Get Back in Line: How Minor Revisions to AR 600-8-4 Would Rejuvenate Suicide Line of Duty Investigations

Author:Major Marcus L. Misinec
Pages:183-214
 
FREE EXCERPT
2014] SUICIDE LINE OF DUTY INVESTIGATIONS 183
GET BACK IN LINE: HOW MINOR REVISIONS TO AR
600-8-4 WOULD REJUVENATE SUICIDE LINE OF DUTY
INVESTIGATIONS
MAJOR MARCUS L. MISINEC*
I hear you, judge. What he did disgusts me and if he was alive, I’d
expect you to put him in jail for a long time. But if I don’t find him in the
line of duty, then the family gets upset and it draws the attention of
higher ups. If I do find him in the line of duty, nobody gives it a second
thought.1
I. Introduction
In 2009, a master sergeant (MSG Bank) is under investigation for
sexual harassment in Afghanistan.2 He is in good spirits and tells others
he is sure the investigation will be over soon. A few days into the
sexual-harassment investigation, a search and seizure authorization is
issued for MSG Bank’s computer and electronic devices.
* Judge Advocate, U.S. Army. Presently assigned as Associate Professor, Criminal Law
Department, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia.
LL.M., 2013, The Judge Advocate General’s School, U.S. Army; J.D., 2005, Cleveland
Marshall College of Law; B.A., 1995, Mount Vernon Nazarene College. Previous
assignments include Brigade Judge Advocate, 43d Sustainment Brigade, Fort Carson,
Colorado, 2012–2013; Command Judge Advocate, 2d Battalion, 10th Special Forces
Group (Airborne), Fort Carson, Colorado, 2010–2012; Administrative Law Attorney,
Headquarters and Headquarters Company, 25th Infantry Division, Schofield Barracks,
Hawaii, 2009; Trial Counsel/Operational Law Attorney, 2d Stryker Brigade Combat
Team, 25th Infantry Division, 2007–2010; Legal Assistance Attorney, 11th Armored
Calvary Regiment, Fort Irwin, California, 2006–2007. Member of the bars of Ohio, the
Court of Appeals for the Armed Forces, and the Supreme Court of the United States.
This article was submitted in partial completion of the Master of Laws requirements of
the 62nd Judge Advocate Officer Graduate Course.
1 A student of the 62d Judge Advocate Officer Graduate Course shared this paraphrased
quote with the author. According to the judge advocate, he received the response from
the appointing authority of a suicide line of duty (LOD) investigation after the judge
advocate recommended that the deceased Soldier be found not in the line of duty
[hereinafter Appointing Authority Quote].
2 This example is loosely based on the author’s recent professional experience as an
administrative law attorney in 2009. Information may have been added or deleted for the
purposes of this article. Specific names, units, and locations have been changed or
withheld to protect the privacy of the military personnel involved, as well as the
surviving family members [hereinafter Professional Experience, Bank suicide].
184 MILITARY LAW REVIEW [Vol. 221
When MSG Bank learns that all of the devices will be searched, his
mood immediately changes because he knows what the search will
uncover—proof of adulterous affairs with multiple civilian and military
women (including one subordinate claiming it was against her will) and
thousands of pornographic images and videos of female Soldiers. A few
hours later, he tells some junior Soldiers that he cannot handle being
court-martialed and going to prison, as well as having to explain
everything to his wife. Master Sergeant Bank says he would rather be
dead. A few hours later, he puts his pistol in his mouth and kills
himself.3
In 2011, Captain (CPT) Wills finds out that his thirteen-year-old
step-daughter just told his wife that he has been sexually molesting her
since she was ten.4 His wife has proof and is going to the police.
Captain Wills hangs up on his wife, gets into his car, and drives off post.
As friends and other members of his unit are looking for him, CPT Wills
sits in the parking lot of a vacated department store, posting a Facebook
message apologizing to his step-daughter and family for the pain he has
caused them. “I cannot live with what I have done” is the last line of the
post. Captain Wills then pulls a handgun out of the glove box and shoots
himself in the head.5
Pursuant to Army Regulation (AR) 600-8-4, line of duty (LOD)
investigations were conducted in both cases to examine the
circumstances surrounding the deaths.6 The two investigations shared
much in common. First, neither of the individuals had a documented
history of mental issues before their suicides. Second, substantial
evidence in both cases indicated that MSG Bank and CPT Wills
committed the wrongful acts of which they were accused.7 Further, both
decedents communicated in some way that they realized the finality of
3 Id.
4 This example is also loosely based on the author’s recent professional experience as a
Battalion Judge Advocate in 2012. Information may have been added or deleted for the
purposes of this article. Specific names, units, and locations have been changed or
withheld to protect the privacy of the military personnel involved, as well as the
surviving family members [hereinafter Professional Experience, Wills suicide].
5 Id.
6 U.S. DEPT OF ARMY, REG. 600-8-4, LINE OF DUTY POLICY, PROCEDURES, AND
INVESTIGATIONS para. 2-3c(3) (4 Sept. 2008) [hereinafter AR 600-8-4]. The author has
personal knowledge that suicide LOD investigations were conducted for Master Sergeant
(MSG Bank) and Captain (CPT) Wills.
7 See generally Professional Experience, Bank suicide, supra note 2; see also
Professional Experience, Wills suicide, supra note 4.
2014] SUICIDE LINE OF DUTY INVESTIGATIONS 185
the acts they were about to commit.8 Finally, MSG Bank and CPT Wills
both had a “motive for self-destruction,”9 which was to avoid the
personal and criminal consequences of their misconduct.
For these reasons and in accordance with regulatory guidance, both
investigating officers (IOs) recommended the deceased be found “not in
the line of duty—due to misconduct.”10 The judge advocates who
conducted the legal reviews found the investigations sufficient. But in
both cases, the approving authorities disapproved the IOs’
recommendations and determined the deceased was “in the line of
duty.”11 Their justification was that the deceased was mentally unsound
when he committed the suicidal act.12 However, the unspoken reason
was that MSG Bank and CPT Wills had wives and children they left
behind to fend for themselves and the command desired to ensure they
received as much support from the Army as possible.13 Consequently,
based on the LOD determinations, both families were eligible to receive
their full contingent of death benefits.14
Though understandable from an emotional standpoint, that approach
is problematic for judge advocates charged with upholding the integrity,
intent, and purpose of laws, regulations, and investigations. The purpose
of AR 600-8-4, for example, is to investigate “the circumstances of
disease, injury, or death of a soldier”15 and not to simply find a way to
ensure surviving family members receive as many posthumous benefits
8 See supra note 7. Master Sergeant Bank told others he specifically could not deal with
the embarrassment of a court-martial, going to prison, and having to face his wife.
Captain Wills never made an attempt to deny his thirteen-year-old step-daughter’s
allegations and instead posted a public apology to her for what he had done.
9 U.S. DEPT OF ARMY, REG. 600-10, THE ARMY CASUALTY SYSTEM para. 5-18d(3) (30
June 1966) [hereinafter AR 600-10]. Based on the evidence against them, both MSG
Bank and CPT Wills would have likely faced significant adverse action for their
misconduct.
10 AR 600-8-4, supra note 6, para. 2-6.
11 See Professional Experience, Bank suicide, supra note 2; see also Professional
Experience, Wills suicide, supra note 4.
12 See supra note 7.
13 In a survey conducted by the author, 12 out of 17 (70.6%) current suicide LOD
appointing authorities (future approving authorities) stated that making sure the surviving
family is taken care of was the most important thing to them when one of their Soldiers
committed suicide. Only one was most concerned with determining the Soldier’s line of
duty status.
14 Id. Part III of this article examines how suicide LOD determinations impact surviving
family benefits.
15 AR 600-8-4, supra note 6, para. 1-1.

To continue reading

FREE SIGN UP