Blog: Military Commanders Misusing Punishments to Avoid Appeals

Tony Carr, blogging at John Q. Public, recently highlighted an incident at Laughlin AFB in which four officers were offered Articles 15 for drug-related offenses. The first officer “publicly argue[d] his case with the convening authority” — and won. His Article 15 was thrown out.

Carr continues with what (he says) the base did next [emphasis added]:

The remaining three officers accused of factually identical conduct based on the same body of evidence likely assumed their charges would be similarly dissolved…

Calculating that the evidence against the remaining three was too weak to survive a genuine challenge, the Laughlin chain of command…opted to achieve the functional equivalent of an Article 15 by formally reprimanding the remaining officers…

Unlike an Article 15 or court-martial, an administrative Letter of Reprimand (LOR) can be issued on the basis of information solely and subjectively evaluated by the issuing officer, without respect to any standard of evidence.

There is no meaningful avenue to challenge or appeal an LOR, and for officers in the modern Air Force, such a sanction is instantaneously and catastrophically career ending…

Carr proposes the Air Force chain of command knew their case was lost, so they knowingly chose to punish the remaining Airmen in a manner they could not appeal:

In other words, since the accused officers couldn’t be convicted and couldn’t be non-judicially punished, their chain of command opted to abandon the law altogether and destroy them administratively rather than admit it had been mistaken about their conduct, or that it could not prove what it initially suspected and therefore had a duty to hold them innocent.

Reportedly, the LORs do not even accuse the officers of drug offenses, but of “failure to adhere to Air Force standards.” The only conduct in question was the use of the word “molly” in private text messages.

There may yet be more to this particular story, but the particulars of this story aren’t even really relevant. What is notable is the ensuing discussion opened up an underbelly of Air Force jurisprudence regarding when commanders can, should, or do impart certain punishments — including the use of administrative action to “punish” someone they cannot otherwise touch, or for whom a “real” punishment would not withstand scrutiny.

(In a similar story, some are calling out the Army for taking adverse action against Soldiers even though the Soldiers have not been formally charged.)

Carr’s supposition puts an interesting light on another situation: Despite the American public being well aware of some Christians in the US military facing official sanction for their beliefs, the DoD IG couldn’t find any evidence of “adverse action” based on religious faith during its investigation, as revealed in the report released in July.

As discussed at the time, “adverse action” is anything above an LOR. So those US troops who have received this type of paperwork — like Chaplain Joe Lawhorn of the US Army — technically didn’t exist, despite being accused of violating US military regulations as a direct result of their religious faith. In a similar situation, Navy Chaplain Wes Modder’s commander tried (unsuccessfully) to take career-ending administrative action against him — yet he never punished him, so Modder, too, was intentionally ignored by the IG.

Kind of makes you wonder.