National Security & Defense

Why Is the U.S. Army Abandoning Due Process?

U.S. Army recruits march during basic training at Fort Jackson, S.C., in 2006. (Staff Sergeant Shawn Weismiller/US Army)
An Army administrative procedure is being abused to further the ambitions of some at the expense of the leaders we need most.

At a time when the United States is facing worldwide threats and the first near-peer adversary in a generation, the Army is purging commanders without due process. For the Army to work, there must be trust among different levels of commands. But our current General Officers (GOs) no longer support commanders under their authority and are happy to throw away any semblance of due process to shield themselves from scrutiny. GOs hide behind investigations that remove fundamental elements of the rights of the accused and rely on “administrative actions” that are actually punitive in nature. Unsupported complaints are enough to launch full-scale investigations, lacking even basic due process.

When unscrupulous GOs disguise their witch hunts behind the veil of “administrative actions,” the Army can turn a blind eye to the procedural due-process rights of the accused. Currently, any member of a unit can levy a complaint — more accurately, a laundry list of complaints — without providing any evidence besides the allegation alone. If the allegations are part of the sacred trinity of racism, sexism, or bullying, a higher-level commander will not even question the veracity of the claims and instead will immediately appoint an investigating officer under the authority of Army Regulation 15-6 (AR 15-6).

While AR 15-6 investigations have been around a long time, their current use to circumvent due-process rights and avoid full Uniform Code of Military Justice (UCMJ) proceedings, where robust due process is afforded, is a recent trend. Trust between commanders allowed for many things to be handled commander-to-commander to tackle problems at multiple levels. But AR 15-6 does not ever require a commander to open an investigation. However, there is risk aversion among GO-level commanders, so by appointing an investigating officer (IO), they can absolve themselves of the responsibility of dealing with the complainant directly.

When I first was commissioned in the Army over 20 years ago, AR 15-6 investigations were used nearly exclusively for property loss: If a soldier lost something while in the field, you would appoint an IO to investigate if the soldier should be held financially responsible for the loss. Now, we investigate everything and have weaponized the process to take punitive actions under the guise of an administrative investigation.

AR 15-6 specifically waives any requirement for due-process rights of the accused. It explicitly states that there is no requirement for rights of a respondent, notification of proceeding, representation of counsel, or right to call witnesses/cross-examine witnesses. Ironically, AR 15-6 requires the IO who launched the investigation to have an appointed legal adviser, while specifically excluding that right to the subject of the investigation. The ranks of major or higher have a right to respond, but only after the findings of the investigation have been presented to the command that initiated it. But then the subject of the investigation is only given redacted evidence and witness statements and ten days to respond. Access to witnesses or names, the right to face one’s accuser, and even knowledge of who the accuser is are not allowed in any AR 15-6 investigation.

There is, furthermore, no disclosure requirement for evidence. In fact, in most AR 15-6 cases, the IO and initiating command specifically conceal evidence from the subject of the investigation. Having personally been an IO on many occasions, I was counseled to schedule my interviews and evidence collection in a manner that delays as long as possible alerting the person being investigated. This includes ensuring the collection of all evidence and witness statements before interviewing the subject of the investigation. I have even been specifically advised to only present select evidence and witness statements to “confront” subjects with, to encourage them to provide a statement or to trip them up.

Typical evidentiary standards do not apply to an AR 15-6 investigation, because it is considered administrative in nature. The only limiting factor when considering evidence is left to the IO to determine “that a reasonable person would consider [the evidence] relevant and material.” But no evidence, including access to medical records, may be kept from the IO. Hearsay is permitted in witness testimony; an IO or the initiating command can order military personnel or federal civilians to testify. The witness list is completely determined by the IO and initiating command of the AR 15-6 investigation.

After a completely one-sided investigation, where the subject of the investigation receives no procedural due process, the standard for proof for the IO is only a preponderance-of-the-evidence standard — a greater than 50 percent chance that the allegations are true. The IO then compiles a report and presents the findings to the appointing command, complete with recommendations for disciplinary actions.

There are many “administrative” options available to the initiating commander that punish the officer or soldier that do not require any additional due-process steps. These include the ability to issue a General Officer Memorandum of Reprimand, relief from leadership position, negative performance review, and/or corrective training. Any of these actions would end an officer or senior non-commissioned officer’s (NCO) career. But these steps can be taken against the subject with only the vaguest of detail provided to the officer or NCO. Even if later a more thorough investigation determines that the initial findings were unsubstantiated, the administrative actions would remain in place.

In many cases, commanders or leaders are removed or suspended from their leadership positions while the investigation is underway. These suspensions and reliefs have a measurable impact on our combat readiness. For example, Major General Jeffrey Broadwater, the 1st Cavalry Division commander, has been suspended since December of last year, pending the results of an investigation into a command-climate survey. This has left Brigadier General Brett Sylvia as the acting commander of the division. While Sylvia is an experienced military leader, he lacks the same level of experience that Broadwater brings. Broadwater has an extensive background in armored warfare, while Sylvia is primarily from the lightfighter world. Armored combat requires a unique skill set that can only be acquired through years of hard-earned experience in training and fighting within these formations. This leaves the largest armored formation in the world under the command of a brigadier general with little or no experience in armored warfare.

These seemingly endless investigations, and in many cases reliefs with no due process and low standards of proof, powerfully affect the officers/NCOs, their families, and the climate within a unit. I personally know many of the commanders who have been relieved or suspended as part of the Fort Hood investigation and know the tactics I described above were used to tar and remove quality officers. This is all done to provide a fig leaf for more senior leaders while destroying the careers of quality officers and NCOs.

The effect of these reliefs on investigated officers and their families is devastating. But the loss of talent within the Army may be even worse. Take the relief or suspension of 21 officers and senior NCOs as part of the Fort Hood report. There are only a handful of armored formations in the world, and the 1st Cavalry Division is considered the world’s preeminent armored division. The 1st Cavalry Division’s officers and NCOs were not placed in it by chance. Their remarkable careers led to their being selected for these command and senior-leadership positions. It is impossible to believe, especially since I know many of them personally, that all these suspensions and reliefs were warranted.

It is much harder to stand up to the mob and say Major General Jeffrey Broadwater is an honorable man, who has served honorably, and we will work directly with him to continue to improve our responses to the challenges at Fort Hood. That would require the Army senior leadership to have a backbone and to stand up for their leaders that they have known for decades, as they have served alongside them. That does not mean ignoring issues that should be addressed. But it does mean that we should leave proven leaders in place, so that we have proven officers capable of addressing these problems. Perhaps some of the reliefs were warranted, but it is hard to believe that the brutal murder by fellow soldiers of Specialist Vanessa Guillen, who was not even a member of 1st Cavalry Division, was due to the leadership failures of Major General Broadwater.

Our GO leaders have become cowards, more concerned about furthering their own careers than about standing up for other officers and NCOs they have served alongside for years. When certain officers are being investigated on false pretenses and punished for false offenses, they could personally attest that the allegations are often false. Instead, their inaction means we are robbing our Army of the leaders we need when we need them the most.

Robert M. Berg is an active-duty combat-arms officer, a commissioned officer of 20-plus years, and was an enlisted infantryman for three years before that. He has served all over the world, from lowest-level tactical units all the way up to strategic planning at the Pentagon. Robert M. Berg is his pen name.

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