Misconduct Allegations: Preserve Your Sacrifices as a Reserve Troop

Protect your career and what to do if you are a suspect

On three occasions, different whack jobs made spurious allegations against me.  Each time I was cleared.  Each time, I retained experienced counsel.  None were related to sexual harassment, I will add.  However, allegations of sexual misconduct are on the rise throughout our military.  It is a sad reality that some of the allegations are without merit but are nonetheless incentivized by the current compensation system.  Every complaint, legitimate or otherwise, will be fully investigated and your Commander’s career depends on systematically processing every allegation.  Good order and discipline require that the military enforce standards within the forces.  However, an allegation against you will upend your life and career, irrespective of whether or not there is legitimate evidence.

Hesitate Before Resigning

The military will provide you a free JAG lawyer.  Just do it!  Exercise that right before you talk or do anything else.  It will slow the process.  You also may not know that you are entitled to retain a private lawyer with experience as a Judge Advocate.  Your instinct may be self-preservation and to promptly resign if you have twenty years of military service.  Please do not do that without legal advice.

For now, the important takeaway is that, as law enforcement officers (LEOs), very similar rules apply in the Reserve Component as exist in police disciplinary hearings.  Constitutional due process still applies, even if you are in a military uniform.  You owe it to yourself, and your troops if you are a leader, to know how to preserve your military career and your subordinates.  Indeed, what happens in your military career could have a detrimental impact on your career as a LEO.  So protect them both.

Mobilized, Deployed or Drill Weekend

The types of adverse administrative actions that can be undertaken are too numerous to specify.  It is alphabet soup and depends on your service branch what they call them.  In the end, all such actions are governed by Department of Defense Instructions.  Whether an investigation by the Inspector General (IG), Letters of Reprimand, or “GOMORs,” 15-6 investigations, Separation actions as an enlisted NCO or as an Officer, you are entitled to a lawyer.  Military security clearance can be at risk and without it, you cannot perform your duties.

Your Commander, First Sergeant, Air Force “Chief,” or “Gunny” is not, necessarily your ally.  And if you tell a trusted colleague something, you have now made that person a witness since they do not have attorney-client privilege.  If the Government requests a statement or calls them as a witness, military members are obligated to cooperate unless they have a right not to self-incriminate, which is usually not the case.

Practical Example During Iraq Deployment

Before I became an Army JAG, and even as a gently seasoned Assistant Prosecutor while deployed to Iraq in 2003, members of my Special Operations team were observed drinking in a HMMWV.  The Company Commander summoned me to a meeting and informed me of the allegations.  He ordered that my team members and me prepare sworn statements.  I knew that as a civilian he would not be able to force me to prepare such a document.  But could he demand such a statement while I was on active duty?  What about reserve component duties?  Of course the answer is that if you are accused of something illegal, do not make a statement and exercise your right to counsel.

Administrative Enlisted Separation / Officer Elimination

Reservists are certainly entitled to legal representation when subject to involuntary enlisted separation or officer elimination also.  The characterization of an administrative separation or elimination may negatively affect veteran’s benefits, future re-enlistment in the military and current or future civilian employment.  Understanding the process, the right to an adversarial hearing, evaluating the evidence for separation, securing the testimony of defense witnesses or documents, and the appeals process, all require legal counsel.

One final consideration is that military counsel cannot represent you in civilian jurisdictions or courts, to include cases in federal magistrate courts in military installations and is restricted to proceedings under military jurisdiction only.  You can always retain private counsel and an experienced lawyer can be very valuable.