Earlier this year, a battalion commander within the 18th Military Police Brigade handed out two Article 15s to a staff sergeant and a private first class accused of faking an identity to get a nude photo from another soldier, then sharing it with others in the unit.
The results of the non-judicial punishment were published in the unit’s monthly newsletter, with a short narrative of the command investigation and a finding of bullying.
“The usage of the word 'conspiracy’ in the newsletter served to highlight the fact that the soldiers worked together to obtain photos,” Beth Clemons, a U.S. Army Europe spokeswoman, told Army Times on Friday.
However, what the newsletter did not clarify is that the commander, the 709th Military Police Battalion’s Lt. Col. John Copeland, did not find the soldiers guilty of conspiracy, and the photo in question apparently did not include what the Uniform Code of Military Justice refers to as the “private area.”
A story based on the newsletter, originally published by Army Times on May 3, launched a wave of feedback on Facebook and Twitter. Many argued that the soldiers involved should be kicked out of the Army, while others countered that a reduction in rank is no small punishment.
“People saying this should be sexual exploitation – there weren’t nude photos,” a soldier familiar with the case, who spoke on background to avoid retaliation, told Army Times.
The soldiers, both women, had originally both been charged with conspiracy and bullying, Clemons confirmed, with the NCO also charged with abusing a subordinate.
But ultimately, their battalion commander upheld only the bullying charges.
The story described in the April “Vigilant Justice” section of the brigade’s newsletter started last June, when the Fort Campbell, Kentucky-based 551st Military Police Company arrived in Germany for a rotation.
The female staff sergeant and private first class were roommates at U.S. Army Garrison Wiesbaden, according to sworn statements in an investigation by the Army Criminal Investigation Command that the soldier speaking on background provided to Army Times.
On June 25, the unnamed soldier said, the private announced that she thought she might be catfishing another soldier in their unit. She had been scrolling through the Whisper app, which lets users post anonymous messages, and readers can see how close by they are. The two began chatting about work, and possibly meeting up to cuddle, according to screenshots of their exchange.
Catfishing commonly refers to using a fictitious identity to seek an online relationship.
Based on the message and the initials of the person doing the posting, she told her roommate, she was pretty sure it came from another private in the platoon. According to screenshots of the conversation, she began chatting with a male private on June 21.
On June 23, the female private asked the male private if he had any pictures ― no face required ― and he responded with a shot of his torso. The photo showed his bare chest and stomach, according to a screenshot of a conversation between the two privates provided to Army Times.
She told her roommate about it, and then the NCO confirmed who had sent the photos, telling her junior soldiers to knock it off. She then reported it to her platoon leader and sergeant, the soldier said, who brushed it off as “dumb privates.”
Cut to August, and the incident came up in a commander’s inquiry, according to a sworn statement from a junior enlisted soldier.
The move comes in response to the Marine Corps scandal earlier this year, and concerns about legal loopholes.
Three of the NCO’s subordinates told the investigator that they had witnessed the NCO and private looking at Whisper together, according to their statements, with the NCO feeding lines to the private, and then sharing the photo with other soldiers.
But according to text messages provided to Army Times, the staff sergeant was on duty from 4:30 p.m. to midnight when the photo was solicited and received.
Charges came down in January, the soldier with knowledge of the case told Army Times, and on Feb. 5, the staff sergeant appeared for her Article 15 hearing. The sentence was a reduction in rank and 10 days of restriction, according to a proceedings document provided to Army Times.
“I understand the use of the word ‘conspired’ does cause confusion, especially since one of the charges was conspiracy,” Clemons said. “What I can tell you is that the commanders adjudicate each disciplinary action based on the totality of the circumstances and the specific facts of the case. In this case, the soldiers were charged with the offense, but found not guilty.”
When it was first published, the story of the two soldiers manipulating another into giving up “nude” photos struck a chord with readers.
“Don’t we have a program that rhymes with harp and starts with S?,” Tyler J. Davis commented on Facebook, invoking the Army’s Sexual Harassment and Assault Response and Prevention program. “Doesn’t said program cover things like this? Forgive me if I’m wrong.”
Others were surprised not to see criminal charges, or even an involuntary separation.
“Speaks volumes that the [staff sergeant] was only reduced to [a sergeant] for doing this to [a private first class],” Dave Crozier wrote. “[She] should have been kicked out.”
Earlier that week, Sen. Kirsten Gillibrand dug into Army Vice Chief of Staff Gen. James McConville after the Defense Department reported negligible progress on reducing sexual assault in the services.
"I am tired of the statement I get over and over from the chain of command: ‘We got this, Ma’am. We got this,' " Gillibrand said. “You don’t have it. You’re failing us. The trajectories of every measurable are going in the wrong direction.”
In addition to no decrease in sexual assault reports or increase in prosecutions and convictions, the DoD report included survey data on toxic command climates and the sexual assault rates of units described that way.
Many service members feel that their chains of command don’t take harassment and assault seriously, Gillibrand said, and so are reluctant to report them.
Following a widespread Marine Corps nude photo sharing in 2017, both the Navy and Marine Corps banned exchanging illicit photos specifically, beyond the existing UCMJ statute regarding indecent recording and broadcasting.
Weeks later, then-Rep. Martha McSally, R-Ariz., sponsored the Protecting the Rights of IndiViduals Against Technological Exploitation Act to address victims of nonconsensual photo sharing. The House of Representatives passed the bill unanimously, but it has been sitting with the Senate Armed Services Committee since May 2017.