Explaining the Sinclair demotion

The case of Jeffrey Sinclair, the former deputy commander of the Army’s 82nd Airborne Division involved in a sordid sex scandal, has been a lightning rod in the controversy over sexual assault in our armed forces. It ended last Friday with Sinclair reduced two ranks, from brigadier general to lieutenant colonel, and sent into retirement. For those who believe the military doesn’t take sexual assault seriously, the fact Sinclair served no jail time and was allowed to retire with a generous pension was an outrage. For those who think there is a politically correct witch hunt, Sinclair’s demotion, despite being convicted of only relatively minor charges, was excessive. It was, however, a just and lawful result.

Sinclair had been a rising star, an Airborne Ranger with five combat tours in his 27-year career, when has was relieved of his post and sent home from Afghanistan in May 2012. That September, he was charged with forcible sodomy, multiple counts of adultery and having inappropriate relationships with several female subordinates. He became the most visible symbol of a battle to crack down on sexual assault in the military.

{mosads}Those following the case only through press accounts were stunned in March when the most serious charges of sexual assault and forcible rape were dropped, with Sinclair allowed to plead guilty to the lesser offenses of adultery, maltreatment of a subordinate, engaging in improper relationships, willful disobedience of an order, wrongful use of a government travel card, wrongful possession of pornography, and conduct unbecoming an officer. He was fined $20,000 but given no jail time.

After Sinclair’s plea, howls of protest were heard from Capitol Hill. Sen. Patty Murray (D-Wash.) said, “I am really disappointed: It certainly adds to the picture we need to make changes.” Rep. Jackie Speier (D-Calif.) called the case “another example of why commanders shouldn’t be deciding whether someone is prosecuted.” And Rep. Niki Tsongas (D-Mass.) declared, “There can be no doubt General Sinclair abused and debased his authority in a reprehensible way, using it to perpetuate a toxic military culture which accepted even criminal behavior as the norm.”

Sen. Kirsten Gillibrand (D-N.Y.), the sponsor of a bill to take the decision to prosecute sexual abuse cases out of the military’s chain of command, cited the outcome as more evidence of the need for reform, arguing, “It’s not only the right thing to do for our men and women in uniform, but would also mitigate issues of undue command influence that we have seen in many trials over the last year.”

But the Army’s case against Sinclair was exceedingly weak. The chief accuser proved exceedingly unreliable, constantly changing key details of her story, and had been in a long-term, consensual relationship with the accused. Both of these factors undermined her credibility as a witness, regardless of whether the adjudicative forum was military or civilian, and even led the prosecutor to quit the case, ostensibly from ethical considerations in pressing forward with the court-martial. Further, the presiding judge ruled there was unlawful command influence in the case, an issue that has plagued many other prosecutions for reasons we explained in an earlier piece.

The other shoe dropped Friday, when Secretary of the Army John McHugh announced Sinclair would be demoted. It’s exceedingly rare for a general officer to be reduced one grade, much less two; indeed, the announcement noted that the Army had not done so in more than a decade. In the statement, McHugh explained “Sinclair displayed a pattern of inappropriate and at times illegal behavior both while serving as a Brigadier General and a Colonel. I therefore decided there was sufficient evidence and cause to deny him those benefits.”

At first blush, then, this harsh treatment of a star officer might seem politically motivated, given the pressure to “fix” the problem of sexual assault in the military from both ends of Pennsylvania Avenue. Speaking last August, before the most serious charges were dropped, Retired Maj. Gen. Charles Dunlap, a Duke University law professor and a former deputy judge advocate general for the Air Force, observed the atmosphere surrounding sexual assault cases in the military has become “hyperpoliticized” and that for Sinclair to receive a fair trial would require jurors to “exercise moral courage in a way they’ve perhaps never been asked to do before in a military justice setting.”

But the retirement of officers in the last grade in which they served satisfactorily is indeed the statutory and regulatory standard and in fact not unprecedented. The most comparable recent precedent is the 2010 case of Maj. Gen. Thomas J. Fiscus, the Air Force’s former top military lawyer, who was reduced to colonel “after an investigation found him involved in several affairs and improper conduct with more than a dozen women.”

The governing reference here is Army Regulation 15-80, which implements for the Department of the Army federal statutes governing military officers’ service and retirements. The Army Regulation provides “Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory” when “Reversion to a lower grade was (1) Expressly for prejudice or cause, (2) Owing to misconduct” or “(4) The result of the sentence of a court-martial.” While it also provides “One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory,” Sinclair has in fact pleaded guilty to a pattern of misconduct.

While he was doubtless facing substantial political pressure to hit Sinclair hard to send a message, McHugh was acting well within his authority and there is indeed recent precedent for this sort of punishment. Moreover, because Sinclair’s misconduct was shown to have pervaded his service as both a colonel and a brigadier general, the grade reduction determination fits the statutory and regulatory criteria precisely as Congress and the Army’s regulation intended.

On the other side of the coin were those who believed the punishment too light. Speier declared, “This sentence is a mockery of military justice, a slap on the wrist nowhere close to being proportional to Sinclair’s offenses.”

Yet, whatever one believes actually happened, the Army was not able to prove the most serious charges against Sinclair, which could have netted him life in prison, reduction in rank to private, dismissal from the Army and forfeiture of all benefits. Proof was virtually impossible in this case given the alleged victim’s massive credibility issues, so prosecutors did in this case what they do in the exercise of prosecutorial discretion in similar cases all over the country in civil contexts: They accepted a plea deal on lesser charges. There is nothing unusual or extraordinary about this outcome, in that, nationwide, district attorneys and assistant U.S. attorneys sign off on deals like this every single day. Given what Sinclair was convicted of, confinement would have been excessive, unwarranted and unprecedented. Finally, as McHugh noted, they were outside the scope of his authority. “During Capitol Hill hearings, I was asked whether Sinclair would receive a pension after proceedings were complete,” McHugh said. He added, “Under federal law, if a person has earned a pension because of their years of service, they are entitled to those benefits; Congress might consider a change in the law that would allow greater flexibility and accountability.”

It is interesting to ponder what the outcome would have been in this case if such a statute had been on the books when the secretary made his grade determination. If he had the authority to discount Sinclair’s unblemished service up through the rank of lieutenant colonel and strip him of his pension for the conduct proven, by his own admissions, at his court-martial — essentially, having an affair with a person who worked for him — would the political pressure have led the secretary to do so? From McHugh’s testimony, in which he essentially blamed Congress for passing statutes that tied his hands and prevented him from discharging Sinclair with no retirement benefits, the answer appears to be yes. In our view, this is the real danger lurking in this entire issue — the temptation to allow the fervor of reform to infect just determinations in individual cases. Sinclair served for well over two decades honorably and, evidenced by his promotions, extraordinarily well. Stripping him of retirement benefits for misconduct that simply may have gotten him fired at Microsoft or General Motors is an emotional answer to a set of issues best analyzed rationally and dispassionately, for the future health of the force. Enhancing the secretary’s power to strip officers of their earned benefits simply based on an administrative proceeding, governed by malleable standards and procedural rules, is treacherous territory, if the armed forces value their ability to promote and retain the best officers to senior leadership positions.

Joyner, a former Army officer and combat veteran, is an associate professor of strategic studies at the Marine Corps Command and Staff College. Bracknell is a retired career Marine officer, national security attorney and member of the Truman National Security Project. These views are their own.