Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders with PTSD and TBI and Reduce Recidivism

• Author: Evan R. Seamone
• Position: Judge Advocate, U.S. Army
• Pages: 1-212

MILITARY LAW REVIEW

Volume 208 Summer 2011

RECLAIMING THE REHABILITATIVE ETHIC IN MILITARY

JUSTICE: THE SUSPENDED PUNITIVE DISCHARGE AS A

METHOD TO TREAT MILITARY OFFENDERS WITH PTSD

AND TBI AND REDUCE RECIDIVISM

MAJOR EVAN R. SEAMONE

 Judge Advocate, U.S. Army. Presently assigned as Chief, Military Justice, U.S. Army

Maneuver Center of Excellence & Fort Benning, Georgia. LL.M., 2011, The Judge

Advocate General’s Legal Center and School, U.S. Army, Charlottesville, Virginia; J.D.,

2002, University of Iowa College of Law, Iowa City, Iowa; M.P.P., 1999, School of

Public Policy and Social Research, University of California, Los Angeles; B.A., 1997,

University of California, Los Angeles. Previous duty assignments include Student, 59th

Judge Advocate Officer Graduate Course, The Judge Advocate General’s Legal Center

and School, U.S. Army (TJAGLCS), Charlottesville, Virginia, 2010–2011; Assistant

Professor and Editor of the Military Law Review, Administrative and Civil Law

Department, TJAGLCS, Charlottesville, Virginia, 2009–2010; Labor Law Attorney and

Individual Military Counsel, 7th U.S. Army Joint Multinational Training Center,

Grafenwöhr, Germany, 2009; Trial Defense Counsel, U.S. Army Trial Defense Service

Europe, Grafenwöhr, Germany, 2009; Special Prosecutor, Capital Litigation Division,

XVIII Airborne Corps & Fort Bragg, North Carolina, 2008; Chief, Military Justice and

Special Assistant United States Attorney, U.S. Army Intelligence Center & Fort

Huachuca, Arizona, 2007–2008; Trial Counsel, Fourth Infantry Division (Mechanized),

Fort Hood, Texas, 2006; Detention Review Authority, Multinational Division-Baghdad,

Iraq, 2005; Operational Law Attorney, First Brigade Combat Team, Fourth Infantry

Division (Mechanized), Taji, Iraq, and Fort Hood, Texas, 2004–2005; Trial Counsel,

Special Assistant United States Attorney, and Claims Attorney, Joint Readiness Training

Center & Fort Polk, Louisiana, 2004–2005. Member of the bars of the District of

Columbia, the U.S. Supreme Court, the U.S. Court of Appeals for the Armed Forces, and

the U.S. Court of Appeals for Veterans Claims. Some of the author’s related publications

include Major Evan R. Seamone, Improved Assessment of Child Custody Cases Involving

Combat Veterans with Posttraumatic Stress Disorder, 50 FAM. CT. REV. (forthcoming

Apr. 2012); Major Evan R. Seamone, The Counterinsurgency in Legal Counseling:

Preparing Attorneys to Defend Veterans Against Themselves in Criminal Cases, in

NATIONAL VETERANS FOUNDATION, ATTORNEY’S GUIDE TO DEFENDING VETERANS IN

CRIMINAL COURT (Floyd “Shad” Meshad & Brockton Hunter eds., 2012). The thesis from

which this article originated was submitted in partial completion of the Master of Laws

requirements of the 59th Judge Advocate Officer Graduate Course. The author may be

contacted at evan.seamone@us.army.mil.

2 MILITARY LAW REVIEW [Vol. 208

Preface

After ten years of sustained combat operations, a legal system has

emerged in response to the special needs of servicemembers who have

sustained Posttraumatic Stress Disorder (PTSD) and other unseen

injuries in combat. Recognizing that these wounded warriors experience

symptoms that often manifest in criminal conduct, this justice system

incorporates advanced “problem-solving” strategies in its sentencing

practices. It provides offenders with a second chance to escape the

disabilities of a conviction by dismissing or expunging their charges

upon successful completion of a demanding treatment program. In

contrast to the problem-solving approach, an alternative justice system

adjudicates cases for combat veterans with the same mental conditions.

However, it considers treatment as collateral to the sentencing task. In

this second system, the prosecutor diminishes the wounded warrior’s

injuries and experiences in efforts to downplay the bases for mitigation

and extenuation. While one would expect courts-martial to foster the

I would like to acknowledge the following individuals for their generous assistance in

obtaining historical materials for this article. My heartfelt thanks go to Colonel (COL)

(Ret.) Daniel Lavering, TJAGLCS Librarian; Brigadier General (Ret.) Tom Cuthbert;

Kathy West, Assistant Military Police Historian, U.S. Army Military Police History

Office; Deborah Childers, California State University Stanislaus Library Special

Collections; Angie Henson, Pentagon Library; and Heather Enderle, Professional

Communications Program, TJAGLCS.

For their valuable suggestions and input regarding the ideas expressed in this article, I

would like to extend special gratitude to my Thesis Advisor, Professor (Major) Andrew

Flor; Major (Ret.) Brian Clubb (USMC), National Association of Drug Court

Professionals, Coordinator, Justice for Vets; Hon. Robert T. Russell, Jr., Buffalo Veterans

Treatment Court; Hon. Wendy Lindley, Orange County Veterans Treatment Court; Hon.

Steven V. Manley, Santa Clara County Veterans Treatment Court; Hon. Brent A. Carr,

Tarrant County Veterans Treatment Court; COL (Ret.) Stephen R. Henley; COL (Ret.)

Malcolm Squires, Jr., U.S. Army Court of Criminal Appeals, Clerk of Court; Lieutenant

Colonel (LTC) (Ret.) Pete Grande, Chief of Staff, Military Correctional Complex; COL

(Ret.) Fred Borch, Judge Advocate Gen.’s Corps Regimental Historian; Roger Miller,

Ph.D., Air Force Historian; Major Jeremy Larchick; Professor James Smith, Washburn

University School of Social Work; Professor (Major) Tyesha L. Smith; Professor (LTC)

Jeff Bovarnick; LTC John A. Hughey, Command Judge Advocate, U.S. Disciplinary

Barracks; Major Paul A. White, Clinical Psychologist, U.S. Disciplinary Barracks; Mr.

John Moye, Senior Partner, Moye White LLP; Hon. Charles Zimmerman, Kansas District

Court; Robyn Highfill-McRoy, Behavioral Science and Epidemiology Program, Naval

Health Research Center; Major Kelli A. Hooke; Major Frank D. Rosenblatt; Major Mark

T. Schnakenberg (USMC); Lieutenant Commander (select) Ben Gullo (USCG); Major

Andrew Gillman (USAF); Major Sean Gleason (USMC); Major E. John Gregory; Major

Iain Pedden (USMC); Captain Madeline F. Gorini; Mr. Charles J. Strong; and all persons

who contributed comments in the attributed interviews, telephone conversations, and e-

mails.

2011] REHABILITATIVE ETHIC IN MILITARY JUSTICE 3

problem-solving approach based on the active duty origin of these mental

conditions, the initial legal approach resides exclusively in the domain of

civilian Veterans Treatment Courts (VTCs).

As it relates to offenders with these unseen injuries, the military

justice system is at odds with more than VTCs; it is at odds with itself—

in the way it undermines the stated sentencing philosophy of

rehabilitation of the offender, the way it erodes the professional ethic by

denying core values, and the way it defies the moral obligation to

advance the interests of both the veteran and the society he will rejoin.

By perpetuating the belief that treatment has no place in military

sentencing, the military justice system also undermines Major General

(MG) Enoch Crowder’s very basis for instituting the suspended court-

martial sentence at the time of its origin in the early 1900s. In contrast to

problem-solving courts, which target the illness underlying criminal

conduct, courts-martial function as problem-generating courts when they

result in punitive discharges that preclude mentally ill offenders from

obtaining Veterans Affairs (VA) treatment. Such practices create a class

of individuals whose untreated conditions endanger public safety and the

veteran as they grow worse over time.

This article proposes convening authority clemency as a method to

implement treatment-based suspended punitive discharges for combat-

traumatized offenders. Without re-writing the law, military justice

practitioners can make slight modifications to their practices that

promote intelligent sentencing consistent with the historical notion of the

“second chance.” Recognizing that panels, military judges, and

convening authorities have consistently attempted to implement

treatment-based sentences, this article proposes a comprehensive

framework to embody the innate rehabilitative ethic in military justice.

Carefully drafted pretrial agreement terms indicate how offenders can

enroll in existing VTCs within the convening authority’s jurisdiction. A

modified Sentence Worksheet provides an additional section alerting

panel members to their right to recommend treatment-based suspended

sentences. Specially tailored panel instructions expand on this system by

addressing treatment considerations. At a time when both The

Commander-in-Chief and a Chairman of the Joint Chiefs of Staff have

endorsed VTCs, military justice practitioners should consider the ways in

which these programs promote individualized sentencing, protect

society, and honor the sacrifices of wounded warriors with unseen

injuries.