Outside the Beltway

When Max Punishment is a ‘Slap on the Wrist’

Sexual misconduct in the military continues to frustrate observers.

James Joyner · Saturday, May 4, 2019 · 6 comments

Meghann Myers is the senior reporter at Army Times. She covers personnel, leadership, fitness and various other lifestyle issues affecting soldiers. And she’s quite reasonably frustrated with how the Army is handling is sexual assault in its ranks. But I think she’s barking up the wrong tree here.

Under the headline, “A slap on the wrist for two soldiers who shared nude photos of a third,” she passes on news from an unlikely source:

Two Grafenwoehr, Germany-based soldiers were busted down one rank after an investigation found that they had catfished a soldier and then showed nude photos to other members of their unit, a spokesman for the 18th Military Police Brigade confirmed to Army Times on Friday.

The staff sergeant and private first class each received an Article 15 and a reduction of one rank for bullying, according to the unit’s April newsletter, first posted by U.S. Army WTF Moments on Wednesday.

“The 18th Military Brigade newsletter, ‘Vigilant Justice,’ keeps the soldiers informed, enforces good order and discipline, and serves as a deterrent to future misconduct,” Col. Glenn Schmick, the brigade’s commander, told Army Times in a statement. “Commanders adjudicate each disciplinary action based on the totality of the circumstances.”

That’s the theory, at least.

According to the newsletter, the soldiers created a fake social media account and reached out to a private first class, “pretending to be a fictional romantic interest, in order to build trust and lure the soldier into eventually sending nude photographs of themselves to this fictional person.”

The genders of those involved were not disclosed in the newsletter.

“Once the [staff sergeant] obtained the explicit photographs, they showed the photos and joked about their exploits to other soldiers in the company,” according to the newsletter.

Well . . . that’s not good.

The punishments amount to, generally, a temporary reduction in pay and responsibility, until a soldier is picked up for promotion.

At a time when the Army is fighting sexual assault within its ranks ― and, according to aDefense Department report released Thursday, not making demonstrable progress ― the slaps on the wrist call into question whether commanders are taking harassment seriously.

So, here’s where it gets complicated.

We don’t have much to go on here to judge “the totality of the circumstances.”

One would guess the victim here is female but we don’t know that for sure. It shouldn’t matter but, culturally, it does. If it’s a male—and especially a straight, cisgender male—we might chalk this up to really awful horseplay. If it’s a women, though, this is a rather serious case of harassment. It’s not, however, sexual assault.

Beyond that, “slap on the wrist” is an editorial judgment, not a factual finding.

Indeed, it sounds like the commander give the soldiers in question the maximum punishment under their authority under Article 15: a reduction of rank of one pay grade. Whether s/he additionally docked them half a month’s pay and confined them to quarters for two weeks isn’t stated in the report. I’m guessing s/he did.

Now, depending on the circumstances—and, again, we don’t have enough information from this thin report to assess them in their totality—this may indeed constitute a “slap on the wrist.” But, to punish the soldiers more severely than this would have required taking them to court martial and persuading a jury of their peers beyond a reasonable doubt that they had committed crimes. As retired Navy Commander and current Naval War College professor Doyle Hodges points out, that can be rather hard.

Myers concludes,

In a memo last summer, then-Defense Secretary James Mattis urged commanders to lean more on the Uniform Code of Military Justice.

“Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks,” he wrote.

Falling back on administrative action, though it reduces the time and energy required by the command, should not be the norm, he added.

“Leaders must be willing to choose the harder right over the easier wrong,” he wrote. “Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system. Leaders cannot be so risk-adverse that they lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies in the battlefield.”

Mattis message was frankly rather cryptic. He’s certainly right that “Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.” But it’s not clear what he meant by “Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system.”

Myers interprets it to mean that commanders should refer matter to court martial rather than use their nonjudicial punishment authority. Others in the press share that view.

But nonjunishment under Article 15 is leaning on the Uniform Code of Military Justice—specifically, its 15th Article. And it exists precisely because it’s often appropriate to handle disciplinary matters at the unit level.

Whether the punishment here constituted a “slap on the wrist” is not a judgment I feel equipped to handle without more information that we have. Aside from the gender of the victim and the relationship with the catfishers here, I’m particularly curious about why a staff sergeant and private first class were working together as though they were equals. That’s simply bizarre.

But I will say this much: busting a staff sergeant down to sergeant is more than simply “a temporary reduction in pay and responsibility, until a soldier is picked up for promotion.” While that sort of thing used to be common and something from which one could recover, it’s essentially a career-ender nowadays. The now-sergeant is very unlikely to be promoted back to staff sergeant with a recent Article 15 on their record.

Conversely—and consistent with the spirit of military justice—this is indeed a recoverable error for the former PFC. If they learn from this and straighten up and fly right from here on out, they can in fact quickly regain their former rank and get past this. For an 18- or 19-year-old kid, that’s probably appropriate.

UPDATE: An additional consideration occurred to me after the initial posting: the decision to punish under Article 15 rather than pursuing court martial may well have been made in order to protect the victim. Maybe s/he didn’t want to press charges. Maybe s/he didn’t want to have to testify in open court and have the nude photo shown to yet more people.