Military justice by other means

Butch Bracknell

Retired Marine Corps officer Robert G. "Butch" Bracknell has an excellent Lawfare post here about whether Defense Secretary Ashton B. Carter should reopen retired General David H. Petraeus's "grade determination" and demote him to Lieutenant General. The Army recommended against doing so. Whether or not Gen. Petraeus's conduct was satisfactory in the four-star grade he held when he retired, there is, it would seem, a serious question as to whether it is simply too late to revisit the matter.

The governing regulation, AR 15-80, permits the government to revisit a grade determination “[i]f substantial new evidence discovered contemporaneously with or within a short time following separation could result in a lower grade determination.” Here is what the regulation actually says (¶ 4-1):

c. Officer grade determinations are normally accomplished at time of retirement or disability separation, and the officer’s grade is fixed at that time. A grade determination can be reopened by the Army after separation— 

(1) If the separation and/or accompanying grade determination was procured by fraud. 

(2) If substantial new evidence discovered contemporaneously with or within a short time following separation could result in a lower grade determination. For example, if an officer’s misconduct while still on active duty is documented by memorandum of reprimand, nonjudicial punishment, or conviction after retirement, and such misconduct was not discoverable through due diligence, a new grade determination may be completed. 

(3) If a mistake of law or mathematical miscalculation led to an improper separation or grade determination.

Is it plausible to treat the years that have elapsed since Gen. Petraeus retired (in 2011) as "a short time"? (Comments are welcome on this issue, but, as always, please use your real name when commenting.)

Nancy A. Youssef and Shane Harris have also written about the controversy in The Daily Beast here.