James Joyner and Butch Bracknell
Defense One
March 6, 2018
A leading lawmaker has called out the Air Force for never trying a single general officer by court-martial in its entire history, suggesting it shows higher-ranking personnel face different standards of punishment. Indeed, courts-martial for flag and general officers in all four services are exceedingly rare, particularly in recent history.
“I think we do have a problem with different spanks for different ranks,” Rep. Jackie Speier, D-California, said in a Feb. 7 hearing into misconduct by senior military leaders, held by the House Armed Services personnel subcommittee. “As I understand it, there have been 70,000 courts-martial in the Air Force, for instance, and not one general officer has ever been court-martialed.” Her observation is technically true, as famed air power pioneer Billy Mitchell was administratively reduced in the Army Air Corps from brigadier general to colonel before his 1925 court-martial for insubordination. Mitchell’s trial was born not of salacious personal misconduct, but of his fiery, scathing critiques of the war department for not advancing the cause of air power with sufficient vigor. How times have changed: Mitchell was tried and convicted for advocating too fervently for his service. In modern days, admirals and generals are far more likely to be punished for corruption, graft, and sex crimes.
While Speier focused her ire on the Air Force, she also cited two former Army generals ― Maj. Gen. Ron Lewis, who used his government credit card at strip clubs in Rome and Seoul, and four-star Gen. William “Kip” Ward, who misused thousands of taxpayer dollars, borrowed military aircraft for personal use, and had staff members run personal errands for him. But while both officers lost a star ― and Ward was ordered to repay $82,000 ― neither was tried by court-martial. Speier omitted the recent, infamous cases of retired Maj. Gen. James Grazioplene, who was recalled from retirement to stand trial by court-martial for sexual assault offenses alleged to have occurred from 1983 to 1989; and Brig. Gen. Jeff Sinclair, charged with forcible sodomy and other charges related to fraternization. Sinclair pled guilty and was sentenced to a fine and a reprimand, then allowed to retired as a lieutenant colonel. Interestingly, Grazioplene’s prosecution will likely end on statute-of-limitation grounds, thanks to a recent landmark opinion by the U.S. Court of Appeals for the Armed Forces.
“A junior enlisted would get prosecuted” for doing what Lewis did, Speier said. Turning to Ward’s offenses, she said, “That’s theft, and under normal circumstances, that would be subject to a court-martial. One of the things that I would like to do…is that we take the time to make sure that everyone is being treated fairly in the military.” Speier omitted that Ward spent 24 months in limbo during the Department of Defense Inspector General’s Investigation as the “Special Assistant to the Army Vice Chief of Staff” – a do-nothing job with no official duties. Ward was paid over $200,000 annually for two years to wait on the completion of an investigation that would quietly end his career and retire him as a lieutenant general, without a public airing of the charges against him. That is certainly good work, if you can get it.
But Lt. Gen. Stayce Harris, the Air Force’s inspector general, disagreed. She said the Air Force’s data don’t show a disparity in punishments, and declared, “We hold our officers, actually, to a higher standard of accountability.”
Speier and Harris are both right. Officers are, from selection and throughout their careers, held to much higher standards than enlisted personnel, particularly those in the lowest ranks. But more senior personnel are also accorded special treatment and do, in fact, avoid punishments for acts that, if performed by a junior enlisted member, would certainly result in trial by court-martial and often confinement, if convicted.
During ordinary times — that is, when the armed services are not desperate for personnel because of a war―it is difficult to receive a commission, but it is easy to enlist. The military institution needs vastly more enlisted personnel. There are recruiting centers all across the country, with recruiters under heavy pressure to meet monthly quotas. Would-be officers, meanwhile, must compete actively for service academy appointments, ROTC slots, and the like. An appointment is no guarantee of a commission; Marine Corps Officer Candidates School boasts a typical 36 percent attrition rate, a figure that shows how seriously the Corps takes the award. Similarly, the promotion process actively tries to pare the officer ranks, with a brutal cut of 30 to 40 percent of the entire cohort at the selection point for major/lieutenant commander around the ten-year mark; enlisted soldiers can easily serve the 20 years to retirement if they’re marginally competent and refrain from major violations of the UCMJ.
Officers and senior NCOs are treated like professionals, whereas junior enlisted are treated almost like children. If a private is a few minutes late to work, all hell breaks loose. If a sergeant or captain is late, it is quite possible nobody will even notice since they typically don’t have a reporting formation. Even if a supervisor notices, they’ll much more readily accept normal “life happens” explanations―sick kid, stuck in traffic, and the like―in view of the responsibility the NCO and officer shoulder on behalf of the institution, and the fact NCOs and officers often work hours long past the time the troops have headed to the enlisted club, planning training and exercises, writing performance evaluations and awards, and studying their profession.
The more senior the soldier, the more they are held to high professional standards. They are expected to know their craft and set the right example for their subordinates. But they are also given much more credit for their past service and more benefit of the doubt for transgressions. Commanders, quite rightly, do not want to end the career of a good soldier, officer or enlisted, after 15 or 20 years of honorable service. Doing so would be not only demoralizing to subordinates, who will be signaled that their contributions, too, will be dismissed if they make one mistake, but the penalty is simply more harsh as time goes on―loss of retirement pay and the end of a chosen career.
For example, one of the authors of this piece was involved in a misconduct case years ago in Iraq: a violation of General Order 1 regarding the consumption of alcohol. Seven lieutenants from a single squadron slated for redeployment celebrated a couple days too early by getting drunk in their quarters on a major U.S.airbase. These seven officers had accumulated scores of Air Medals and Strike/Flight numerals, and had hundreds of hours of combat flight time between them. They were the future of Marine combat aviation in their aircraft type. If the general officer deciding their fate had applied the same standard as he would have a lance corporal in that circumstance, he would have robbed the Corps of a major fraction of a generation of combat aviation expertise. Instead, he took the seven lieutenants to nonjudicial punishment, locked them down for the rest of the deployment, and, upon returning to their home station, set aside the punishment and removed the marker from the record books―never to be mentioned again and recorded nowhere in any Marine personnel record. It was a completely legitimate outcome, because the Corps had millions of dollars and thousands of hours of experience invested in these seven officers. At last count, five of them are now majors in Marine squadrons or on instructor duty, teaching a new generation of nugget pilots how to fly in combat. “One size fits all” punishment in this instance would have been a penny-wise, pound-foolish outcome
Similarly, a general officer will have served at least 22 years before pinning on that first star; four-star officers may be close to four decades in uniform. Because they’re expected to set the highest example, they will be cashiered for offenses―say, sleeping with the wife of a subordinate―that a more junior soldier might survive. At the same time, it would be unconscionable to strip away all they have contributed over anything but a heinous offense that seriously damages their position and the faith that more junior personnel place in them. The example of Kip Ward springs to mind―helping himself to lavish luxuries at the government’s expense, in a salacious display of self-entitlement that would make Caligula blush. Ward’s breaches of integrity earned his inglorious end―yet, even so, his career was ended without a court-martial.
Finally, it is also true there’s a “protect our own” mentality within the “club” of the senior ranks. These people will have served together for decades and will have greater empathy for one another than for a junior soldier. Many of them see leadership of the armed forces as a sacred calling for which few are chosen, and they protect their prerogatives accordingly. There is also the fear that scandals among the senior ranks will damage the prestige in which the profession is held by the general public, which perversely cultures a general atmosphere of See No Evil, Hear No Evil, Speak No Evil. The combination of these factors leads to pressuring generals who have violated the rules to resign quietly―ending their career but keeping their pensions and the lucrative private-sector salary that comes with being a retired flag officer.
This, naturally, looks bad from the standpoint of a young private or a member of Congress. There are, indeed, different spanks for different ranks. But there are also different considerations.