The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process

• Author: Major Elizabeth Murphy
• Pages: 129-190

2014] MILITARY JUSTICE DIVIDE & C-M PROCESS 129

THE MILITARY JUSTICE DIVIDE: WHY ONLY CRIMES

AND LAWYERS BELONG IN THE COURT-MARTIAL

PROCESS

MAJOR ELIZABETH MURPHY*

I don’t want just more speeches or awareness programs

or training, but ultimately, folks look the other way. If

we find out somebody is engaging in this stuff, they’ve

got to be held accountable—prosecuted, stripped of their

positions, court-martialed, fired, dishonorably

discharged. Period. It’s not acceptable.1

I. Introduction

Public outcry over sexual assault and the decisions of senior military

leaders with authority under the Uniform Code of Military Justice

(UCMJ) has cast a shadow over military justice. In November 2012,

then-Lieutenant Colonel (Lt Col) James Wilkerson, a former inspector

general at Aviano Air Base, was convicted of sexual assault; three

months later the convening authority, Lieutenant General Craig Franklin,

* Judge Advocate, U.S. Army. Presently assigned as Judge Advocate, New York Army

National Guard (NYARNG), 153rd Troop Command, Buffalo, New York. As of October

2014, Senior Associate, Tully Rinckey PLLC, Albany, New York. LL.M., 2014, The

Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2004, City

University of New York School of Law; B.A., 2001, University of Michigan. Previous

assignments include: Individual Military Counsel, Trial Defense Services, Fort Bragg,

North Carolina, 2013; Trial Counsel, Area Support Group-Kuwait, Camp Arifjan,

Kuwait, 2012; Judge Advocate, NYARNG, 153rd Troop Command, 2011; Senior

Defense Counsel, Trial Defense Service–Europe, Camp Bondsteel, Kosovo, 2009–2011;

Defense Counsel, NYARNG, 369th Sustainment Brigade, New York, New York, 2008–

2009; Mortuary Affairs Officer, NYARNG, 369th Sustainment Brigade, New York, New

York, 2006–2008; Platoon Leader, NYARNG, 133rd Maintenance Company, Brooklyn,

New York, 2005–2006; Platoon Leader, NYARNG, 102d Maintenance Company,

Brooklyn, New York 2003–2005; Ammunition Officer, NYARNG, 107th Corps Support

Group, New York, New York, 2002–2003; Supply and Services Officer, NYARNG,

107th Corps Support Group, New York, New York, 2001–2002. Member of the bars of

New York, New Jersey, Supreme Court of the United States, Court of Appeals for the

Armed Forces, and the District Court of New Jersey. This article was submitted in partial

completion of the Master of Laws requirements of the 62nd Judge Advocate Officer

Graduate Course.

1 President Barack Obama, Address at the Naval Academy Graduation (May 24, 2013);

see also Michael D. Shear, Obama Calls for ‘Moral Courage’ at Naval Academy

Graduation, N.Y. TIMES, May 24, 2013, http://www.nytimes.com/2013/05/

25/us/politics/obama-naval-academy-commencement.html.

130 MILITARY LAW REVIEW [Vol. 220

overturned his conviction.2 Lieutenant General Franklin may retire as a

Major General after possibly losing a star following “scrutiny of his

handling of sexual assault cases.”3 Congress blocked former convening

authority Lieutenant General (Retired) Susan Helms’s promotion due to

the clemency she granted when she overturned Captain Matthew

Herrera’s 2010 sexual assault conviction.4 She retired from the Air

Force on April 1, 2014.5 These cases have called into question whether

commanders should have the authority to decide the path and ultimate

fate of sexual assault cases. Even if command authority remains intact,

potential loss of a star or the lack of promotion to the next rank in these

aforementioned cases sends the message to senior leaders that severe

professional consequences will result if commanders take what they

think Congress believes to be the incorrect action in sexual assault cases.

The alleged or actual misconduct of senior leaders in the military

also has been an attention-generating topic in the media. On June 14,

2012, then-Colonel James Johnson received what many perceived to be a

light punishment of a $300,000 fine and a reprimand for 15 offenses,

ranging from bigamy to fraud.6 Colonel Johnson’s case was followed by

the investigation of then-General William “Kip” Ward, who was

administratively reduced from a four-star general to a three-star general

2 Letter from Lieutenant General Craig A. Franklin, former Commander, Third Air

Force, to Secretary Michael B. Donley, Secretary of the Air Force (Mar. 12, 2013) (on

file with author) (detailing his reasons for dismissing the charges against Lieutenant

Colonel James H. Wilkerson III); Kristin Davis, Lt. Col. Whose Overturned Sex Assault

Case Sparked Outrage Will Retire, ARMY TIMES, Oct. 2, 2013, http://www.

airforcetimes.com/article/20131002/CAREERS03/310020019/Lt-col-whose-overturned-

sex-assault-case-sparked-outrage-will-retire.

3 Kristin Davis, Lt. Gen. Franklin Will Retire as a 2-star, AIR FORCE TIMES, January 9,

2014, http://www.airforcetimes.com/apps/pbcs.dll/article?AID=/201401091322/ NEWS/

301090021. As of publication of this article, the retirement grade decision had not yet

been determined.

4 Memorandum for Record from Lieutenant General Susan Helms, subject: Disapproval

of Findings in U.S. v. Herrera (24 Feb. 2012); Craig Whitlock, General’s Promotion

Blocked Over Her Dismissal of Sex-Assault Verdict, WASH. POST, May 6, 2013,

http://www.washingtonpost.com/world/national-security/generals-promotion-blocked-

over-her-dismissal-of-sex-assault-verdict/2013/05/06/ef853f8c-b64c-11e2-bd07- b6e0e

6152528_story_1.html; Jeff Schogol, With Nomination Blocked, 3-star Applies for

Retirement, MIL. TIMES, Nov. 8, 2013, http://www.militarytimes.com/article/20131108/

CAREERS03/311080013/Helms-set-retire.

5 Telephone Interview with Lieutenant General (Retired) Susan Helms, former

commander, 14th Air Force Space Command (Mar. 12, 2014).

6 Nancy Montgomery, Former 173rd Commander Handed Reprimand, $300,000 Fine,

STARS & STRIPES, June 14, 2012, http://www.stripes.com/news/former-173rd-

commander-handed-reprimand-300-000-fine-1.180356.

2014] MILITARY JUSTICE DIVIDE & C-M PROCESS 131

and retired after it was determined he engaged in widespread suspicious

spending of government funds amounting to more than $80,000.7 In

November 2012, news broke about an adulterous affair between General

David Petraeus and then-Lieutenant Colonel Paula Broadwell; the affair

also led to an investigation into the personal life of Marine General John

Allen.8 Shortly thereafter, Secretary of Defense Leon Panetta ordered a

Department of Defense (DoD)-wide review of ethics among the senior

officer corps.9 Originally charged with forcible sodomy, on March 20,

2014, Brigadier General Jeffrey Sinclair was sentenced by a military

judge to receive a reprimand and a $20,000 fine after pleading guilty to

charges, including adultery, inappropriate relationships, conduct

unbecoming an officer, and misuse of a government travel card.10 These

stories describing actual or alleged misconduct by senior military leaders

preceded a flurry of proposed legislation calling for changes to the

military justice system.11

The 2012 documentary “The Invisible War” has had an impact on

military justice. The film provides detailed accounts of women of all

services who had been sexually assaulted in the military, and most of

their attackers were not prosecuted.12 In April 2012, then-Secretary of

Defense Leon Panetta mandated that all sexual assault cases be withheld

to officers with, at a minimum, special court-martial convening authority

and in the pay grade of O-6.13 Several of the victims in the film met with

7 Lolita C. Baldor, William Ward, Four-Star General Demoted for Lavish Spending,

Ordered to Repay $82,000, HUFF. POST, Nov. 13, 2012, http://www.huffingtonpost.

com/2012/11/13/william-ward_n_2122379.html.

8 Robert Burns, Petraeus-Broadwell Probe Spreads to Gen. Allen, ASSOCIATED PRESS,

Nov. 13, 2012, http://www.military. com/daily-news/2012/11/13/ petraeus-broadwell-

probe-spreads-to-gen-allen.html.

9 Elisabeth Bumiller, Panetta Orders Review of Ethics Training for Military Officers,

N.Y. TIMES, Nov. 15, 2012, http://www.nytimes.com/2012/11/16/us/panetta-orders-

review-of-ethics-training-for-officers.html.

10 Jeffrey Collins, Army General Fined, Reprimanded in Sex Case, ASSOCIATED PRESS,

Mar. 20, 2014, http://news.msn.com/crime-justice/army-general-fined-reprimanded-in-

sex-case?ocid=ansnews11.

11 See, e.g., Military Justice Improvement Act of 2013, S. 967, 113th Cong. (2013);

Better Enforcement for Sexual Assault Free Environments Act of 2013, S. 1032, 113th

Cong. (2013); Combating Military Sexual Assault Act of 2013, H.R. 2002, 113th Cong.

(2013); Military Sexual Assault Prevention Act of 2013, S. 548, 113 Cong. (2013); STOP

Act, H.R. 1593 113th Cong. (2013).

12 THE INVISIBLE WAR (Chain Camera Pictures 2012).

13 Id.; Memorandum from Sec’y of Def., to Secretaries of the Mil. Dept’s et al., subject:

Withholding Initial Disposition Authority Under the UCMJ in Certain Sexual Assault

Cases (20 Apr. 2012).