A Criminal Punitive Discharge-An Effective Punishment?

• Author: Captain Charles E. Lance"*
• Pages: 01

Iii ihis artzele Captain Lance w m w s I.U~-IOUS pstzfica-

ship, and employment in gene~al,among others.

I n eonciuszoli captam Lance reeomrnends greater use of administratiue discharges as an niternatice io the slou. cosily, tunceriain, and pevkaps altirnatelg zn&fec- fiw route of triai by court-martiai with zmposiizon of pumtiur discharges o ~ t

o,ffenders.

I. IKTRODUCTION

At Adobe Wells, Texas in 1876, on a typically hot dry day the garrison troops at this tiny weitern cavalry post are assembled ta witness what any man "with honor" prays will never happen to him The men of the troop stand rigid in a solemn formation while a "dirt devil" whirls dust on their freshly polished boots and the noonday

MILIT.iFtY LAW REVIEW [VOL. 79

sun continues to beat riaan upon them. Sweat beads begin to pap out from underneath their wide brimmed hats before the post commander briikl? steps into the center of their ridioii and calls for attention to ordera

The accused. under guard. is marched into his place of infam) as all q e s first center upon him and then upon rhe Colonel ai his words cut through the hush. Private Daake has been found guilt) b)-a court-martial and has been sentenced to be dischareed from the Arm!- nith a Dishonorable Discharge. Ever!ane at the formation knows ~t but nonetheless btrains to capture ever) a-ord as the Colo-nel reads the general court-martial order which recapitulates the crimes of the accused and hia ignominious conduct.

As the commander virtually spits out the ivords "dishonorable rgeant Uajor steps fomard and itrips off Doake's ribbons. and all other disnncnons and idennf>ing mu shabbs clothing. HE coat is taken from him

and is torr in too and deposited at his feet. An aide brings Doake's enlistment and it is torn into pieces in his face and ~b left to be blown to the pound and trampled into the dirt The Sergeant >lajar then grasps Doake's suard in both hands, raises it high abare his head for ail to see. anti 10 one swift deliberate motion breaks it mer Daake'r head.

The non humbled renegade is inarehed past hi; former eornratler-in-arms as the drums bear out the "rogues march." The httle praeession headr ~ne\itablv toward the main gate where representatixea of his troop. unable to conceal their conternpr. physicall) eject him from the stoekdde. The Colonel then steps forward and orders Doake never to return to the poet upon penalty of death and issues a somber order to those assembled to have no future eonta~twith him

upon fear of court-martial.'

Contrast the abare scene with a letter received by the author from a Dean of Admissions at a )major university aho stater. " I am pleased LO sa) chat ue do not discriminate apamit a person formerly mistreated by the military," when replying to a questionnaire eoncerning the effects of a enminai punitive discharge upon educational

Clearlj- times hare changed greatly. Houerer. despite the pas-sage of an entire eenturj- punitire discharges remain in general mill-

tar) use. While the offender sentenced to a bad conduct or diehonorable discharge is seldom, if ever, ceremonially removed fmm the ranks of the armed services, the punitiw discharge itself remains as a theoretically essential form of military punishment.

The fact that the punitive discharge ha8 survived into the latter part af the 20th Century may he strong evidence of its utility, hut then again it may well be that it haa not only outlived its uzefulnesg but is even harmful to military discipline and efficiency. The punitive discharge 1s maintained probably becauae most military affi-cers, including senior judge advocates. beliere that mch discharges are major deterrents to criminal misconduct. It is likely that the basis of such helief 1s the widely held riew that punitive discharges carry Kith them grave economic cansequeneea. Indeed, this opinion finds ample support from contemporary court opimonr3 and from our national leaders.' The simple truth is, however, that no one reall) knom (including the judge advocate defense attorney counseling a criminal accused on the aubject) what the economic effects of a punitive discharge are.

The purpose of this article then is to re-examine the punitive discharge: to analyze its philosophical underpinnings and then to weigh the consequences to the individual uho receives it against whatever utilit) it may have for the armed services

The format of this article is not that of the typical statistical anal-ysis commonly used for presentation of descnptire dataJ A narra-tive style is used for the comfort of readers who do not deal with statistical data on a daily basis.

There is a vital need for empirical research to determine what are the practical results of various means of separating from the Army thoae who cannot adapt to military life. The author believer that many unehamined assumptiam play an important role in the decision process foiloaed by commanders and their legal advirora when considering whether to refer a ease to trial before a court-martial empowered to impose a dishonorable or bad conduct discharge. The

Stapp v Reear. 314 F Supp 475 IS D S Y 1970). accord. Cnifed Sfatea LJ. ?el

Raberron \ Kealmp. 121 F.

Supp 477 479 (S D Ill 1949)

c s nEP 7 OF DEFENSE. REPORT OP THE T ~ S K

119 (1972).

'A mole formal Bnal?slJ mlgh. ha\e the Eollawng itru~ture. rtaremenl of the problem. varisbler to be meaiured, teehniqves ai measurement. populatm 10 be measured. instrument to be used. ~mplingtechnique employed. bummar? and analysis of reiuhi. and eonelu~ms and recommendatma

OF ~LILITARI JC'STICE

~h THE ARMED

FORCES

FORCE OX THE x ~ M I

same IS surely true of judges and court members confronted with

the necessity to decide whether to impose such a sentence

These assumptions should be compared against objective reality in order to determine whether the means chosen, 1 e.. puninre dia-charges. are effective far achieving the ends desired. ,.e.. to punish malefactors and discourage others from imitating them. among other more abstract goals set forth belou

At the same time, it must be recognized that this article repre-sents the mereat beginning of an attempt to ansuer the question raised above A total of 2.032 questionnaires were sent to various organizations, and 1,339 were received back in useabie form. a rate of response of approximately 658%. It was not practical for the author to increase the rate of response by persistently contacting the nonrespondmg addressees. Aa a result the concIus~ons reached in this article are only teniati\e, and rhe project as a whole does no more than indicate lines along which more formal research efforts ahauld proceed in the future. The data presented are not intended to be used to "prme" the conclusions suggested. ai evidence in a court-martial or in any other similar context.

11. CAPSULE HISTORY OF THE PUSITIVE DISCHARGE

The punitive discharge like io man? of our western Institutions. mores originated with the Greeks, uas passed to the ead through the European continent, and came to us

The early Greeks borrowed a practice of the surrounding prim,. tire peoples when they adopted the sanction of esile for their military and civil undeeirabies.' While this practice was labeled "ostracijm"-stemm,ng from the fact that the early Greeks wrote the name of the mdindual to be purged from the society an a sea shells-rather than "discharge," the similarities in practice and ef-fect are striking.

The Greeks continued their practice of ostracism until their em-pire mas replaced with that of the Romans who instituted a separate

military tribunal to administer military justice.g The tribunal could. for particular crimes, adjudge a Sentence of exile upon an erring Roman soldier.

The Teutonic leaders borrowed the Roman system of jurispru-dence and after the fall of the Roman Empire beran to adapt it to fit

. . the peculiar conditions of the feudal aystem.lo

The "court-martial aystem" or the separate military tribunal had become completely established upon the European continent by 1066 when William the Conqueror carried it to England."

While the system of exile nas present m all these early civilizationsI2 and u-8s one of the punishments available to a military tribunal, the first recorded authorization for a punnive discharge as such is found in the Code of A~ticles of Ring Gustavus Adolpkus of Sweden written in 1621.13 Intereatinglg. however, it only au-thorized this as a punishment for officers," and specifically ztated in Article 126 that no soldier could be cashiered.1s

In England after 1066 the court-martial was maintained by BUC-cessive sovereigns who established rules for the governance af their armed but did not codify those rules until 1666 when James I1 issued his Articles of War.17 The reign of James I1 was interrupted by the Glorious Revolution which ultimately resulted in a reallocanon of power to parliament In 1688 parliament passed an act which gave the sovereign the power to enforce and maintain discipline in the armed forcea.18

The English practice concerning punitive discharge waa unclear until 1688 when the Articles of War of James I1 specifically and for the first time in recorded English history promded in Briting for a punitive discharge for Article 34 of the articles states,

" , . . and whoever shall offend . . . if It be an officer, he shall be

* DAVIS. 8 d p m note 6. at 13

Lo Id

Id

L1 BARUES & TEETERS,

sup70 note 7, at 339

Reproduced in 2 W WIYTHROP. XIILITARI Laa AID PRECEDEYTS

907.918 (2d

Articles af War ai James I1 (1688). reproduced in 2 W ~ ~ T H R D P , mpra note 13.

ed 19201 " I d sf914Llld ar916.

In DAVIS. 8upra note 6, at 2 17 Id at 3

In

Id

sf 920-930

cashiered: and if a private soldier. he shall nde the ivooilen horse, and be further punished as a court-martial shaii think fit "

The Articles of LVar aere updated from time to time and maintained the punitive discharge pronsmn far The latest that influenced the American punitive discharge h Articles of War of 1769 which were in effect...