Council for soldiers?

April 26, 2008 10:53 PM

This is a 3rd party question and as such I am looking more for general information than specific help. It has to do with the military's policy on being gay while serving.

Young solider in the army is told by a 2nd young solider that the 2nd solider is gay. Not a big deal, the original fellow isn't gay, but neither is he terribly freaked out about it.

At a later date the big wigs find out the 2nd solider is gay and will kick him out because of it, but they also find out that the original solder knew about it and didn't report it, and as such he is being threatened with some undefined disciplinary action.

I know nothing about military justice, but given the basics as laid out is there anything the original solider can do? Does he, in general, have any recourse to council or some-such?

(I know advice given is not to be considered official advice)

posted by edgeways to law & government (13 comments total)

There's nothing he can. But, under Don't Ask, Don't Tell, it's unlikely he can or would be prosecuted under UCMJ law for not saying anything, as the rules state: Don't Ask, Don't Tell.
posted by parmanparman at 11:39 PM on April 26

Nobody who has authority to charge him will threaten him. The "don't ask, don't tell" unofficial policy has protected many COs (Commanding Officers), so I SERIOUSLY doubt a piss-on will get in trouble for not ratting him out.

The threat is just that...a THREAT. UCMJ does not say anything about reporting someone violating a morality clause. Sure you can trump something up to TRY to punish the young soldier...but nobody would touch that. It would turn the military into a "lets rat each other out for stuff", rather than "lets protect our own".

Get it? Good luck!
posted by hal_c_on at 11:43 PM on April 26

Tell him to lawyer up (he can either ask for council through the military justice system, or he can retain a civilian lawyer). As noted above, the military still has a "Don't Ask, Don't Tell" policy.
posted by amyms at 11:46 PM on April 26

counsel*
posted by amyms at 11:47 PM on April 26

hmm. yeah, they usually put something in your service record; a written order to the effect of, "If you know of someone breaking the rules you must report it". he had to read and sign this when he was gained by the command. the offense he would be written up on would then be 'failure to follow a direct order'. they used shit like this at my command all the time, especially for underage drinking.

The only thing I can think of for him to do is Deny Everything. how would they prove that he knew? of course the rules for NJP are different than criminal court.

There's always Lawyering Up as well, no matter what the prosecutor says.
posted by ArgentCorvid at 11:48 PM on April 26

Servicemembers' Legal Defense Network has an info sheet with details about what to do if you're investigated for violating DADT. The text of the law itself makes no mention of penalties for third parties who know but don't tell, but in practical terms I have no idea what the realities of your friend's situation might be.
posted by LobsterMitten at 11:54 PM on April 26

They can most definitely charge him with something - it most likely won't be a court martial, but probably an administrative punishment under Article 15. The provision that give them them authority to do so is Article 134 - The General Article - basically if you aren't a good soldier, you can be charged for not being one.

He should stop talking to his boss, commander, and any other personal about this. Tell him to shut his mouth and ask for an attorney. He doesn't have to give any statement - even if he hasn't been charged - ASK FOR AN ATTORNEY! Even if he does get charged and his defense is found lacking, if he's not going to stay in the service, don't worry about an Article 15 action. They don't stay with you outside the military world and those kind of administrative actions rarely effect the nature of the discharge one would recieve. (Unless there is a history of such actions, but given the nature of this question - I am assuming he is a good apple.)

So in summary, you can be charged for anything that is not done according to the wishes of your commanding officer, ASK FOR AN ATTORNEY NOW!, and it's probably not that big of a deal if he loses.
posted by bigmusic at 12:29 AM on April 27

In addition, he can truly claim ignorance. Unless he witnessed the soldier actually engaged in homosexual behavior, then all he knows is that the 1st soldier TOLD him that he was gay. That, in and of itself, is hardly conclusive proof. It could have been a joke, or teasing, or anything else other than the truth.
posted by davidmsc at 12:30 AM on April 27

I was in the Navy for five years so YMMV. If a senior wanted to bring charges against an individual, the senior would most certainly need to witness the event in action.

Note, having a bumper sticker on your wall that says, "Its ok to be gay when youre underway," doesnt mean you can be kicked out unless someone walks in on you slipping it in to another man or whatever applies for a woman.
posted by hammerthyme at 12:52 AM on April 27

The only thing I can think of for him to do is Deny Everything. how would they prove that he knew? of course the rules for NJP are different than criminal court.

He should not lie to them. He should not lie to them. Whether or not he's really in trouble over this, bringing perjury into the game isn't going to help him any.
posted by EarBucket at 5:01 AM on April 27

"He should not lie to them. He should not lie to them. Whether or not he's really in trouble over this, bringing perjury into the game isn't going to help him any."

Perjury typically requires some kind of oath or court proceeding. Lying to the cops as a civilian doesn't count, and it doesn't even count if you lie to the feds (although there's a different crime that applies then)... there might be some other article in the UCMJ about lying to a superior officer, but "perjury" it ain't.

That said... the above advice wrt lawyering up is good. JAG or civillian, either would be able to help here.

That said (this is not legal advice) this sounds like a lot of hot air -- the proof problems for the prosecution in a case like this are insane, unless the defendant did something more than just hear someone else say he was gay. It sounds like they're trying to bully him.
posted by toomuchpete at 7:25 AM on April 27

toomuchpete:"Perjury typically requires some kind of oath or court proceeding. Lying to the cops as a civilian doesn't count, and it doesn't even count if you lie to the feds (although there's a different crime that applies then)... there might be some other article in the UCMJ about lying to a superior officer, but "perjury" it ain't."

There is, of course, Article 107. If your friend has already made a statement, and lied in there, this can come back to bite him.

He can still opt to not talk. He still has the right to not incriminate himself.
posted by ArgentCorvid at 9:40 AM on April 27

The fact that some other soldier told him "I'm gay" doesn't really matter. That's not "gayness" under DADT, at least to my reading (and it's been a while). My recollection was that to be "gay" under the UCMJ, you have to either be buggering some other guy, or attempt to marry them. Intent, desire, or rumor and speculation doesn't count. So it wouldn't be difficult for your friend to construct a defense as to why he didn't say anything: unless he literally walked in on the other guy in flagrante delicto with another guy, he didn't have actual knowledge of the other guy's homosexuality, only hearsay. Thus he was doing the right thing by "not telling."

What seems odd to me is that he's taking heat for this at all. That, to me, suggests that someone in his CoC is gunning for him. More than the particulars of this case that would make me nervous if I was in his position. Military law leaves a lot of room for subjectivity; more, IMO, comes down to whether or not you're perceived as a 'good soldier' and team player than anything you do in fact. If he's walking around with a bullseye on his back, for whatever reason, they're going to eventually find something to nail him with.
posted by Kadin2048 at 11:49 AM on April 27