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Ask the Lawyer: When CO's words become 'unlawful command influence'

Jun. 4, 2014 - 10:31AM   |  
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Q. Does a commander’s message stressing the need to combat sexual assault in the military count as unlawful command influence?

A. In recent years, commanders in various service branches have caught a lot of flak, at least in the courts, for emphasizing the need to quash the military’s worsening sexual assault problem.

But there’s a difference between reinforcing a message and forcing someone to conform to a message. Herein lies a major distinction between a commander’s duty and unlawful command influence, which is prohibited under Rule 104 of the Rules of Courts-Martial.

Under Rule 104, convening authorities and commanders, as well as anyone else subject to the Uniform Code of Military Justice, are prohibited from influencing without authority “the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority’s judicial acts.”

Commanders may violate this provision by pressuring court members, deriding penalties mewted out in previous cases as being too lenient, steering certain types of defendants toward general court-martial, or dissuading witnesses from testifying.

When a commander states that certain conduct, such as sexual assault, is not acceptable, he or she may simply be reinforcing a point. Of course, as the saying goes, the devil is in the details.

The case U.S. v. Jay D. Wylie (2012) involved a Navy commanding officer convicted at general court-martial of rape, aggravated sexual assault, abusive sexual contact and conduct unbecoming of an officer and a gentleman.

He filed an appeal, claiming that a senior Pacific Fleet commander exerted unlawful command influence on his case by issuing a message on sexual assault, which the accused claimed prejudiced his clemency process.

In addition to referencing the commanding officer’s case after he had been sentenced, the Pacific Fleet commander’s message stated: “The majority of sexual assaults go unreported, [and] you should not assume this behavior only occurs at other commands or is someone else’s problem.”

But the Navy-Marine Corps Court of Appeals found this message did not constitute unlawful command influence. It noted that senior leadership should not comment on cases still in the appellate process, but also pointed out that the Pacific Fleet commander “was not expressing a desire to see a certain outcome in the appellant’s case.”

Rather, the NMCCA said, he “was merely trying to illustrate his point that sexual assaults occur within all ranks and is not a problem confined to junior sailors.”

This message, the court added, actually constituted “lawful command influence.”

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and the founding partner of Tully Rinckey PLLC. Email questions to The information in this column is not intended as legal advice.

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