Friday, December 19, 2008

USMC Getting Soft at 223 - Deserter Gets Summary Court-Martial

The last few days I have been watching growing press coverage of a USMC deserter from Camp Pendleton. The amazing part has been the relative lenience that the USMC discipline system has shown. Today, for his UA, a summary court-martial awarded Lance Coporal Lance Hering, as summarized by the Marine Corps Times, "forfeiture of $1,166 and 60-days restriction without loss of rank. Because one day of confinement equals two days of restriction, Hering’s 33 days in jail will count as the full time served." See an excellent report from the Rocky Mountain News, here, with quotes from the proceedings and a blow-by-blow of testimony.

The facts behind the UA are rather bizarre. In short, as reported by the San Francisco Chronicle,
Hering disappeared in August 2006, soon after returning from a combat tour in Iraq. He was due back at Camp Pendleton that September to begin training for a possible redeployment to Iraq in late 2007. But, on Aug. 30, 2006, a friend of Hering's told police the Marine suffered a rock-climbing accident west of Boulder and wandered away. The friend later admitted the disappearance was a hoax — but not before hundreds of people had scoured the landscape looking for Hering.
According to the Marine Corps Times, here (compare his photo at capture with this one from after his summary court-martial today), Former Lance Corporal Lance Hering's desertion nearly two years ago may have been linked to mental problems, also possibly a reason for the relatively lenient treatment. In the two years since his disappearance police have searched his parents home, report here, and rumors have circulated concerning Hering's whereabouts after intermittent contact with Hering.

Hering will likely be separated with an Other-than-Honorable discharge, though it is possible the leniency will continue. He could be separated for mental health issues, in which case he'd receive a General (Under Honoarble Conditions) discharge. However, Hering's troubles are far from over as he faces a probation violation hearing for prior burglary charges and charges related to that little hoax he helped engineer, see report here.


Anonymous said...

No Man,
I'm an active duty Marine judge advocate and take offense to your characterization that the Corps is getting soft in a such as this. I see the Corps' military justice/admin sep process as one that has matured substantially since the war's begun. Commanders, SJAs, trial counsel, and defense counsel now realize these sorts of cases should be handled quickly, compassionately, and justly. A few years ago, the kid would have gone a special court, spent 120 or so days in the brig, and be headed out the door with a BCD (of course it would have taken three years for the appellate court to review that case back then). Now, the Corps is applying compassion and common sense. I applaud the way they handled this one, holding the kid accountable and avoiding alienating his entire home town (and the parents of other kids who are thinking about enlisting) by appearing to be out to crush the kid. The standard way we handle these sorts of cases whether they are at Pendleton, Quantico, or Lejuene is to place them in pre-trial, prefer a set of charges with an eye toward a referral to a special court (thus allowing them to stay in PTC) and then negotiate to a summary or even NJP and an ad sep board normally with a board waiver for an OTH, although if the Docs really say he's got a pretty bad case of combat stress, PTSD, or more likely mild TBI, we may in the rare case let them go with a general. Even with an OTH, the VA will treat their combat related mental health trauma. This process avoids bogging the appellate courts down with the cases, moves the cases quickly, and treats these broken Marines with compassion -- that's not getting "soft" that taking care of your Marines.

Dew_Process said...

Even with an OTH, the VA will treat their combat related mental health trauma.

Anon 1029 -- that's not quite accurate and military Defense Counsel need to be careful in advising clients under these circumstances. The potential "Denedo's" in this area are many!

First of all, the individual must have documentation that his/her mental health issue(s) were acquired in "the line of duty." Getting that documentation is easier said than done - I just spent literally a year on a ex-Marine with an UOTHC discharge fighting to establish that. Mere service in Afghanistan / Iraq is not enough, especially if (as the Army is prone to do) they slip in something that says it existed PRIOR to service.

Then there's the Statutory Bar: if you're in a desertion status for 180 days or more with a UOTHC, 38 USC 5303(a) Bars you from benefits. You can "challenge" that denial, but you first need to establish the "line of duty" basis.

Even if the client isn't gone for 180+ days, you still have to convince the VA of eligibility and every office has differing backlogs, and "policies." But 4 to 6 months is about average for FAVORABLE considerations, and god help you if you're denied and have to appeal.

While the VA has gotten more liberal in its waiver policies, the UOTHC is a hurdle that many young ex-service members, especially with mental health issues, cannot navigate, and unless a family member can "fund" a lawyer, it's a VERY tough battle.

And finally, why anyone would allow their client to waive for an UOTHC discharge IF there are bona fide mental health issues, is beyond me. Treat the problem "in house" and then, either restore them to duty, or give them the General Discharge so there are no VA "battles" - that's taking care of your troops.

Anonymous said...

Screwy case - how did this kid enlist with a felony conviction and being on state probation at the time of his enlistment???

On-going probation precludes a "waiver" of the conviction. Kid's lucky he didn't end up with Fraudulent Enlistment charges as well!

Mike "No Man" Navarre said...

Anon 1029:

While your comment takes issue with the post, it proves the point. As you said, "A few years ago, the kid would have gone a special court, spent 120 or so days in the brig, and be headed out the door with a BCD (of course it would have taken three years for the appellate court to review that case back then).".

I never said I thought the kid should go to c-m. And as far as what is the best use of resources, I agree with your assessment. But, our assessment of what's right doesn't change decades of Big Chicken Dinners awarded for less than 180 days UA and Summary courts-martial for only short term (sometimes counted in hours) UAs.

Cloudesley Shovell said...

Anon at 1029am was on the right track. From a gov't resources standpoint (remember Col Miller's "Lost Battalion" article?) this was the right way to go.

What is so important, in this particular case, about getting the BCD? What military good order and discipline interest is not served by a summary and subsequent admin sep that is served by a BCD? I can't think of one.

One tremendous advantage of the summary/admin sep is that the case is not subject to appellate review, where it could conceivably bounce around for the next three to five years while NMCCA remands it for more 706 hearings, and generally re-litigates the entire case on appeal, while appellant remains on active duty, counting against end strength, and availing himself of all benefits.

Whatever incremental benefit exists as a result of the BCD is more than offset by the potential cost on appeal.

Also, as one who has defended a few UA/deserter cases before members, with the mitigation evidence in this case, I would have been happy to tee it up.

John O'Connor said...

When I was a TC, I prosecuted a lot of cases for the School of Infantry. One of the interests served by the SpCM process was the prospect of a couple of months of confinement. The SOI would have a lot of kids who might be having second thoughts about enlisting, and the prospect of going to the brig could encourage some of them to stick it out.

It's no lay down that you can get PTC for a simple UA.

The alternative to a special is a SCM where the max punishment is 30 days confinement, and a SCM is a drain on officer time at the command (you can debate whether that's a factor that ought to be considered, but it clearly is). You also can have less predictability at SCMs because thwere is no "going rate" like there often is at a SpCM because the "judge" is not a repeat player.

To their credit, the SOI leadership I dealt with would often take a UA back to NJP IF the accused had a sincere desire to go back to training (as opposed to just not wanting the big chicken dinner).

What's all this mean? It means that Col Miller is an idiot with his "Lost Batallion" (note -- I don't really think this, but put this in for Col Miller's amusement). What it really means is that it's too simplistic to say that SCMs ought to be the norm for long-term UAs because one size does not fit all for commands, and does not fit all for particular accuseds.

livingthedream said...

Interesting comments by all. I don't think of myself as a government hack, but I think the issue might be that the "going rate" has gone down or maybe there is a greater tolerance for misconduct. Along with that I think PTSD/TBI/combat deployments are probably significant E&M factors that a MJ or members look at now.

I'm honestly more surprised the command accepted SCM vice a Separation in Lieu of Trial to get the OTH since the accused didn't really receive any new punishment. Not that I have much experience, but I think there is more predictability with the NJP/SCM process than there is with SpCM. Even with the SNM of this post, I wouldn't be confident as a TC that I could get a BCD for the command. As DC, throw the parents in to testify, the deployment, maybe a doctor to talk about PTSD, etc., and I could see a NJP/SCM type sentence come out of the SpCM.

For instance, I have seen DC dive out their clients (single spec 112a) at a SpCM without PTA and receive less punishment than what the accused would have received at SCM or even NJP. I have seen an accused get nothing more than a letter of reprimand at a SPCM because the misconduct (121) was mitigated by a combat deployment and good military character. I have also seen contested SpCMs (112a) with guilty findings, but sentences with less punishment than NJP/SCM. Granted, they are minor offenses and not worth BCD, but the punishments are well under the max provided by NJP/SCM. I think commanders see the predictability of NJP/SCM process as being more advantageous than taking it to court. Unless the misconduct involves child pornography or sexual miconduct with a minor, I think a CM is very unpredictable.

The Old Corps will say that there is a difference now in terms of discipline compared to the past. I've even heard junior SSgts say the same comparing now and the late 90s, early 2000 period when these SSgts were PFCs/LCpls. Finally, I've also heard from commanders who are likewise upset that a combat deployment almost gives you a right (at a SpCM) to smoke dope or go on your own program. Commands are doing the mandatory processing, but the ADSEP process takes a significant amount of time to process unless there is a board waiver, which is why, I think, the lower forum, board waiver PTA isn't a bad option. Commander can get some punishment and then get rid of the problem child.

I completely agree with Mr O'Connor that one size does not fit all and Mr Shovell that the "Lost Battalion" issue does play out as a factor to commanders. Anyways, thats my personal dos centavos and all the disclaimers that this is my personal opinion apply.