Cases decided by the U.S. Court of Appeals for the Armed Forces on full opinion during the present Term of Court

as of August 17, 2022. The Term ends on September 30.

"Milicogate"

On March 2, 2022, General Ricardo Martinez announced his resignation as Commander in Chief of the Chilean Army because he was accused of crimes of corruption within the Army.  The announcement came a week before his successor, Javier Iturriaga, was to become the new Commander in Chief to serve for four years beginning March 9, 2022.  Martinez is the fourth Commander in Chief, of six, following Augusto Pinochet, to be accused of corruption, following Oscar Izurieta (2006-2010), Juan Miguel Fuente Alba (2010-2014), and Humberto Oviedo (2014-2018), who all denied the accusations and declared their innocence -- as did General Martinez.  

Martinez was charged with defrauding the military of $44 million and for allegedly using institutional travel funds for his own and his wife's benefit. Judge Romy Rutherford has been investigating the fraud case in the Army since 2011 and she questioned, in particular, eight trips carried out by Martinez while on active duty, during the years 2011-2017; on three of the trips accompanied by his wife.  He was placed in preventive detention for three weeks.  On April 5, 2022, the Military Tribunal dismissed the prosecution against him.

The decision of the Military Tribunal to dismiss Judge Rutherford's prosecution was a divided one of three judges against two.  The majority accepted the defense's argument that the amount of money in the fraud had not been clearly established, that the alleged trips were subject to a statute of limitations and that Martinez had returned some of the money.  Now the Council of the Defense of the State (CDE -- a group of 12 lawyers appointed by the President) will have to decide whether to appeal to the Chilean Supreme Court to overturn the Military Tribunal's decision.

Captain Kevin J. Barry used to say

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Mere dicta, or a warning?

The following discussion appears in the judgment of the Defence Force Discipline Appeal Tribunal of Australia in Kearns v Chief of Army [2022] ADFDAT 3 (Aug. 12, 2022):

119   By a notice dated 9 August 2021, a little over two months after his conviction and punishment by DFM [Defence Force Magistrate], administrative action was taken against the appellant leading ultimately to his administrative discharge on the basis that the retention of his service was not in the interests of the Defence Force. By the time these proceedings were heard by the Tribunal, he was no longer a member of the ADF.

120    On 7 May 2021 the DFM made a considered decision under DFDA, Pt IV that the appellant had continuing value to the ADF and should be retained in service but with a loss of seniority within his existing rank of LTCOL. The transcript of the punishment hearing shows the DFM reached this decision based not only on the circumstances of the convictions and a victim’s impact statement but on extensive examination of the appellant’s service record, officer performance appraisals, character, and a psychological analysis of the appellant’s circumstances.

121    The subsequent administrative decision to terminate his service produced quite a different outcome for the appellant. This Tribunal is not reviewing that decision and its factual basis and the reasons for it are not before this Tribunal. But the appellant has contended in documents before this Tribunal that the termination decision was based upon the same or substantially the same facts as those that led to his two convictions. This Tribunal is not charged with deciding whether that contention is correct or not.

122    But the contention raises a wider question about administrative decisions after DFDA action against a member and the authority of the decisions of superior service tribunals under the DFDA. The apparatus of the Appeals Act provides for public external review of the conviction, but not the punishment, of defence members by superior service tribunals under the DFDA. The public functions of review by this Tribunal under the Appeals Act are one of several statutory safeguards that maintain confidence in the independent administration of justice under the DFDA leading to both conviction and punishment. Another statutory safeguard is the requirement under DFDA, s 140 for superior service tribunals to hold trials in public.

123    This Tribunal’s functions in scrutinising the proper administration of justice leading to conviction by superior service tribunals, give it an interest in matters which may undermine the authority and independence of those tribunals, even matters occurring after conviction. Maintaining public confidence in the convictions of superior service tribunals is not limited to looking at events before conviction.

124    An administrative decision made close in time to a punishment imposed by a service tribunal under the DFDA, but which produces on substantially overlapping facts an outcome which may objectively be described as more severe, may need to be reconciled with the operation of DFDA, s 162.

125    Several provisions of the DFDA prohibit commanders from increasing punishments imposed under the DFDA. Under DFDA, s 68 a commanding officer of a convicted person “may moderate the consequences of” a punishment “imposed” by service tribunal, but has no power to increase the punishment. And upon review of action under DFDA, Pt IV under DFDA, s 162 a conviction may only be quashed under s 162(1) if it is “excessive” or “wrong in law” and once quashed any substitute punishment imposed under s 162(5), “shall not…be more severe” than the punishment imposed by the service tribunal. No power exists in the reviewing authority to quash a conviction on the grounds of insufficiency of punishment.

126    An administrative decision maker considering termination of a defence member after DFDA action on facts substantially overlapping with the DFDA action does not act as a reviewing authority under the DFDA. But such a decision-maker may have to examine real questions of continuing fidelity to the commands of DFDA, s 68 and s 162 and what punishment is being imposed in practice and whether the administrative decision is consistent with the maintenance of good conscience by command.

127    DFDA, s 68 and s 162 reflect well-established principles that military command is bound to observe good conscience in punishing a defence member. The High Court in Lane v Morrison (2009) 239 CLR 230, at [85] (Lane), identified that the central point of the court-martial within military command structures such as the ADF is to inform the conscience of the commanding officer. In Lane, at [85], the High Court cited the following reasoning of Platt J in the Supreme Court of New York in Mills v Martin (1821) 19 Johns 7, at 30, as accurately capturing this aspect of the role of the court-martial within the command system:

The proceedings of the court-martial were not definitive, but merely in the nature of an inquest, to inform the conscience of the commanding officer. He, alone, could not condemn or punish, without the judgment of the court-martial; and, it is equally clear, that the court could not punish without his order of confirmation.

128    The court-martial informs the conscience of command and command acts on good conscience by confirming or moderating, but not increasing, the punishment fixed by the court-martial. Recognising that a punishment imposed by a service tribunal in relation to a defence member sets the upper limit of post-conviction action binding on the conscience of command for that member provides safeguards for the ADF and for the member.

129    For command, it promotes military cohesion and defence members’ acceptance of discipline decisions by separating command from any perception of personal bias or ill-will in the exercise of discipline. For the member punished, command’s fidelity to good conscience in confirming or moderating punishments confers security and stability and promotes loyalty to the service in that member and in all members who see command observing the precepts of good conscience in punishments.

130    Moreover, as this Tribunal emphasised in Howieson v Chief of Army [2021] ADFAT 1, at [62] (Howieson), an administrative decision to terminate a member’s service where a court-martial has imposed a sentence which gives the member an opportunity for rehabilitation “could be regarded as undermining the court-martial process”. We add the reasoning here to that expressed in Howieson on this subject.

131    If the obligations of good conscience upon command in imposing DFDA punishments recognised in Lane and embedded in DFDA, s 68 and s 162 are ignored post-conviction, leading to the administrative termination of the service of defence members, stigma, loss of morale and confidence in the administration of justice in the ADF may be most acute for those directly affected by the termination but similar effects are likely to be felt more widely. But more broadly, as Howieson emphasises, the authority of DFDA in specialist superior service tribunals seeking to do justice by balancing rehabilitation against other sentencing factors may also be undermined.

132    This question may need to be addressed in the future when what it means to “impose” a punishment under the DFDA falls to be decided; and whether that means more than just to pronounce the punishment but to carry it out.

For your reading list

Noah Riseman, The Royal Australian Navy and Courts-Martial for Homosexuality, 42 Int'l J. Mil. Hist. & Historiography 46 (2021) is available online here.