Army to Discharge Sex Offenders Regardless of When Convicted

The Secretary of the Army has ordered discharge proceedings to begin on all convicted sex offenders.

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The Secretary of the Army has ordered discharge proceedings to begin on all convicted sex offenders.

Army Times (“Army to discharge convicted sex offenders“):

The secretary of the Army has issued an order to round up all convicted sex offenders in the service “as soon as possible” and initiate proceedings for their discharge from the Army.

The move is part of the Army’s campaign against sex assault in the service. Soldiers convicted of a sex offense who are deployed will be returned to the states, said Troy Rolan, an Army spokesman.

The Army is working on guidance to implement the Nov. 7 directive issued by Army Secretary John McHugh, Rolan said.

“Purging convicted sex offenders from the ranks is just one of the steps Secretary McHugh is taking to combat sexual harassment and assault in the Army,” said Maj. Christopher Kasker, a spokesman for McHugh, in an emailed statement. Kasker noted that McHugh also recently ordered that officers and noncommissioned officers be assessed in their professional evaluations for their efforts to create a climate free of sexual assault and harassment.

“The message is simple: Sexual assault is a crime, and it will not be tolerated,” Kasker said.

While simple, retroactive application of that standard is potentially problematic. And that is indeed what’s contemplated:

Separation proceedings for the soldiers will be started regardless of the date of their conviction for the sex offense, according to the directive.

For enlisted soldiers, separation proceedings will start even if after their conviction they were evaluated for retention and allowed to stay. Commissioned and warrant officers will not face separation proceedings if they were already evaluated for retention after their conviction and retained, according to the memo.

While one naturally hesistates to take the “pro-sex offender” position in these matters, a blanket application of that policy is grossly unfair. If someone were convicted, say, fourteen years ago of an offense, deemed worthy of staying in the service, and has performed in an exemplary manner since, it would be outrageous to throw them out short of attaining pension eligibility. Having been allowed to stay in, they would have made a decision to continue serving contingent on the promise of being able to retire after 20 years if they didn’t commit further infractions. Reneging on that promise after the fact would, in essence, be theft.

There is, however, a bit of contradictory guidance: 

“This directive establishes new policy to ensure that the decision to retain any soldier convicted of a sex offense is fully informed and in the Army’s best interest,” the memo states.

That would seem to go against the notion that this is a blanket “throw ’em all out” policy. But it appears near the beginning of the memo (which is dated 7 November but seems to have just been made public) and seems, in context of what follows, to be mere throat clearing.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. JKB says:

    “The message is simple: Sexual assault is a crime, and it will not be tolerated,” Kasker said.

    So if we end up with another president like Bill Clinton, he is not to be tolerated as commander in chief? Or is it a case that if you have the juice to avoid a formal conviction, that sex offender is to be tolerated?

    You’d think with all the lawyers they have on these political staffs, they’d be able to grasp the consequences of their posturing. Policy good, but pontificating ignorantly is just hilarious.

    I remember a workplace violence policy that came out where they stated they would act aggressively against such behavior. Really, aggressively, wouldn’t that be approaching workplace violence behavior?

  2. Neil Hudelson says:

    @JKB:

    So if we end up with another president like Bill Clinton, he is not to be tolerated as commander in chief?

    You really don’t understand civilian control of the military, do you? Nor, apparently, do you understand the difference between sexual assault and consenting relations.

    Or is it a case that if you have the juice to avoid a formal conviction, that sex offender is to be tolerated?

    Yes, because if they are not convicted legally they are not sex offenders.

    You’d think with all the lawyers they have on these political staffs, they’d be able to grasp the consequences of their posturing.

    What does this word salad even mean? Are you talking about government lawyers who advise policy? Well then you have the relationship backwards: political/policy staff consult lawyers, not (usually) the other way around.

    Policy good, but pontificating ignorantly is just hilarious.

    I do hope the irony of this statement coming from you isn’t lost

    I remember a workplace violence policy that came out where they stated they would act aggressively against such behavior. Really, aggressively, wouldn’t that be approaching workplace violence behavior?

    Depends on if you understand what the word “context” means and how its applied to normal communications.

    .

  3. MM2 says:

    @JKB: I know you think you made some kind of clever joke, but the President is civilian and not subject to UCMJ and reacting aggressively does not equal violence. A full court press is an aggressive defense. Bindweed grows very aggressively if left untreated.

    To the larger point of the article, blanket policies are often bad ideas. A 19 year old who slept with a 17 year old should not be treated like a pedophile or a rapist.

  4. Tommy says:

    James, any idea what sort of discharges they will give to those involved? I ask because if it’s anything less than an Honorable, it would seem as though these people are being punished again for the same offense.

    I don’t mean to say that what they were convicted of was OK, but they had the chance to dump them and chose not to, it would seem unfair to hand out a bad 214 after the fact.

  5. Moosebreath says:

    @MM2:

    “I know you think you made some kind of clever joke, but the President is civilian and not subject to UCMJ and reacting aggressively does not equal violence.”

    And accusation of sexual assault does not equal a conviction.

    So other than the fact that every particular of it was wrong, JKB’s analogy was spot on.

  6. al-Ameda says:

    @JKB:

    So if we end up with another president like Bill Clinton, he is not to be tolerated as commander in chief? Or is it a case that if you have the juice to avoid a formal conviction, that sex offender is to be tolerated?

    Wasn’t Monica Lewinsky a consenting adult?

  7. grumpy realist says:

    I guess I have the dumb question: “can they even do that?”

    It’s probably argued as not be a post facto penalty because they’re not taking a right away, but a privilege. (If I remember from our thread on dishonorable discharges.)

  8. Andy says:

    Enlisted personnel who have more than six years of active service cannot be administratively separated without first meeting administrative separation board. If the board recommends retention then that decision can only be overruled by the service Secretary.

    If the Army really intends to implement this, then the Secretary of the Army will be signing a lot of orders overruling separation boards. For a whole host of reasons, I think that’s unlikely – I think what will probably happen is that all these people will go before separation boards and whatever the board decides will be adopted.

  9. Andy says:

    @grumpy realist:

    I guess I have the dumb question: “can they even do that?”

    Service secretaries have wide latitude in this area, particularly with the enlisted force. I’m not as familiar with officers.

  10. Gromitt Gunn says:

    I have the same potential problem with this that I have with sex offender registeries, which is that there seems to be little to no attempt to define “sex offender” based on severity and/or circumstance.

    Some 18 year old shouldn’t end up on a registry for life because he turned 18 two months before his long-term girlfriend turned 16. He could be a high school senior and she could be a junior, and no one in their right mind would consider that to be a creepy situation on a macro level.

    Some drunk dude who pees in an alley at 3:00 am shouldn’t end up on a registry or getting discharged a decade later.

    etc.

  11. KM says:

    If someone were convicted, say, fourteen years ago of an offense, deemed worthy of staying in the service,

    Who deemed them worthy is the real question, I suppose. The whole point of all this crap is because they weren’t taking things as seriously as they should – overturning legal convictions and superior officers dismissing things they personally felt didn’t mean anything. Why in the world would you let a convicted offender stay? Are they really that valuable/irreplaceable? They are, by definition, a criminal; thus by allowing them to continue you acknowledged they did it but don’t care because fill-in-the-blank. I would have to know what justification was given to allow that individual’s service to continue – it could just be the old-boys network in play again.

  12. Electroman says:

    I suspect that these folks will be given “General discharges under honorable circumstances”. That takes almost nothing away from them vs an Honorable discharge. They’d get the same VA benefits, retirement (if they’ve been in long enough) etc. I think all that would be off-limits to them is civilian employment with DoD, and I’m not even sure that that restriction still exists.

    I agree with the comments about how easy it is to be branded a “sex offender” for reasons that make little sense. Luckily for me, when and where I went to high school, the age of consent was (and still is) 15!

  13. KM says:

    @Gromitt Gunn:

    Some 18 year old shouldn’t end up on a registry for life because he turned 18 two months before his long-term girlfriend turned 16.

    Wouldn’t the Romeo and Juliet clauses deal with that? It was my understanding that there were laws specifically for scenarios of teenagers in that age range for just that reason.

  14. JKB says:

    @al-Ameda:

    And Paula Jones filed suit.

    It isn’t that the policy is binding on the civilian non-Army leadership of the military. It is that it creates a situation where the soldiers are to be held to a standard that is not bet by their commanders, and thus interferes with good order and discipline. Not to mention a conflict with the American tradition of the rule of law, where the law applies to all individuals regardless of rank or position.

  15. Andy says:

    @Electroman: A general discharge would deny them VA educational benefits. It’s considered a bad discharge, even if it’s the least-bad discharge.

    As long as the person is serving honorably, I don’t think there is any way that the Army can force them out with anything less than an honorable discharge.

  16. Franklin says:

    @JKB:

    Or is it a case that if you have the juice to avoid a formal conviction, that sex offender is to be tolerated?

    Actually, yes I do have a problem with punishing people who haven’t been convicted of anything.

    (Note to my children: but that doesn’t apply to you!)

  17. al-Ameda says:

    @JKB:

    And Paula Jones filed suit.

    As I recall, Clinton settled that suit out-of-court, there was no trial, no conviction. Therefore the discharge circumstances here would not appear to – if they ever would in the abstract – apply to Bill Clinton with respect to Lewinsky and Jones. I suppose impeachment just wasn’t enough, right?

  18. Gromitt Gunn says:

    @KM: “Romeo and Juliet” laws – as well as statutory rape definitions, and ages of consent – vary greatly by jurisdiction.

    Perhaps, because I am a middle-aged gay guy whose sex life was illegal in most states until Lawrence v Texas in 2003, I am more sensitive to who gets regarded as a sex offender than the average person.

  19. Stacey says:

    When will people who committed (notice past tense) be allowed to live life? These people have families, bills to pay and obviously completed punishment. I do not condone what they have done, however a court of law determined their status once, enough is enough. Are they going to ask them to publicly register as well? Retroactive application is especially damming. I know of a person with a 30 year old conviction yet is a Predator for life. If someone is considered that dangerous for an entire lifetime why were they let out in the first place? Maslow’s hierarchy of needs apparently does not apply to publicly registered FORMER offenders because the stigma attachment is too great to overcome. This is a barbaric form of control that makes no one safer except the lemmings who believe they have a right to know who the people who committed a sex offense are. We did not know this stuff 20 years ago-no one cared and we are no more safer knowing it now.

  20. 11B40 says:

    Greetings:

    A while back i read a book by David Finkel about his wonderful embeddedment adventure in Iraq. (Sorry, but I forget the title.) In the book, he stated that back then and there our miraculous all-volunteer required criminal justice waivers for about 15% of its enlistees, so that may be why all those savings I was expecting from the closure of under-utilized brigs and stockades never materialized.

    Also, it was kind of neat, in a socially just, progressive way, (or should that be Orwellian) that a bit of special consideration was found for our commissioned and warrant officers. I guess that that “and a gentleman” thing has expired in our fundamental transformation.

    My only real concern, however, is that this doesn’t turn into some kind of sexual dysfunctionite pogrom that results in really really strange fruit hanging in our military trees.

  21. grumpy realist says:

    @KM: unfortunately depends on the state…..and remember that the R&J clauses were separate legislation written specifically to deal with a situation that everyone realized was brain-damaged under present law.

    That’s the problem with legislation–stupid second-order effects don’t get corrected until later, by which point several people already have had their lives trashed/lost their patent rights/whatever. (We’re still fixing the problems with the Hatch-Waxman Act. And that was passed over 20 years ago!)

  22. grumpy realist says:

    @JKB: Dude–anyone can file a suit against anyone for anything. It means absolutely nothing. Getting a conviction means something.

    Since Paula Jones and Clinton managed to come to some form of agreement and both signed off on it, he was never convicted of anything. So he’s not guilty of anything. Or do you consider the signing of an agreement to indicate guilt?

    If so, there are a whole lot of companies who signed agreements with the FEC who will be very, very sorry….

  23. Ken says:

    @JKB: So if we end up with another president like Bill Clinton, he is not to be tolerated as commander in chief?

    Your inability (or unwillingness) to differentiate between inappropriate but consensual sex and sexual assault leads me to believe that you have little, or nothing to offer in this discussion.