Administrative separation procedures

Each U.S. military Service has a process to administratively separate (referred to as 'AdSep') someone from the military. This type of discharge is typical for misconduct or unsatisfactory performance. The person's service can be characterized as Honorable (HD), General Under Honorable Conditions (GD), or Under Other Than Honorable Conditions (OTH). The AdSep process is designed to be an effective means of discharging someone from the military without the need for a court-martial, which can be a lengthy and resource-intensive process. However, there have been concerns that commanders are using administrative discharges in cases where a court martial would be more appropriate. This issue was highlighted by Gen. Mattis, then Secretary of Defense, who advocated for more courts-martial. A similar sentiment was expressed, sub silento, by Dwight Sullivan in his writings.

A person who undergoes an administrative separation (AdSep) is not just "fired" but permanently stigmatized, even if they are given a General Under Honorable Circumstances (GD) discharge. This stigma often extends beyond the military, with civilian employers or others equating the punitive discharge from a general court-martial with an administratively assigned OTH. This long-lasting impact on an individual's reputation and future prospects is a matter of significant concern.

There are criticisms of AdSeps that focus on them being biased, perfunctory, "paper drills" with barely sufficient due process. A person separated with a GD has no right to a hearing or counsel, a significant gap in the process. A person recommended for an OTH has the right to a three-person board hearing, counsel, to produce or to cross-examine witnesses, and to give testimony or make an unsworn statement. However, except for relevance, there are no rules of evidence, which raises concerns about the fairness and transparency of the process.

Thus, we have come a long way around to Sierra Ross, Adequate but Not Ideal: The U.S. Navy's Need to Refine Its Administrative Separation Board Procedures. 11 Tex. A&M L. Rev. 715 (2024). The author suggests 

[T]hree possibilities to improve this system. First, the DOD or Navy may design training programs to ensure Senior Members (“SM”), who are the individuals who manage Adsep Boards,\ understand when evidence is relevant, authentic, and competent and are able to explain and apply the factors they consider when characterizing a discharge. Second, the DOD or Navy could create two rules that would only be applicable in cases where a service member could receive an OTH discharge. One rule would be to limit witnesses to testifying about matters about which they have personal knowledge. Another rule would be to limit the type of opinions that lay witnesses can present to the Board. Third, the DOD or Navy could remove OTH discharges from the purview of Adsep Boards and leave this discharge to courts-martial.

The author, Class of 2024, is to be commended for taking on a difficult subject. Several points should be considered. 

1. OTH boards have a (non-voting) 'legal advisor' assigned to them. The LA is available pre-board and could take on the education task. Also, while not present at the proceedings, the LA is available for consultation if there is an issue that needs more experienced advice. It is common in larger commands that the board members have sat on multiple boards and so have greater experience with board rules and making judgments.

2. On page 726, the author alludes to the appeal process: "First, the service member must challenge their separation before a higher-level commander. If that fails, the sailor can appeal, in this order, to the Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit, and the U.S. Supreme Court."

a. In principle, what the Approval Authority says is not "appealable" to a higher authority for enlisted persons. The review process is different for officers because the AA lies with a Deputy Secretary of the Navy.

b. In general, there are administrative remedies that the Sailor has to exhaust before going to court: Petitioning the Board for Correction of Naval Records and the Naval Discharge Review Board. A person must seek relief from the BCNR within three years of a known "error," unless they can show good cause and can seek relief, in the form of an upgrade of their OTH, from the NDRB any time from six months after discharge to 15 years after. Whether these boards are an effective remedy is fodder for a different law review article. Recently, another layer of appeal has been introduced with the DoD Discharge Appeal Review Board.

An interesting career

"William John King had deserted a total of five times in his career in the army. He had (re-)joined the same regiment six times. This was, perhaps, by force, by choice, or because he had no other opportunities available to him. He had spent 6 years and 176 days in India. He had been sent to France in the BEF for 15 days, received a gunshot wound in his right arm, and then been sent home for 20 days. He returned to France for 48 days, before being sent home for 2 years and 65 days, before being sent back to France to fight for 96 days, and finally return to the depot for 1 year and 64 days. He had been court martialled four times. He was detained at the depot three times and imprisoned three times. Ultimately, he had served his 12 years, but had remained in the army between 1902 and 1930 (a total of 28 years). He forfeited his entire service, and it was only reckoned from 10 December 1918 until 24 September 1930, a total of 12 years. He received an army pension as a result only for that period. He was awarded the Victory Medal as part of the BEF16and also the 1914 Star Medal (TNA 1921)17. Perhaps, as previously stated, the time in the army had afforded him the luxuries that he would not have been able to access outside of the army, given his social status and lack of opportunity. The fact that his pension was only reckoned from 1918, therefore, must be seen in the light of the advantages that he had gained while serving: food and accommodation, and perhaps some sense of structure, and employment (although with his own personal adoption of flexibility towards that, from time to time)."

From Andrew Milne, The Typography of Forgetting: The Unsettling of Dominant Social Narratives in the Resurfacing of a Military Deserter in Family Memory, Genealogy 8(2) 60 (2024).

Manxmen of the World, unite!

It's a quiet evening here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. What a nice surprise, therefore, when Blogger reported that we had a hit today from the Isle of Man. To our mysterious visitor (not the first from the Isle), all we can say is "Fastyr mie."

David McBride, ADF whistle-blower, pleads guilty and is sentenced

David McBride, a former Australian Defence Force (ADF) legal officer has been sentenced to 5 years, 8 months following a guilty plea to three charges, including theft of secret documents and sharing them with news media.  He will be eligible for parole in 27 months.  The maximum sentence he faced was life imprisonment.

Mr. McBride pled guilty to the charges after preliminary applications for potential legal defences failed.  In particular, the trial judge, Justice David Mossop, indicated in an earlier ruling that he would not instruct the jury that they could consider McBride's proposed argument that he acted out of a sense of duty to the Australian public.

The Australian Director of Human Rights Watch, Daniela Gavshon, suggested that McBride’s sentencing was evidence that Australia’s whistleblowing laws needed exemptions in the public interest:

“It is a stain on Australia’s reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person convicted in relation to these crimes is a whistleblower not the abusers ..."

This matter has received global news coverage, including from the BBC, and CNN, as well as the Australian Broadcasting Corporation, the news outlet with which McBride shared the secret information.

His counsel have announced that they will appeal (and that fund-raising through social media platforms has provided sufficient financing to appeal).

‘Should civilians be tried in Military Courts?’

‘Should civilians be tried in Military Courts?’ That is the title of an article in The Independent (Uganda), 14 May 2024.

The Supreme Court will deliver its judgment on notice in the case where the government is challenging the Constitutional Court’s decision barring military courts from trying civilians. This pending case was filed as an appeal by the Attorney General following a successful petition by Former Nakawa Member of Parliament Michael Kabaziguruka.

In 2021, the Constitutional Court Majority of Justices ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions within 14 days.

Kabaziguruka first petitioned the Constitutional Court in 2016, challenging the trial of civilians in military courts after being arraigned before the Makindye General Court Martial on charges of treachery, alleging an attempt to overthrow the government of Uganda. He argued that his trial before the military court was unconstitutional and that he had been denied the right to a fair hearing.

Based on this, the Majority of the Constitutional Court justices ruled that although the Court Martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defense Forces. They ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court Criminal Division for either retrial or handling as the court deems fit. The same justices ruled that a civilian can then be charged as an accomplice.