Tag Archives: xxiv.2

June 2013 issue of On Watch now online

The latest issue of MLTF’s quarterly newsletter, On Watch, released to members and subscribers a month ago, is now available to the public.

XXIV.2 June 2013

Contents:

  • Minority enlistment: Contracts with children
  • Military culture and sexual assault
  • Report from GI Rights Network Conference 2013
  • Bradley Manning Speaks; Court-martial imminent
  • MLTF position on proposed changes to convening authority
  • Recognitions
  • Regional News

And, of course, News and Notes

If you would like to receive On Watch as soon as it is published, join MLTF, or subscribe without joining for just $20.

MLTF works hand in hand with GIRN at 2013 GI Rights Network Conference

Kathy Gilberd of MLTLF and Lenore Yarger participate in a panel discussion at the 2013 GI Rights Network Conference. Photo by Siri Margerin.

Kathy Gilberd of MLTLF and Lenore Yarger participate in a panel discussion at the 2013 GI Rights Network Conference

The 2013 GI Rights Network conference, held in Santa Cruz, CA, from March 7 through 10, once again was an opportunity to witness the strong bonds between MLTF and the network of (mostly) lay volunteers that staff the GI Rights Hotline with self-directed groups across the US.

It’s always a time not just for sharing skills and knowledge, but checking in with friends and colleagues working in the broader movement for GI Rights.

MLTF Executive Director Kathy Gilberd is as invaluable to GIRN volunteers as she is to those of us in the Task Force, and the warm, grateful reception she gets from conference attendees each year is witness to this reality.

In addition to working on some element of conference planning each year, she leads or co-leads numerous workshops and sits on several panels on multiple issues. Plus, she runs the MLTF literature table, which also offers, for a modest donation, the jewelry and knitted scarves she has created throughout the year. While other MLTF members attend GIRN conferences, provide their expertise on panels, and often lead workshops, to hotline workers, Kathy is the face and voice of MLTF and they always express a great deal of regard and gratitude for her, and thus MLTF’s, contributions.

According to Kathy, this year “attendees included a mix of current counselors and new ones — mostly IVAW members who attended a pre-conference basic training seminar (and most of whom will work with the Coffee Strong/GIRN group or with Bay Area GIRN). We had good attendance from MLTF attorneys and counselors, including attorneys from the Bay Area and our co-chairs from San Jose, and a couple of lawyers from the East Coast.”

Minority enlistment: Barriers to separation and relief

By Emily Gallagher

In this article I discuss the issues raised by the enlistment of a 17-year-old minor in the military. I explain the process by which minors can enlist, and discuss how to advocate for the discharge of such minors based on the proposition that they are legally entitled to disaffirm their enlistment contracts before reaching the age of majority. I cover the discharge called Entry-Level Separation (ELS), which is sometimes used to discharge minors who wish to disaffirm their contracts. I also explain the problems with relying on ELS, including group pressure that prevents minors from seeking an ELS, and the discretionary nature of this discharge. In the final section I describe the barriers that have thus far prevented a judicial challenge to a minor’s enlistment and possible ways they could be avoided. 

Minority Enlistment

Under 10 U.S.C.A. § 505, seventeen-year-olds can enlist in the military if they have the consent of their parents or guardians. The statute specifies,

“The Secretary concerned may accept original enlistments . . . [of] persons who are not less than seventeen years of age. However, no person under eighteen years of age may be originally enlisted without the written consent of his parent or guardian, if he has a parent or guardian entitled to his custody and control.”1

However, minors cannot be processed into any branch of the Armed Forces if one of their parents or guardians objects to the enlistment.2 On the other hand, only one parent or guardian’s signature is required if only one “can be reasonably obtained,” and the affirmative consent of each parent is not required to process an enlistment.3 Instead, it is the responsibility of the objecting parent to affirmatively object to the enlistment.4 This objection must be made in writing within 90 days of the minor’s enlistment.5

Because a recruiter is under no obligation to ensure that a parent who does not sign the enlistment contract does not object beyond the requirement that they provide an explanation as to why the signature cannot be “reasonably obtained,” it is quite possible for an objecting parent who is away on a trip or otherwise unavailable to miss his or her opportunity to object due to expiration of of the 90-day limitation period. Similarly, a forged parental signature will become irrelevant and the enlistment contract valid if the other parent does not discover the enlistment and object within 90 days.

Worth noting is that the 90-day period is not a waiting period during which parents who previously consented can withdraw their consent.6 A minor’s enlistment can only be voided if a parent objects and the minor enlisted without valid parental consent in the first place.7 Therefore, the 90-day period serves only as opportunity for an objecting parent, (whose objection would have prevented the enlistment in the first place), to step forward and voice his or her objection. Thus, 10 U.S.C.A. § 1170 is analogous to a statute of limitations after which an invalid enlistment (due to lack of parental consent) becomes valid; the defect (lack of parental consent due to an objecting parent) is waived. Because an invalid enlistment due to lack of parental consent is “waived” 90 days after enlistment, a 17-year-old who does not wish to be in the military and whose parents do not consent to his or her enlistment can still be stationed on active-duty and deployed.

Military remedy

If a minor enlisted with valid parental consent and cannot therefore be discharged within 90 days of enlistment, it is possible that he or she could be granted an Entry-Level Separation (ELS), a discretionary discharge that can be granted to service members while they are in entry-level status in any branch of the Armed Forces.8 An enlisted person is in entry-level status for the first 180 days of active duty, including training.9 Entry-level status begins on Day One of boot camp.

In addition to being in entry-level status, an enlisted person must be deemed unsatisfactory by his or her command in order to be given an ELS. The standards for an ELS vary slightly between branches of service. In the Air Force, for example, a service member may be separated under an ELS “when their unsatisfactory performance or conduct shows they are not qualified to be productive members of the Air Force.”10 In the Army, an ELS may be warranted “on the grounds of unsatisfactory performance and/or unsatisfactory conduct.”11 For the Coast Guard, an ELS is warranted if a service member “[d]emonstrates poor proficiency, conduct, aptitude or unsuitability for further service.”12 The Marine Corps permits an ELS “if the member is unqualified for further service by reason of entry level performance and/or conduct.”13 The Navy criteria mirrors those of the Marine Corps.

In the above-cited sections of their respective separation manuals, all branches of service provide a non-exhaustive list of conduct that demonstrates, with varying degrees of specificity, unsuitability for service.14 These lists include lack of reasonable effort, lack of self-discipline, unwillingness to meet performance standards, failure to adapt to the Military environment, and minor disciplinary infractions.15

Due to the significant amount of command discretion in granting an ELS, it remains a discretionary discharge granted only after a service member has received a counseling statement as to his or her failure to meet Service standards.16

For a 17-year-old who wants to be separated from the military, an ELS is only an option if the minor’s command is convinced that s/he cannot meet Service standards.17 No regulations permit a service member to be granted an ELS simply by asking for one, even if the member is 17. However, an ELS may be granted in this situation on the grounds that requesting separation shows a lack of willingness to conform to military life, a lack of self-discipline, or one of the other criteria.

However, because boot camp and basic training emphasize conformity and are notoriously difficult, commanders may be disinclined to grant an ELS to a service member requesting one. This could be due to a sense that all service members struggle in boot camp and many have a passing desire to give-up. Additionally, the emphasis on conformity may deter a service member from seeking an ELS or behaving in a way that would warrant a counseling statement and ELS.

As described by an Army lieutenant colonel, “group pressures to conform are substantial, and failure to conform results in group sanction.”18 Group cohesion is critical to military life, and central to cohesion is an individual’s “desire to submit to group norms.”19 This pressure to conform is extreme peer pressure and can prevent service members from breaking with the majority and seeking an ELS, especially when they fear that the group will be punished for their actions.

The discretionary nature of an ELS, the sense that boot camp is hard for everyone, and the emphasis on cohesion and conformity in training and military life in general can lead a 17-year-old to remaining in the Service beyond entry-level status and missing the opportunity to be granted an ELS.

Judicial remedy

Because an ELS is not available to every 17-year-old enlistee wishing to leave the military, some may seek to be released from their enlistment contracts through judicial process.  Challenges to military enlistment are heard in federal court through a habeas corpus petition.20

The main barrier to judicial remedy for such a minor enlistee is the mootness doctrine.  Article III requires that a case or controversy exist throughout all stages of a judicial proceeding so that “the parties . . . continue to have a ‘personal stake in the outcome’ of the lawsuit.”21a willingness to file habeas corpus proceeding can certainly indicate that a person “will not adapt socially or emotionally to military life,” e.g. AR 635-200, 11-3a.(3)(a), such a minor will likely be discharged before the proceeding takes place. By discharging the complaining minor, the military moots the habeas petition, removing the minor’s stake in the outcome of the proceeding.

The legal significance of mooting the habeas petition is that doing so would prevent a judicial decision that a minor’s enlistment contract is voidable. Thus, a minor who is interested in not only being discharged but also ensuring that other enlisted minors who change their mind are able to void their contracts may wish to proceed with his or her habeas petition to create precedent. To do so, the minor would have to argue that either an exception to mootness should apply or that, despite having been discharged, s/he retains a sufficient stake in the outcome of the proceeding to satisfy Article III.

Minors seeking to have their enlistment contract voided on a habeas petition would have to argue that they face negative consequences as a person who was discharged from the military that they would not suffer if their contract were void.22 If the minor were not given an ELS and were instead given a discharge with a character of service designation that is less than honorable, s/he could argue that such a discharge would inhibit future employment prospects.

The well-recognized exception to the mootness doctrine, for injuries that are capable of repetition but evade review, is clearly not applicable to the case of a minor wishing to void an enlistment contract, because to avail oneself of the exception, the injury must be capable of repetition against the party seeking relief, not just capable of repetition in general.23 Obviously, it is extremely unlikely that a minor who enlists in the military, seeks habeas relief to have her contract declared voidable, voids it, would then re-enlist and again wish to void the contract. Therefore, the capable-of-repetition-yet-evading-review exception to the mootness doctrine is of no use in this situation.

Finally, if the habeas petition were not mooted by a subsequent discharge and was allowed to proceed, the minor could argue that he or she should be able to void the enlistment contract based on the infancy doctrine.  The modern Restatement rule is that contracts made with a minor are voidable by the minor either before they reach the age of majority or within a reasonable time thereafter.24 The infancy doctrine is well-accepted and widely applied as “one of the oldest and most venerable of our common law traditions.”25

However, the Supreme Court held 75 years ago that the infancy doctrine is not applicable to contracts relating to military service, relying on a case that is now more than 100 years old.26 In Williams, the Court held that a minor as young as 14 can enlist in the military, and the enlistment contract is not voidable by either the minor or the minor’s parents.27

The Supreme Court has not considered the issue since its decision in Williams, but district courts have. In Lonchyna v. Brown, 491 F. Supp. 1352, (N.D. Ill. 1980), the court considered whether an enlistment contract entered into by a 19-year-old in 1969 was voidable due to minority.28 Finding that the minor subsequently affirmed the contract after reaching the age of 21, the court stated that “[i]t is elementary that while a minor may avoid his contracts, he must do so within a reasonable time after reaching his majority.”29 The court appears to take for granted the notion that a minor may disaffirm his enlistment contract so long as he does so within a reasonable amount of time and does not reaffirm after reaching the age of majority.30

The assumption made by the Lonchyna court is well-founded. To hold that a minor may not disaffirm their enlistment contract while still a minor or within a reasonable time after attaining the age of majority would be contrary to “elementary” contract law.31 It would also require a court to rely on a case holding that 14-year-olds can be bound by their enlistment contracts, which is strikingly outdated given that the statutory age for enlistment has been raised to 17.32

The law’s concern with protecting minors from their own mistakes is well taken in the military context. As all the separation manuals for all branches of services state, “[m]ilitary service is a calling and is not like any civilian occupation.”33 Some minors may be sufficiently mature to make the decision to sign an enlistment contract and be bound by it.  For such minors, the law allows enlistment with parental consent at the age of 17.34 For other minors, the minority doctrine exists and is just as applicable to an enlistment contract as with any other contract, if not more so due to the extremely high stakes of enlistment.

Conclusion

A minor wishing to void his or her enlistment contract will likely be granted an entry-level separation before given the opportunity to challenge the contract in court using the minority doctrine. However, this does not prevent minors from being required to serve when they and their parents object, because the entry-level separation is discretionary and many minors are likely too afraid to seek one anyway.

The main barrier to a definitive determination that the infancy doctrine applies to enlistment contracts is the routine discharge of minors willing to challenge their enlistment in court, which moots their claims.  This practice prevents other enlisted minors from being able to disaffirm with confidence, keeping them in service when they and their parents want them separated.

Emily Gallagher graduated this month from UC Hastings, where she volunteered for the Bay Area Military Law Panel student military counseling program. She has worked for Swords to Plowshares advocating for veterans’ benefits and for the Animal Legal Defense Fund litigating on behalf of animals.

Endnotes

1. 10 U.S.C.A. § 505.
2. OPNAVINST 1100.4C; AFI 36–2003 (I); MCO 1100.75D; COMDTINST 1100.2E.
3. Id.
4. 10 U.S.C.A. § 1170.
5. Id.
6. 10 U.S.C.A. § 1170.
7. Id.
8. DoD Directive 1332.14; NAVPERS 15560D; MCO P1900.16F; COMDTINST M1000.4; AR 635-200; AFI 36-3208.
9. Id.
10. AFI 36-3208, 5.22.
11. AR 635-200, 11-2.
12. COMDTINST M1000.41.B.19.a.(1)(b).
13. MCO P1900.16F, 6205.1.
14. Id.
15. Id.
16. AFI 36-3208, 5.23; AR 635-200, 11-4.1.B.19.e; MCO P1900.16F, 6205.4; NAVPERS 15560D,1.
17. Id.
18. Lieutenant Colonel Robert Reilly, US Army, The Darker Side of the Force: The Negative Influence of Cohesion, Military Review, March-April 2001, at 58.
19. Id. at 59.
20. Irby v. U.S., Dept. of Army, 245 F. Supp. 2d 792, 795 (2003).
21. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990).
22. Carafas v. LaVallee, 391 U.S. 234, 237 (1968).
23. Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
24. Restatement (Second) of Contracts § 14 (1981).
25. Halbman v. Lemke, 99 Wis. 2d 241, 245 (1980).
26. United States v. Williams, 302 U.S. 46, 48–50 (1937); Morrissey v. Perry, 137 U.S. 157 (1890).
27. Id. at 49.
28. Id. at 1353.
29. Id.
30. See id.
31. 491 F. Supp. at 1353.
32. 10 U.S.C.A. § 505.
33. AFI 36-3208, 5.23.
34. 10 U.S.C.A. § 505.

Military sexual assault — It’s the culture

An Op-Ed for MLTF

The military is once again in crisis over sexual assaults. In recent weeks, it has become more apparent than ever that the military’s sexual assault policy is a failure, and that sexual assault in the services has become epidemic.

In early May, the Department of Defense (DoD) released new figures showing a significant increase in reported and unreported assaults — DoD estimates that over 26,000 servicemembers were assaulted in 2012, with only 3,374 of these cases reported to the military. Just as the figures were released, the Air Force was rocked by news that the head of its Sexual Assault Prevention and Response program had been arrested for sexual battery. More recently, the Sexual Assault Response Coordinator for Ft. Hood was charged with sexual assault and pandering. On May 12, the Washington Post published an article recounting a number of incidents of sexual misconduct and sexual assault of potential recruits by military recruiters. All of this came not long after two separate cases of officers with court-martial convening authority who, against the advice of their own attorneys, granted clemency to officers convicted of sexual assault at courts-martial. Meanwhile, at Lackland Air Force Base, the series of courts-martial continue for instructors accused of sexual misconduct with recruits. Most recently, a sergeant on staff at West Point has been accused of secretly videotaping female cadets, sometimes when they were undressed in bathrooms or showers.

Secretary of Defense Hagel and President Obama have expressed outrage at these events and promised to take aggressive action on the issue. Secretary Hagel announced the re-training and re-certification of all Sexual Assault Prevention and Response providers and all recruiters, and promised to cooperate with Congress in developing legislation to address the issue.

But DoD has not made serious efforts to identify and root out the fundamental causes of this long-standing sexual assault epidemic. The response to this and previous scandals has been to call for more training, revise regulations, establish panels to evaluate the problem, and call for yet more training. Defense personnel and other analysts stress that the problem is caused by a small number of rogue soldiers among large numbers of decent and law-abiding servicemembers and, recently, that soldiers bring coarse attitudes about sex and sexual assault into the military from the civilian world.

But those who know the military first hand see, from their own service or from providing legal assistance to servicemembers, that much of the cause of the sexual assault epidemic lies in the military’s own culture – a culture that contains strong elements of sexism and tolerates sexual harassment and discrimination, giving tacit acceptance to sexual violence. Despite significant increases in the number of women in the military, it remains a strongly misogynist institution.

Starting in boot camp, young soldiers are taught combat skills and military discipline with the use of violent and dehumanizing sexual imagery. In language too graphic for this statement, they are told to equate prowess in combat with sexual prowess, and manliness with sexual conquest. The use of sexism and sexual violence as a training mechanism has proven effective in a period where patriotism and ideas of national self-defense cannot be counted on to motivate soldiers to fight. This sexist indoctrination is reinforced in training and discipline, rituals and social life, throughout members’ service, creating a masculinized camaraderie with great tolerance for —even appreciation of — sexual harassment. The DoD’s recently released report on sexual assault mentions this male–dominated culture as an issue in sexual assault, but the idea is buried in the text and not pursued. Instead, the report emphasizes the need for training, command accountability, effective use of the Sexual Assault Prevention and Response program — and more training.

Another aspect of military culture — retaliation against whistleblowers and troublemakers — affects reporting of sexual assaults. According to DoD’s own surveys, nearly half of those assaulted who did not report the offense thought they would be labeled a troublemaker for doing so. And the anecdotal experience of military attorneys and counselors shows this to be the case, as women (and men) who report assaults often find themselves the victims of command reprisals ranging from unwanted psychiatric evaluations to involuntary discharges for alleged misconduct or minor psychological problems. (Slightly more than half of those surveyed were afraid they would not be believed, and a large number feared that they would have no confidentiality if they reported.) When commands ignore complaints or retaliate against complainants, they send an implicit message that sexual harassment and assault will be tolerated.

Until these cultural factors are addressed, DoD’s well-intentioned training and regulation changes can make little difference. An increased emphasis on prosecution of assaulters, changes in the court-martial system, and more training may be helpful, and may empower some survivors of sexual assault to report the crimes. But if the military does not address the basic sexism of its training and culture, these changes will do little good. Commands will continue to sidestep regulations and ignore reports, rapists will continue to think that their behavior is quietly acceptable, and the epidemic of sexual assault will continue.

Military (In)Justice: Real problems, phony answers (Op-Ed)

This article is an official statement of the Military Law Task Force and represents its views. The author is a founder of the Task Force, and currently serves on its steering committee.

In the aftermath of the reports that Air Force Lt. Gen. Craig Franklin, exercising his prerogative as convening authority (CA), overturned the aggravated sexual assault (i.e. rape) conviction of Lt. Col. James Wilkerson, Defense Secretary Chuck Hagel is calling for a change in the Uniform Code of Military Justice to remove that power. Hagel’s initiative (if one could call it that) fails to do anything substantive to address the real potential for abuse in the powers that inhere in the CA, while depriving court martial defendants of a protection that has existed virtually since the founding of the Continental Army.

As the accused’s commanding officer, the CA holds a unique place in American criminal jurisprudence and can choose to have an undue, if not determinative, influence over the outcome of a court martial. Among other powers, the CA selects the officer to conduct the Article 32 preliminary investigation, the members of the court, approves charges and specifications and designates the judge. It is hoped that these powers will be exercised neutrally, but they open the door for command influence, direct or subtle, which far more often inures to the disadvantage of an accused than the rare times that a conviction is set aside. An overhaul of the entire system, including the power of the CA to reduce sentences and reverse findings, is long overdue. Indeed, the old saying that military justice is to justice what military music is to music is attributable, in large part, to the decisive influence the CA is able to exercise. Parenthetically, the other reason the military “justice” system is so skewed, despite the substantial and extensive due process rights that an accused has, is that everything carries potential criminal liability. Nowhere else can someone be prosecuted, for example, for being late to work.