Independent discretion by each commander
Article 37(a) states that no one may attempt to coerce or influence the action of any convening, approving, or reviewing authority with respect to his judicial acts.
R.C.M. 306 says that each commander has discretion to dispose of offenses, and that a superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.
The key to these problems is to recognize that if the superior commander disagrees with how the subordinate commander is disposing of the case, the superior commander should withhold that case to his or herself rather than trying to get the subordinate commander to change his or her mind. This may cause some logistical problems but that is the cost of preventing UCI.
Sample UCI Cases
United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995). The UCI occurred after the GCMCA has referred the case, so no impact on the accusatorial process.
United States v. Rivera, 45 C.M.R. 582, 583 (A.C.M.R. 1972). It was improper for a battalion commander to return a request for Article 15 to company commander with comment, “Returned for consideration for action under Special Court-Martial with Bad Conduct Discharge.” The court noted that “The fine line between lawful command guidance and unlawful command control is determined by whether the subordinate commander, though he may give consideration to the policies and wishes of his superior, fully understands and believes that he has a realistic choice to accept or reject them.” Here, the court found that the company commander did not and so reversed the case.
United States v. Griffin, 41 M.J. 607 (A. Ct. Crim. App. 1994). The division commander issued a five-page policy letter on physical fitness and physical training addressed other fitness considerations such as weight, smoking, drinking and drugs, and which said: “There is no place in our Army for illegal drugs or for those who use them. This message should be transmitted clearly to our soldiers, and we must work hard to ensure that we identify drug users through random urinalysis and health and welfare inspections.” The SJA took action when he learned about the letter and had the CG issue a new letter without the offensive language. The defense counsel further improved his client’s position by negotiating a waiver of the issue. While there could have theoretically been UCI in the referral process, the issue was waived. See also United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (arose out of the same facts as Griffin).
United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008). In support of an unlawful command influence motion, appellant introduced an email from the convening authority to his subordinates addressing a variety of command management issues and containing a thirty-one page slideshow. One slide contained the following statement: “Senior NCO and Officer misconduct – I am absolutely uncompromising about discipline in the leader ranks.” Some noted examples included: “BAH Fraud, Fraternization, DUI, Curfew violations, Soldier abuse, Sexual misconduct.” The appellant was charged with BAH fraud. The defense also presented evidence that a deputy commander of a subordinate unit addressed a “newcomer’s briefing” with a warning that “BAH fraud is an automatic court- martial here.” Further, the CA contacted the appellant’s rater and senior rater during the preferral process to ensure that the accused got bad remarks on his evaluation. Later, the CA, upon SJA advice, issued a clarifying email. The military judge allowed full litigation on the issue, and the other convening authorities in transmittal chain testified that they had exercised independent judgment, and the military judge allowed extensive voir dire of the panel members. CAAF held that the government met its burden of demonstrating beyond a reasonable doubt that the proceedings were not affected by actual unlawful command influence or the appearance of unlawful command influence.
United States v. Gerlich, 45 M.J. 309 (C.A.A.F. 1996). After a commander subordinate to the SPCMCA adjudged an Art. 15, the victim went to the IG, when then wrote to GCMCA, who told the SPCMCA that he needed to relook the case because he thought that the Art. 15 would not achieve the GCMCA’s justice goals. He told the SPCMCA to decide whether further action under the UCMJ was warranted. The SPCMCA then directed the lower commander to set aside the Art. 15. Charges were ultimately referred. The SPCMCA eventually testified and said that he used his independent judgment when deciding on the ultimate disposition and changed his mind based on what he learned in the subsequent investigation. CAAF stated, “[W]e have previously recognized the difficulty of a subordinate ascertaining for himself or herself the actual influence a superior as on that subordinate.” Here, the court thought that the SPCMCA considered all of the relevant information prior to being told to relook the case and only changed his mind after receiving a letter from the superior commander that suggested that he change his mind. CAAF found that the government had not met its burden to show no UCI and so reversed the findings.
United States v. Wallace, 39 M.J. 284 (C.M.A. 1994). A company commander imposed Art. 15 punishment on the accused. The battalion commander learned of additional misconduct by the accused and told subordinate commander, “You may want to reconsider the [company grade] Article 15 and consider setting it aside based on additional charges.” The company commander considered the new information, set aside the Article 15, preferred charges and recommended a court- martial. The company commander testified that he felt influenced to reconsider his original decision, but not to come to any certain conclusion after having reconsidered the new information, and that he did not feel any pressure related to making his final decision. CAAF said that these facts did not amount to UCI (note, this is a pre-Biagase case so that analysis was not used). The military judge had fully developed the record and CAAF agreed with the trial judge that the company commander had exercised independent discretion.
United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004). In a conference call with three subordinate officers, the senior officer “very clearly and forcefully made his opinion known” to subordinate that case was too serious for nonjudicial punishment and that article 32(b) investigation was warranted. The military judge also found that the subordinate officer knew that the disposition of the case was his to make. While in a void the conference call would look like UCI, the military judge’s factfinding filled in that void and showed that UCI did not actual occur. In particular, the subordinate commander was the one that initiate the conference call, and that after the conference call, it was clear that the subordinate commander was free to make his own decision.
United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984). No evidence that the commander’s improper comments had any impact on any subordinate’s decision to swear to charges or recommend a particular disposition of charges.