The Military Justice system (UCMJ) is regularly under scrutiny. Whether it is for a specific verdict, a high-profile crime, or its perceived antiquated laws, there is always something about which to cry foul. In most day-to-day cases, the UCMJ is carried out from cradle to grave by a company commander. An officer, in most cases with four to eight years in uniform, is the judge, jury, and adjudicator. I am not a JAG Officer and this is not a review of UCMJ nor a discussion of its merits. This is a discussion of a method or framework for company commanders to use when holding this power, responsibility, and sacred trust.
Disclaimer: I have zero official legal training and none of this post is legally specific. If you have a legal question ask your Brigade JAG or Trial Defense Services (TDS). This post develops a framework that applies broadly to UCMJ from Flags, Bars, and Article 15 proceedings to separations and everything in between. For that reason it is more abstract and conceptual than it is prescriptive.
Holding UCMJ authority as a commander is too often considered lightly and wielded heavily. Considering how you plan to adjudicate cases and approach situations has to start before the first Soldier is standing in front of your desk. Here is a framework with a few simple steps that have worked for me.
Know the People You Lead
There are critics who will claim this leads you to lose impartiality and become too emotionally connected. Firstly, if you cannot love those you lead and still hold them accountable, then you have bigger problems. Secondly, knowing the individuals gives you a larger understanding of the scenario and the situation. Knowing them, motivating them, and leading them both as individuals and within the character of your organization will help reduce the number of cases that come before your desk. It also gives you opportunities to intervene in moments of recognized risk to avoid negative outcomes.
Consider the Soldier that you know to be consistently positive and upbeat suddenly starts to be withdrawn – if you know her and that this is not par for the course you can start asking the right questions. What about the Soldier who doesn’t have living parents and has been sending money home to support his sister but starts blowing money every weekend at the club? If you recognize this at the start you can counsel accordingly. Proactive involvement, authentic care, engaged leadership, and a good unit culture is the best form of military justice.
When That Doesn’t Work
Soldiers from 2nd Infantry Brigade Combat Team, 25th Infantry Division, stand in formation at the end of Exercise Cobra Gold 18 in Thailand. (Staff Sgt. David N. Beckstrom/Army)
Good leadership and a great culture solves most problems. But, sometimes it doesn’t. Joe gets a vote and sometimes that vote is to stray. When this happens, and it will happen, be prepared to handle it with proportionality, consideration, and compassion.
Each case has a life of its own and its own circumstances. For this reason, the first step is to not make rules.
Step 1 – Don’t Make Rules
Avoid absolutism and precedence aside from those outlined in UCMJ. E.g. We will immediately separate any Soldier who gets a DUI. Firstly, you can’t guarantee that outcome. Secondly, when you go back on it you lose credibility. And thirdly, if you come to a situation where you realize separation isn’t the right answer and voluntarily go a different route, then others will expect the same outcome.
Sometimes the Army sets a precedent and certain actions require specific reactions. But these cases are few and far between. Make it clear to the formation that each case is considered on its merits and circumstances.
Step 2 – Consider the Individual
This is before considering the organization, but it doesn’t mean that the individual should be considered over the organization. These are not in order of precedence. I say consider the individual first because in many cases the outcome is primarily felt by and in response to the individual. Gather all of the pertinent information whether through conversation, an official Investigating Officer and Commander’s Inquiry, or other means in-between. Talk to the individual to the extent in which you believe it is appropriate.
The fundamental purpose here is to ascertain if the actions were a reflection of the individual’s character or outside their character.
Strong organizational cultures have understood and shared expectations. Intentionally develop the character of your organization around shared values and breed it into everything you do. When the formation buys into the shared values they sign on to remain accountable to those values.
This is why knowing your Soldiers is so important as well. It helps in determining if their actions were a mistake outside of who they are, or if they are a window through which to view their character.
Step 3 – Consider the Organization
Each case has a life of its own, but it doesn’t live in a bubble. Every disciplinary action has an effect on the larger organization. Some are smaller than others. At the end of the day you are the commander of the whole company, not just the commander of that one Soldier. You have to consider the impact on the organization.
I don’t recommend making decisions based on sending a message, but you can’t be ignorant to the message(s) you are sending. To best manage the message, send it yourself directly to the formation. There are obviously legal considerations and privacy act factors to consider with what you share. Tread carefully, but be as transparent as possible and as is appropriate.
Step 4 – Consult, but then Own It
Whether it is an Article 15 hearing, a separation proceeding, or just a counseling – every disciplinary action should involve some sort of counsel. I would recommend involving the appropriate supervisors and your First Sergeant (e.g. for a Soldier you might include the Team Leader, Squad Leader, Platoon Sergeant, and Platoon Leader). When the Soldier leaves the room, have a candid discussion with each leader and give them each an opportunity to talk – especially the direct line supervisor.
I always finished with my First Sergeant and placed increased weight on his feedback, but that may be relationship dependent. After you receive feedback and counsel, you need to own your decision. You are the one making the call. You can give credit to the NCO who defended the Soldier if that played a role in your decision, but ultimately you are the one making the decision so don’t farm out the blame.
Step 5 – Compassionate Adjudication
UCMJ authority comes with the power to drastically alter the life of an individual Soldier. You can take their time, their pay, their rank (which also includes pay), their opportunity for promotion, their ability to remain in their job, and more. Don’t take these powers lightly. This does not mean you should be “soft,” but it does mean that you should remain dispassionate about the punishment and compassionate toward the Soldier.
Remember that most UCMJ cases are meant to rehabilitate the Soldier. And even when separating the Soldier from the profession, they are still a person and will remain an American citizen so try to put the best product out into the world that you can. Remind them that their actions do not define them, but how they respond to their mistakes and who they choose to be moving forward will.
If you can punish a Soldier, or even separate them, while still showing them that you love them and care about them, then you are on the right track. I promise you, it is possible. I have stayed in touch with, by their own choice, three Soldiers that I was the recommending authority for their separation. If you treat people with love, dignity, and respect no matter the circumstances then you will be amazed at the outcome.
Quick Hits
Don’t Make It Personal: Center any proceedings on THEIR actions, not your punishment. You aren’t “doing” this to them. Their actions are the cause and they have to face the consequences. We are all responsible for our own actions. Don’t fall into the trap of attaching self-worth to Soldiers’ actions. Their actions are not a slight against you. Keep it focused on them, the organization, and the mission. It’s not about you.
Family Accountability: A practice I have found that helps with managing perceptions is to give the Soldier an opportunity to own his or her actions in front of the formation. Don’t force them and certainly don’t try to embarrass them. But, if you have the right culture they will willingly accept the need to apologize to the formation. We usually did these at Friday “Story Time” and I followed the Soldier to reinforce that we love them and forgive them. It also helps to remind the formation that any one of them could have made the same mistake (in most cases).
Keep Data: Keep outcome based data and descriptive statistics. This doesn’t have to be anything super high-speed and it shouldn’t include any personal information (remember Privacy Act of 1974 requirements). Just keep basic information of infraction type, disciplinary action taken, and outcome of the Soldier. You never know when your Battalion, Brigade, or Division Commander may question your approach or when you may need to defend your process. It is always helpful to add quantitative data to an otherwise qualitative argument.
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UCMJ action is just one tool in your kit bag for maintaining a well-disciplined unit. Don’t fall into the trap of believing that it is THE tool for maintaining good order and discipline. UCMJ action should be a means of supplementing a strong organizational culture, not instilling one.
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With regards to the “Dont make rules” and “keeping data” sections of this piece, be aware that your historical data of UCMJ action for common offenses is a valuable case point to deter higher echelons from establishing rules. Let’s continue with the DUI/ immediate separation example. Your rehabilitation to separation ratio for those having committed DUI is important for brigade commanders to see. Rehabilitating the right soldiers (those with lack of judgment, not those with lack of character) sends, arguably, a greater message promoting individual and team responsibility to the entire organization than a blanket action of dismissal from the Army. I bring this up because the Army has a drinking problem that greatly stems from culture, of which won’t be changed by kicking every violator out. As Company Commaders, 1SGs, and XOs, we have a hand that holds the tools to keep the right Soldiers with character and separate the Soldiers with irreparable value systems.
Very well said Dave!