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
 
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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, ATTORNEYS 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.

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