A common sense and accurate perspective on Unlawful Command Influence in Military Sexual Misconduct cases was authored by an anonymous, falsely accused, wrongfully convicted and incarcerated servicemember, whose case has been vetted and who is currently in the appeals process. The service member wishes to remain anonymous so as not to jeopardize the service member’s appeal. The author’s opinions provided here are of the author. SOH has provided commentary.

Unlawful Command Influence in the Military Prosecution of Sexual Offenses

By Veritas, a falsely accused, wrongfully convicted and incarcerated service member.

save-our-heroesThe U.S. Armed Forces is the most efficient warfighting organization in the world. However, such efficiency often takes place at the expense of its service members and veterans. This was true when the Department of Defense (DoD) refused to investigate claims of “shellshock” after World Wars I and II; cancer and diseases related to Agent Orange following the Vietnam War; nerve agent exposure after Operation Desert Storm in Iraq; illnesses from the “burn pits” of human waste throughout Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom; both Post traumatic Stress Disorder (PTSD) and Traumatic Brain Injuries (TBI) also in Iraq and Afghanistan; as well as sexual harassment/assault in recent years.

Today, in knee-jerk response to the latter, the DoD is convicting its service members and veterans at an alarming 90% rate with very low standards of evidence that fail to meet any standard of reasonable doubt – especially after the lower state courts dismiss charges for the same accusations. This aggressive push to “make an example” of anyone accused of a sexual offense too frequently results in the most innocent of men being charged with the most heinous of crimes – generally with little to no evidence other than mere hearsay. This not only fails to “set an example,” but also falls short of deterring actual criminals in a nation that already has one of the highest incarceration rates in the world.

SOH Commentary: It is quite common for sexual assault allegations reported to and investigated by civilian authorities to result in no criminal charges being filed, primarily due to lack of probable cause and evidence. These same cases are routinely prosecuted, and convictions are obtained in military tribunals. [1]

The concept of “setting an example” is nothing more than a trend in sentimentalism which results in the careless imprisonment of innocent men accused of various sexual offenses in the U.S. Armed Forces. Many politicians, special interest groups, and military leaders are making arbitrary public statements in the name of a “solution.” This means actual innocence is sidelined for political and career points, all to give the appearance of solving the DoD’s widespread and longstanding problem with sexual harassment/assault. The lives of innocent men do have value, and no politician, military leader, or government prosecutor should be using them to pursue grade, rank, or position.

Those of us service members and veterans who currently stand accused of sexual offenses are not wild animals that must be caged to make us law-abiding citizens. We are your brothers, fathers, husbands, and sons. There must be checks and balances to the federal, state, and military courts to make sure that justice goes to the guilty and not-guilty alike. This injustice is a matter of branding. As a culture, we dehumanize any and all men who stand accused of a sexual offense with horrible names, depriving them of their true labels of “brother,” “father,” “husband,” or “son” well before courts-martial and appeals could prove our genuine innocence. These labels should be irremovable and unconditional.

As a result, the U.S. Armed Forces – with misguided political pressure – is casting its net far and wide not only to catch actual rapists and pedophiles, but also to carelessly net innocent men in the name of a “solution.” Again, this is to compensate for the military’s apathy for sexual harassment/assault in its not too distant past. No longer is the face of a sexual offender a man with an untrimmed mustache and a panel van or a female teacher desperate for young lust, but an angry and depressed adult who always lived virtuously and will go to any lawful length to restore their stolen livelihoods and sullied reputations.

It is often said the military should serve as a model for civic society. What this really means is that politicians and special interests deliberately use the U.S. Armed Forces for their social engineering experiments because service members and veterans do not have any constitutional rights. It is a dirty, little secret that the Uniform Code of Military Justice (UCMJ) falls outside and independent of the U.S. Constitution. If a politician or special interest demands for the DoD to adjust its policies, they may simply fire, harass, remove, or threaten military leaders until their ultimatums are met. This is unlawful command influence from the highest levels: Congress and the Pentagon. However, the average service member or veteran has no recourse whatsoever to keep a social engineering experiment from damaging their careers or retirement benefits. In short, the American airman, coast guardsman, marine, sailor, or soldier has no constitutional rights; they simply do not exist.

The Obama Administration knew this when they used emotionally-charged public statements to further restrict the court-martial rights of service members and veterans accused of a sexual offense. In these speeches over the Military Justice Improvement Act, various politicians and obsequious military leaders striving to make a career move from strategy to policymaking too often portrayed – and betrayed – the common airman, coast guardsman, marine, sailor, or soldier as a sexually-aggressive troublemaker.

For example, Sen. Barbara Boxer (D-CA, 1993-2016) commented on the FY12 DoD Sexual Assault Prevention Response Office [SAPRO] Annual Report on Sexual Assault in the Military: “There are thousands of felons walking around – free and dangerous – in the military today.” This comment was based on merely one finding by Sen. Kirsten Gillibrand (D-NY, 2009-present): “[An accused man] was allowed to be discharged in lieu of trial and faced no legal consequences or appropriate punishment. That an admitted sex offender was allowed to go and live freely in an unsuspecting community suggests a disturbing disregard for public safety.” [2]

No, these figures do not show this to be true [3], but Sen. Boxer deliberately misconstrued them with an emotional appeal to something about “thousands of felons.” A felon is someone who was found guilty of committing a felony at either the federal or state levels. It has long been the custom of even local unit commanders to discharge any service member convicted of a felony from the military.

No, what Sen. Boxer was referring to were cases in both the UCMJ and state levels in which a sexual offense accusation failed to meet a “reasonable doubt” standard of evidence. At the federal level, an allegation must meet a “beyond a reasonable doubt” [4] standard, which was also true of the UCMJ prior to the 24 June 2014 update to the Rules for Courts-Martial (RCM). However, the Obama Administration used special pleading to not only decrease the UCMJ standards for sexual offenses in Article 120, but also to lower it well below any “reasonable doubt” benchmark.

As a result, they stripped the General Officer and their Convening Authority of the power to overturn or set aside a wrongful court-martial decision. They also incentivized an accuser’s testimony, as well as eliminated the defense’s ability to properly cross-examine or present counter-evidence under the guise of “don’t blame the victim.” The reward and incentive plan does not only apply to accusers, but also to military leaders willing to turn a blind eye to such injustices.

On 16 May 2013, Pres. Barack Obama (D-US, 2009-17) stated, “I think Secretary of the Army [John M.] McHugh made a very good point, which is I’m not sure we’ve had incentive from some of our top people to understand this is core to our mission as anything else, and we’ve got to reward them, not think of this as a sideline for anything else they do, but an incentive ambitious folk in its ranks to make sure they understand this is important” (italics mine).

NO, there should never be an incentive or reward for a leader performing an assigned task; it is a bribe when used to blind them from properly administering justice. When Sen. Boxer referred to “thousands of felons,” she was, in reality, alluding to service members and veterans who were accused of a sexual offense by the UCMJ or a state court, but were not convicted because their cases failed to meet a “reasonable doubt” or “beyond a reasonable doubt” standard. Various special interest groups and lobbyists, who had the ear of the Obama Administration, argued that most sexual assault cases do not provide sufficient physical evidence to meet these criteria. Their answer was to completely remove any and all standards for evidence or witness, resulting in many accusations being wholly abstract and politically charged – a total lack of justice.

Katie Cherkasky, a former Judge Advocate General (JAG) attorney and the very first Special Victims Prosecutor in the U.S. Air Force, opined,

“In this position, I learned exactly the extent the military will go to destroy a person accused of sexual assault and protect at all costs the accuser, no matter how weak or obnoxious the facts of the case.” [5]

Likewise, one of the first things an accused service member or veteran hears when they initially meet their military Trial Defense Service (TDS) counsel is: “The General [Officer] has to make their next star.” In other words, the Convening Authority deliberately blinds itself from making a just and lawful decision because the General Officer must appease Congress to make their next rank.

This was no more apparent than when Sen. Claire McCaskill (D-MO, 2007-19) moved to block the nomination of Lt. Gen. Susan Helms to the Vice Commander of the U.S. Air Force Space Command because she overturned a sexual assault case as a General Court-Martial Convening Authority (GCMCA). Sen. McCaskill pursued another General Officer for the same reason: “Lt. Gen. [Craig A.] Franklin’s conduct undermines this important shift … his decisions shows ignorance at best, and malfeasance at worst; I strongly urge you to undertake an immediate review of his conduct and consider removing him from his leadership position.”

SOH Commentary: It is the biggest secret/non secret unwritten understanding in the military. Any convening authority who decides whether or not to refer a sexual misconduct allegation to court martial, fully understand that if he or she does not send virtually every allegation forward, their names will be secretly ‘flagged’ by the Senate Armed Services Committee, Sub Committee on Personnel, the ranking member being Senator Kirsten Gillibrand [6].

That convening authority who does not do the senator’s bidding will ultimately experience the wrath of a loss of promotion, assignment or reassignment and loss of training billets; perhaps even being forced from the military or into involuntary retirement. That fear of negative career implications has resulted in the conviction and incarceration of hundreds; perhaps thousands of innocent service members, destroying families and in some cases resulting in suicide. Some G.O. Convening Authorities do their jobs correctly and exercise their judgment correctly but sadly that is the exception rather than the rule.

NO, the malfeasance in this case was the deliberate blinding of a lawful commander with ad hominem attacks and threats to his career because an accuser could not reach a “reasonable doubt” standard. This is what the “important shift” rhetoric means: to essentially punish someone because they may be guilty of the accusation. In no other criminal court setting could a judge or jury declare the accused “guilty” without sufficient physical evidence. A murder indictment calls for a dead body; a financial crime demands a paper trail; and a theft requires missing property. A sexual offense is no different, and no amount of special pleading should state otherwise. There is evidence of molestation, rape, sexual assault, etc.

This essay is not a justification of these heinous crimes, or a defense of those who are truly guilty of committing them. However, politicians and military leaders prioritize their own careers over those of the common service member or veteran – incentivizing any and all charges with a desire to “send a message” for the sake of mere appearances. This was the exact public statement made by Secretary of Defense Leon Panetta (2011–13) on 7 April 2013: “The most important thing we can do is prosecute … not only prosecute those that are involved, but more importantly to send a signal that this is not a problem” (italics mine). It was in 2014 that the removal of a Convening Authority’s power to overturn a court-martial decision went into effect.

SOH Commentary: Incentivizing does not only come with incentivizing, or rather the implicit unwritten understanding (threat) that if a C.A. does not refer virtually all allegations of sexual misconduct to court martial, that their careers will be in exile. There are tremendous incentives for those who file false allegations of sexual misconduct.

Those who falsely accuse stand to reap the rewards of generous benefits in the form of transitional compensation or V.A. benefits. Revenge, absolution for one’s own misconduct, avoiding deployments and obtaining a preferential duty station are at the top of the list.

There are now over two dozen websites and Facebook pages set up primarily for the purposes of guiding and instructing those who wish to financially ‘game’ the system, what statements and comments to make in order to obtain benefits. With virtually no oversight or scrutiny, the V.A. and transitional compensation programs are defrauding the taxpayer out of hundreds of millions of dollars a year.

Given that state courts, Child Protective Services (CPS), and/or Family Member Behavioral Health (formerly, the Family Advocacy Program [FAP]) clears many service members and veterans before the U.S. Government prefers charges for court-martial, it is apparent that no military leader should exercise legal authority in sexual offense cases. These agencies have experts with training in psychology and forensic interview techniques that military leaders and prosecutors lack. They simply do not have the training or expertise necessary to fairly adjudicate sexual offenses without conceding to the political aspects of their decisions. They seem to lack a desire for the objectivity to hold fair trials. Furthermore, bringing sexual assault cases before a local civilian investigation would give the judicial branch its rightful authority. The executive and legislative branches should not affect the judge and jury of UCMJ cases any more than they do local decisions in a city, county, or state. There is neither fidelity nor objectivity among military commanders to decide courts-martial for sexual offenses with such unlawful command influence from higher.

For example, in September 2018, the U.S. Court of Appeals for the Armed Forces (CAAF) ruled that the U.S. Navy’s “top lawyer,” Vice Adm. James W. Crawford III, illegally meddled in the case of Keith E. Barry, a SEAL who was accused of rape [7]. In reality, all criminal accusations should be decided in a federal or state court, not by self-interested military leaders who lack the credentials necessary to try them in the public sector. The UCMJ should be limited to military-specific violations such as disrespect and the failure to obey lawful orders, unless a crime happens on an overseas deployment or assignment without local U.S. jurisdiction. The UCMJ already includes cases such as Petite v U.S. [8] intended to clarify issues of double jeopardy where the military prosecutes a service member or veteran subsequent to a state or federal charge.

The U.S. Armed Forces are suffering from this gross injustice, especially in terms of producing and retaining quality leaders because they are apprehensive to keep their commissions or to re-enlist in such a hostile work environment. This problem results in high attrition rates in all ranks, because such toxicity restricts well-organized leadership. It is not a force multiplier, but a force subtraction. Therefore, the ability to protect and defend accused service members and veterans goes down, too, as military legal offices are losing their best talent to private practices intent on reversing the tide.

Former JAG Special Victims Prosecutor Jocelyn Stewart – who now serves as a civilian UCMJ attorney at www.ucmj-defender.com [9] claims that one of the reasons she left the U.S. Army was due to the fact that she could see where this sexual assault issue was headed and stated that current climate; “scares me [10].” Who will have the fortitude and the ethics to correct this injustice? Please do not let this go another ten and twenty years and say, with hindsight and lack of efficacy: “We made some mistakes.” As it is, the entire military justice system suffers from unlawful command influence, especially with a 90% conviction rate for all offenses.

Although Sens. Gillibrand and McCaskill believe they are solving the military’s sexual harassment/assault problem, even female service members are increasingly angry by their efforts to destroy the lives of anyone accused of a sexual offense. For example, U.S. Army JAG Special Victim Prosecutor Maj. Jenny Schlack notoriously rebuked Sen. Gillibrand in 2014 [in a Facebook Post]:

“Her ‘efforts to give women a voice’ in the military with regards to the sexual assault ‘problem’ has single handedly caused more gender divisiveness in the military than I have ever experienced in 11 years of service. Men won’t have professional discussions with me behind closed doors anymore. What!?!? … because of politicians like you…it is harder for me to do my job!”[11]

SOH Commentary: Despite the outrageous comments by Major Jenny Schlack directed at a sitting member of the Senate, and despite her repeated examples of prosecutorial misconduct in other cases, Save Our Heroes has filed complaints regarding her conduct with the U.S. Department of Justice Civil Rights Division, the Kentucky State Bar Association and the U.S. Office of Special Counsel, Hatch Act Unit, and to date, Schlack has never been sanctioned.

In closing, this statement by former U.S. Army JAG attorney Kyle Fischer illustrates this point: “Another paradigm shift is that the Defense is more likely to be the one fighting to admit relevant evidence for the panel to see and hear, and the Government is now more likely to be fighting to keep it out. It is a complete role reversal in the search for the truth” (see his discussion at www.caaflog.com/2015/06/30/military-justice-provisions-in-the-draft-fy16-ndaa/ [12]).


A falsely accused service member.

[1] https://www.saveourheroesproject.org/save-our-heroes-files-complaint-with-tennessee-bar-usdoj-army-jag-judge-former-prosecutor-ltc-jacob-bashore-in-the-wrongful-conviction-of-army-sergeant-mario-jeffers/

[2] Gillibrand, Kirsten. Military Justice Improvement Act: Comprehensive Resource Center for the Military Justice Improvement Act (Washington, DC: U.S. Senate, 2019), https://www.gillibrand.senate.gov/mjia

[3] Jessica L. Wright, FY12 DoD SAPRO Annual Report On Sexual Assault in the Military (Washington, DC: Department of Defense, 2013), Download PDF HERE < The PDF is over 700 pages long, so give it a few minutes to download.

[4] Beyond A Reasonable Doubt: This standard of proof is used exclusively in criminal cases, and a person cannot be convicted of a crime unless a judge or jury is convinced of the defendant’s guilt beyond a reasonable doubt. Precisely, if there is any reasonable uncertainty of guilt, based on the evidence presented, a defendant cannot be convicted. USLegal.com (Flowood, MS: US Legal Forms, Inc., 2016), https://courts.uslegal.com/burden-of-proof/beyond-a-reasonable-doubt/

[5]“Katie Cherkasky, Esq.” BestMilitaryDefense.com (Washington, DC: Golden Law, LLC, 2019), http://www.bestmilitarydefense.com/biographies/katie-cherkasky-biography/

[6] https://www.armed-services.senate.gov/about/subcommittees

[7] Carl Prine, “The Navy’s Top Lawyer Unlawfully Scuttled a SEAL’s Case, Court Rules,” Navy Times (Vienna, VA: Sightline Media Group, 2018), https://www.navytimes.com/news/your-navy/2018/09/06/the-navys-top-lawyer-unlawfully-scuttled-a-seals-case-court-rules/.

[8] https://supreme.justia.com/cases/federal/us/361/529/

[9] https://www.ucmj-defender.com/

[10] Jocelyn Stewart, “UCMJ Court-Martial Military Defense Attorney,” 3:36 (San Bruno, CA: YouTube, LLC, 2014), https://www.youtube.com/watch?v=8cdwVJKvuyo.

[11] “Save Our Heroes’ Files Complaint of Army JAG Special Victim Prosecutor Major Jenny Sue Schlack,” SaveOurHeroes.com (San Antonio, TX: Save Our Heroes, 2016), https://www.saveourheroesproject.org/save-heroes-files-complaint-army-jag-special-victim-prosecutor-major-jenny-sue-schlack/

[12] https://www.caaflog.com/2015/06/30/military-justice-provisions-in-the-draft-fy16-ndaa/