Wednesday, October 12, 2022

The Invisible War and an imperfect bureaucracy

Stars and Stripes highlights the case of a reserve Soldier kicked out of the service, even after a separation board voted to retain him. Practitioners in military justice know that almost without exception, a separation board’s decision to retain is not reversible.

In this case, a female subordinate reported Staff Sergeant (SSG) Ryan Neville touched her inappropriately on two occasions. In response, SSG Neville’s commanding general issued a letter of reprimand, then ordered it placed in the NCO’s permanent personnel file. The command also elected to send SSG Neville to a separation board instead of a court-martial, as often happens in the reserves in cases with relatively less serious sexual misconduct charges. 

The government’s burden of proof at a separation board is a preponderance of an evidence, making such a case easier to prove than it would be at trial. Yet the article reports that the board unanimously voted for retention. Even though his command could no longer separate SSG Neville, the reprimand led Human Resource Command to involuntarily separate SSG Neville through the Qualitative Management Program Selection Board process. 

The article cites to the death of Army Specialist Vanessa Guillen in April 2020 at Fort Hood, Texas, as background for SSG Neville’s case. My formative years as a JAG prosecutor reference instead The Invisible War, an Oscar winning documentary that was screened for Soldiers and civilians at my base, and which led to angry questions and answers from audience members afterwards. 

In 2012, it was hard then to convince many audience members of the efforts the Army was making to combat sexual assault and harassment. And the 2020 Fort Hood Report shows that those efforts are incomplete, with sometimes tragic results. But in a large bureaucracy filled with imperfect people following rules written by fallible leaders, corrections for these failures can sometimes lead to results that offend basic concepts of fairness and due process.

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