Assuming that the court-martialed offense was the only strike on one’s record, could they continue their career in the military and progress as normal or would they be denied future promotions and encouraged to leave?
Don’t need answer fast.
Former active duty, current Reserve Army JAG.
I served as an Army trial defense counsel for 2 years (basically an Army public defender) and yes, if a service member is acquitted of all charges and specifications at a court-martial, then they could continue on with their career and simply being court-martialed cannot be a black mark on their annual evaluation thanks to the constitutional provision that someone is innocent until proven guilty.
However, that service member could still be given a GOMOR (general officer memorandum of reprimand) on their official personnel file that would effectively both make any further promotion unlikely and could lead to the service member being administratively discharged from the military. This would not likely be done after a complete acquittal, since it would look like spitefulness, but as a GOMOR is merely administrative and is not considered punitive, there is no due process required. A service member is allowed to submit written materials contesting the basis for the GOMOR and is allowed to request to make their case in person, but a general officer has complete discretion over the matter and does not even have to consider anything offered by the service member in rebuttal.
In a court-martial, if the service member chooses to be tried in front of a military panel (the rough equivalent, but not really, of a civilian jury), then the military panel also gets to decide the sentence if they vote to convict the accused service member of any of the charged offenses. Their vote to convict only has to be a 2/3rd majority and the same 2/3rd majority is also required for any sentence they decide to impose. If the panel decides not to kick any convicted service member out of the military (only a bad conduct discharge and a dishonorable discharge are permitted at court-martial, depending on the type of court-martial), then the service member’s chain of command can still go set up a post-trial administrative separation board to try and kick the service member out of the military. An administrative separation board is like a mini-trial, but the lawyers representing the command only have to prove any misconduct alleged by a preponderance of the evidence (unlike the beyond a reasonable doubt evidentiary standard at a court-martial). If the board finds that the service member in question committed any of the alleged misconduct, then they can recommend to the primary flag officer in command of the installation that the service member be kicked out of the military with potentially an other than honorable (OTH) or higher discharge.
HOWEVER…
[CSB] I once represented a mid-level NCO who was pretty much universally respected by everyone in her unit. She was charged with theft and solicitation to commit theft when a van she was riding in outside of post stopped after noticing some road cones on the side of the street that appeared abandoned and did not have any markings on them or construction nearby. The driver of the van stopped on his own accord after the female NCO client remarked that the unit could use those road cones for PT (physical training), for use in drills, shuttle runs, and games. Without being asked, a junior solder in the backseat got out of the van, grabbed the cones, and started to load them into the van when another car that happened to have some a-hole JAGs pulled up, yelled at the junior soldier to leave the cones back on the side of the road, and collected the names and unit information for everyone in the van. Only the female NCO was charged and the cones were never actually taken.
After a ridiculous journey, this ended up as a court-martial. At the court-martial, it was brought to light that the command pressured the other soldiers in the van to write written statements that focused on the female NCO and offered a highly slanted version of events. Due to this, the fact that the NCO did not actually order or even ask anyone to stop and collect the road cones, and the fact that mistake of fact as to whether or not the road cones were abandoned was an uncontradicted defense, the military judge acquitted the female NCO as a matter of law halfway through the court-martial before the female NCO could even testify.
Several months later, the female NCO was being seriously considered for a promotion in position and responsibilities but not rank and was denied the position after the brigade commander openly said in front of a 10-15 person staff meeting that anyone court-martialed was not suitable for a brigade level position like the one under consideration. This was an illegal act. The female NCO heard about this comment from someone who was sympathetic to her and who was at the meeting. However, when a complaint was made to the brigade commander’s boss, the general in command of the division, no one at the meeting was willing to make a statement because they were too afraid to risk their own careers by merely confirming what the brigade commander had said. So, the female NCO was effectively punished for just having been court-martialed and acquitted. It would not have followed her to any new unit or new commander, but it seems her chain of command was embarrassed and bitter about the way her court-martial ended and held a grudge against her. [/CSB]
IMHO, the very fact that it even came to a court martial to begin with is proof that that her chain of command had it in for her from the start. If her commander had had her back, he would have made this whole thing go away.
ganthet, When did all of that occur? During my 20 years in, a couple of the actions you describe happening to the service members involved were prohibited.
What does CSB mean?
Cool story bro.
It’s the internet equivalent of the military’s “Now this is no shit.”
Her immediate commander, a female captain who actually liked and supported her, was basically directed by the battalion commander to give the female NCO a company grade Article 15 or the battalion commander would initiate a field grade Article 15 (which was unlawful command influence on the part of the battalion commander). The captain was under the impression from the battalion commander’s directive that she had no choice but to find the female NCO guilty if she had chosen to accept the Article 15 but try and plead her case. When the female NCO naturally turned down the Article 15 and demanded a court-martial, the battalion, brigade, and JAG staff felt like they were being challenged and stupidly decided to proceed with the court-martial.
This all occurred in early 2012 at Fort Carson, CO. There was a pretty toxic command climate there at the time, which particularly festered when combined with a Staff Judge Advocate (military lawyer) shop that was staffed with quite a few sycophants who weren’t capable and/or effective at counseling commanders against certain unwise/illegal actions.
Sounds like any other hierarchical organization, and life in general. You can erase the mark but you can still see something was erased.
That crap was illegal then and still illegal now. You are right; it was a toxic climate.