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UCMJ vague on hard labor guidelines

For 35 days this summer, Pvt. John Suarez worked from 9 a.m. until midnight in a Kevlar helmet, full body armor and a packed ruck, digging foxholes at Fort Lewis, Wash.

His hands turned to sandpaper. His lower back felt like someone had kicked him. Every time he swung his pickax, soreness flooded his wrists.

“It was pretty exhausting,” said Suarez, 20, who was sentenced to 45 days’ hard labor in a summary court-martial after a urinalysis test came up positive for cocaine. “It was like dirt and rock. The soil here is pretty bad.”

DISCUSS: Hard labor

His first sergeant told him that his battalion commander, Lt. Col. Richard Demaree, of the 2nd Battalion, 1st Infantry Regiment, 5th Stryker Brigade Combat Team, had ordered that Suarez could not do goal-oriented work; the foxholes were for naught.

On weekdays, he did morning physical training with his unit, then reported for hole-digging. On weekends, he dug from 6 a.m. to midnight. Every day, he laid out a square from pick handle to pick handle, and then dug until he could stand in the hole up to his nametag.

Fortunately, he said, he’s only 5-foot-6.

At night, he had five or six hours to shower, do laundry and sleep.

“I heard it was the first time they’d had hard labor at Fort Lewis since World War II,” he said.

The Uniform Code of Military Justice says unit commanders determine the form of hard labor without confinement, which can be given only to enlisted troops, not officers. But the UCMJ and service regulations offer little guidance on such issues as hours or safety guidelines.

That has led to what lawyers call inequitable inconsistencies. For example, Suarez spent weeks digging holes and then was discharged from the Army for the drug offense. But a Marine convicted of pummeling prisoners in a jail in Iraq had his hard labor disapproved by a two-star general — and, after leaving the Corps, enlisted in the Army.

In one case, a sailor who claimed conscientious objector status and refused to deploy to Iraq spent weeks pulling weeds in a vacant lot until his hands bled. But a soldier convicted of prisoner abuse in Iraq was allowed to work in a post gym.

The regulations on hard labor — a phrase that seems rooted in a long-gone era — are as vague as they are disparate. In the Navy, sailors cannot have mustaches while doing hard labor, although they do not have to perform hard labor on their Sabbath. Marines may be punished with no more than three days of bread and water. Soldiers must have at least three Meals, Ready to Eat per day. Air Force regulations add nothing — just refer lawyers back to the vague UCMJ guidelines.

The lack of guidance has led some troops sentenced to hard labor to be given activities more aptly described as “extra duty,” while others perform grueling, and possibly dangerous, work.

In a 2004 article on military hard labor published in the journal Army Lawyer, Maj. Joseph Berger III wrote that others pick up cigarette butts and paint rocks to beautify unit areas.

Berger said there is definitely a place for hard labor in the military justice system, but added that the key is consistency, which he called “the critical component of any successful contemporary plan for executing sentences to hard labor without confinement.”

Several lawyers said such consistency is sorely lacking today, noting that the many service members who test hot for drugs are either processed out of the military or serve a few months’ confinement, which makes it hard to consider Suarez’s punishment equitable.

Some lawyers even termed it “cruel and unusual.”

‘Lucky they didn’t kill the kid’

Finally, on Day 40 of Suarez’s sentence, a voice came from above: No more.

“When informed of the sentence, the commanding general, I Corps and Fort Lewis, ordered that Private Suarez’s hard labor cease in order to review the use of hard labor and what systems must be in place to ensure the consistent safety and welfare of the soldier during the execution of the sentence to hard labor,” Fort Lewis spokesman Joseph Piek said in an e-mail.

Piek confirmed the details of Suarez’s summary court-martial and that he worked 15- to 18-hour days digging holes until his punishment was modified on the 35th day, when he was allowed to ditch the helmet, armor and ruck and work in a soft cap and T-shirt.

Piek also said that as a result of Suarez’s case, Fort Lewis is developing guidelines for hard labor without confinement.

“While the punishment carried out ... was lawful, the chain of command wants to ensure that hard labor without confinement punishments are implemented in a manner designed to rehabilitate the soldier, while safeguarding his safety and welfare,” he said.

Piek said “it would not be appropriate” for Demaree to discuss Suarez’s punishment with Military Times. According to Army regulations, hard labor should be performed where others can see the soldier. It may not include duties that “constitute a safety or health hazard,” but it “may include duty to induce fatigue.”

And the hours to be worked are left completely to the commander.

Piek said the new Fort Lewis policy in development “would ensure that hard labor without confinement punishments are uniform ... and that appropriate oversight for such punishments is accomplished.”

Lawyers who represent troops from all services say that needs to happen on a much broader scale.

“They’re lucky they didn’t kill the kid with heat-related injuries,” said Vaughan Taylor, who said he has seen hard labor handed out only once in the 30 years he has represented service members as a defense lawyer.

“Nine to midnight — that’s inhumane,” Taylor said. “That could qualify as cruel and unusual.”

He said hard labor is difficult to enforce because someone must supervise the convicted person at all times. That takes time away from real work — which is why most commanders avoid it.

But Taylor said he has seen some instances in which hard labor was not senseless. In the 1960s, soldiers sentenced to hard labor cleared swampland at Fort Lee, Va. And when he was stationed in Germany, Taylor said hard-labor soldiers painted the interiors of barracks.

“It was pretty arduous,” he said, “but at least it was productive.”

Taylor said service regulations could provide some guidelines as to how strenuous hard labor can be, the hours people can work and what is considered safe — adding that such guidelines already exist for people going through arduous training or transitioning into the hot climate of Iraq.

“The type and amount of hard labor is a command function of the imposing commander and not governed by” standard operating procedure, Army spokesman Lt. Col. George Wright said.

The Army “relies on well-trained and well-educated commanders ... supported by Army lawyers, to determine the character of hard labor,” he said.

Wright did not respond to a question about how often soldiers are sentenced to hard labor, but he noted they always have the right to appeal the punishment.

Gene Fidell, president of the National Institute of Military Justice, said that putting so much discretion in the hands of commanders creates a “danger that there will be wildly divergent punishments.”

He called hard labor without confinement “archaic” and said the military should review the entire concept.

Civilian society has mostly done away with hard labor, he said, in favor of organizing work crews to pick up garbage or paint over graffiti — tasks that contribute to the betterment of society.

“The fact is, our values have changed,” he said. “It degrades the whole system. It’s like putting someone in the stocks. This is the kind of thing that gives military justice a bad name.”

Hard labor without confinement can be given as a punishment only as part of a court-martial sentence. Extra duty is a nonjudicial punishment that can be administered without a trial.

After the sentence is handed down at a court-martial, the actual form of labor is left to the member’s commander. Defense attorneys usually don’t check up on the punishment unless their clients make a complaint.

All the services say they do not keep centralized logs of the actual duty ordered, and only one — the Air Force — responded to a Military Times inquiry about how often the sentence is handed out: Since January 2006, 276 airmen have been sentenced to hard labor without confinement.

Commanders’ discretion

“The nature of the assigned duties is left intentionally up to the discretion of the accused’s commander, both in regard to hard labor without confinement in a court-martial context, and in regard to extra duties in an Article 15 context,” Air Force spokeswoman Megan Orton said.

Sometimes, the sentence is a way for commanders to handle a case that possibly should not have gone to trial, but still flies in the face of regulations. In 1996, for example, Tech. Sgt. Warren Sinclair was given 14 days of hard labor without confinement at Scott Air Force Base, Ill., for refusing to provide DNA samples for identification if he died on active duty.

Dick McNeil, who has represented service members for 30 years as a Marine Corps JAG officer and as a civilian, said he knows “very few judges, if any,” who impose hard labor, “probably because confinement is usually appropriate.”

McNeil said any courts-martial in which hard labor is part of the sentence “probably could have been handled at a lower level.”

“Court-martial usually means they want confinement,” he said.

Like other legal experts, McNeil — who said he never gave out a sentence of hard labor in his two years as a Marine Corps judge — sees Suarez’s case as problematic.

“I find that draconian,” he said. “Personally, that offends me.”

The case stands out even more starkly when contrasted with other instances of hard labor that were not nearly so “hard.”

Army Sgt. Santos Cardona, a dog handler, was convicted in 2006 of dereliction of duty and assault for allowing his dog to bark inches from a detainee at Abu Ghraib prison in Iraq. He got 90 days’ hard labor, which his commander said could be done in a Fort Bragg, N.C., gym.

“He refurbished weight equipment in a gym that was not air-conditioned during summer months,” Fort Bragg spokesman Thomas McCollum said. “This action involved moving heavy equipment, painting dumbbells and barbells, clean-up and maintenance of machines, and the moving of the gym from one building to another. He also did outdoor work consisting of grounds maintenance and preparation on the new brigade headquarters.”

McCollum said allowing courts to specify the “type and character” of hard labor would “erode a large part of the commander’s discretion.”

“The unit commander and first sergeant determined that hard labor should be more excessive than ‘extra duty,’ and therefore had Sergeant Cardona perform duties that were physically demanding but were not ‘cruel or unusual,’ nor ‘harsh,’” McCollum said. “More importantly, they devised a strategy that would help the unit as a whole versus digging holes and then filling them in, or crushing rocks.”

Cardona’s company commander had his battalion and brigade commanders review the punishment before administering it, McCollum said.

Harvey Wolzer, Cardona’s lawyer, said the punishment ultimately went further. When Cardona’s unit tried to send him back to Iraq, the media caught wind and human-rights activists protested the idea of sending someone convicted of bad conduct against Iraqi prisoners back to the war zone. Concerns also were raised about Cardona’s safety if Iraqis were to find out about his conviction.

The command decided those issues made Cardona nondeployable, and he was honorably discharged, Wolzer said.

In a similar case, Marine Corps Reserve Sgt. Gary Pittman received a sentence of 60 days’ hard labor without confinement and 60 days’ restriction in 2004 after being convicted of assault for hitting and kneeing several prisoners, and of dereliction of duty for not calling for medical assistance for an injured inmate who later died and for allowing subordinates to beat inmates at a prison near Nasiriyah, Iraq.

Pittman never did his hard labor; that part of his sentence was disapproved by Maj. Gen. Michael Lehnert, commander of Marine Corps Installations West, Marine Corps spokesman Capt. Carl Redding said.

“The only portion of the sentence ordered executed was the reduction to pay grade E-1,” Redding said, adding that this is not uncommon in the Corps.

“Hard labor without confinement is not a common sentence,” Redding said. “And even when it is given by a military judge, that portion of the sentence is usually suspended or ordered not executed.”

Pittman was fired from his job as a federal prison guard in New York City after his conviction and was honorably discharged.

In an interview with Military Times, Pittman maintains he is innocent and was framed because the Corps needed a fall guy. He said that’s why he left the Corps, and added that when he decided to join the Army National Guard, he did not need a waiver.

“All they did was bust me down to private,” he said. “I didn’t need a waiver for losing rank.”

He was due to return to Iraq in late August as a Black Hawk door gunner. “I volunteered,” he said.

John Tranberg, Pittman’s lawyer, said his client had been a highly decorated Marine and was well-liked in his unit.

“He’s an Iraq war vet several times over,” Tranberg said. “He’s in the Army now and getting ready to go over again.”

‘Made to bleed’

Petty Officer 3rd Class Pablo Paredes found out just how harsh hard labor could be after he refused to deploy to the Persian Gulf in 2004, saying he disagreed with the war in Iraq and war in general. He was given 90 days of hard labor without confinement for missing a movement and unauthorized absence.

He said his prosecutor told his lawyer the hard labor essentially would be the same as extra duty. But when it came time for the legal hold unit tasked with administering his punishment to follow through, “everybody was completely confused because they had never heard of” such a sentence, Paredes said.

“They were trying to refer to the courts-martial manual, but it’s not clearly laid out. The commander took it from there.”

Each day, Paredes was taken out to an empty lot in a shipyard at Naval Base San Diego to pull weeds for 15 hours a day.

At first, he said, he was allowed to use a weed trimmer. Then he was told to wear gloves and pull weeds by hand. Finally, he said, they took away his gloves.

“For 2½ weeks, I pulled weeds in an acrewide area. I had to pick a certain amount every hour. It was pretty intense. There was no water or restroom. This guy would drop me off and then come back to see if I was still alive.”

After his hands began to bleed so much that he had to be taken to the hospital, Paredes called his lawyer, Jeremy Warren.

Warren said Paredes had a pre-trial offer for an other-than-honorable discharge and no court-martial, but his command said no.

“It showed the command had a political interest in his case,” Warren said. “I think the judge didn’t want to give him jail time, but to just allow him to leave the military would seem more like a reward for refusing to deploy. The judge probably didn’t expect his hard labor to be brutally hard.”

Warren called Paredes’ command section and said he was told Paredes was being treated no differently than anyone else would be. But in what seems like an after-the-fact move to bolster that claim, Paredes, who initially worked alone in the empty field, subsequently was joined by other sailors who had been charged with various transgressions but had not yet been sentenced, all of them pulling weeds together.

Paredes said he was soon redirected to a different task: working in the barracks chipping “crud off a toilet with a very small pick.”

Paredes, who said he lost 30 pounds during his punishment, was discharged after completing his sentence and now works for a nonprofit group that supports military conscientious objectors.

“Hard labor — it’s such a dinosaur,” he said. “There’s nothing clearly written, so they feel they have the discretion to do anything. That vagueness means anyone can play dumb.”

Suarez also was separated from service, leaving the Army with a general discharge in late July.

During his punishment, he said he kept digging holes rather than go absent without leave because he figured running would put him in a deeper hole — and also because he knew he had screwed up.

“I was hoping that if I stuck it out, they’d let me stay in.”