seen the guilty go unpunished. I have also seen alleged victims fabricate stories. People are much more complicated than the ideological narratives we tend to push forward on any given subject. This is particularly true in the area of interpersonal interactions. The extremes—the rapist jumping out of the bushes and the “victim” fabricating an allegation of assault—are rare occurrences. I saw very few Harvey Weinsteins and only a handful of Brian Banks.
[17] Whether probable cause is a low standard is a matter of controversy. I believe, however, that the Air Force—where it performs legal analysis in this area at all—has taken the Supreme Court’s statement about the low bar of probable cause in Kaley v. United States out of context to further this argument. 134 S. Ct. 1090 (2014). See William Ortman, Probable Cause Revisted, 68 Stan. L. Rev. 511 (2016) for a more thorough evaluation of the history of the probable cause standard.
See Also:
Week 2 of the Judge Advocate Staff Officer Course
Week 4 of JASOC: Get In The Courtroom
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