Is retirement an option for general accused of forcible sodomy?
By HENRY CUNINGHAM AND DREW BROOKS | The Fayetteville Observer | Published: October 7, 2012
Under military law, Brig. Gen. Jeffrey A. Sinclair might be able to ask the secretary of the Army for permission to retire rather than face possible court-martial for forcible sodomy.
Fort Bragg officials declined to discuss whether retirement is a possibility for Sinclair or if he has made such a request.
"It is premature to discuss this," Ben Abel, a Fort Bragg spokesman, said.
A military justice fact sheet furnished by Fort Bragg indicates that the Army's top civilian leader, Army Secretary John McHugh, has "approval authority" for a resignation request from an officer.
If petitioned by Sinclair, McHugh would have to take into account comments by his boss, Defense Secretary Leon Panetta.
"It's an outrage that we aren't prosecuting our people involved here," Panetta said in a Sept. 27 interview on sexual assaults in the military. NBC News reported that only 240 cases were prosecuted out of more than 3,000 reported last year.
Victor Hansen, a retired Army lieutenant colonel who served as a military lawyer, doesn't believe that Sinclair will get the option of retirement.
Hansen, who serves as vice president of the National Institute of Military Justice, said that he represented general officers during his time in the military, but said none of those cases ever made it to trial. The Uniform Code of Military Justice -- basically the law covering people in uniform -- has a provision that can allow retirement in lieu of a court-martial.
But Hansen said he doesn't think Sinclair will be allowed to escape the public scrutiny of a trial.
"I wouldn't expect it," Hansen said. "They would not let him resolve that quietly."
In addition to the forcible sodomy charge, Sinclair is accused of wrongful sexual conduct, attempted violation of an order, wrongfully engaging in inappropriate relationships, misusing a government travel charge card, violating general orders by possessing alcohol and pornography while deployed, mistreating subordinates, filing fraudulent claims, engaging in conduct unbecoming an officer and a gentleman, and engaging in conduct prejudicial to good order and discipline, officials have said.
The Uniform Code of Military Justice includes some offenses that are not criminal in civilian life.
For instance, U.S. Central Command, which oversees U.S. military activity in the Middle East, prohibits alcohol and pornography under General Order No. 1, which addresses the sensitivities of the region's Muslim countries.
Fort Bragg has announced the charges, but otherwise Army officials are keeping quiet about even the most routine aspects of the case. Sinclair's military trial defense lawyer and his civilian legal representative have both requested not to be identified at this time, Abel said.
Sinclair faces an Article 32 investigation, a preliminary hearing to recommend whether he should face a court-martial. No date for the hearing has been announced.
Fort Bragg officials say a hearing officer has been appointed, but so far they have declined to identify the person.
In May, Sinclair was removed from his job as the 82nd Airborne Division's deputy commanding general for support in southern Afghanistan. A criminal investigation followed. He had been deputy commander since July 2010.
His present assignment is special assistant to Lt. Gen. Daniel Allyn, commanding general of Fort Bragg and the 18th Airborne Corps.
If Sinclair's case goes to a court-martial and he is convicted of the most serious charge -- forcible sodomy -- he could be dismissed from the Army and sentenced to life in prison without parole.
While experts on the military justice system doubt Sinclair, even if convicted of forcible sodomy at a potential court-martial, would spend the rest of his life in prison, they do think any potential punishment could be severe.
That's because, while general officer misconduct is not unheard of, it is rare for high-ranking military officials to face those charges at trial. And Sinclair, if his case does ultimately go before a military jury, could face the most serious charges against a general officer in decades.
"It's very rare, very rare for a general officer to face a court-martial," said Hansen, the retired military lawyer who now teaches at New England Law-Boston. "For an officer to face this serious of a charge, I cannot think of one. ... It's very unusual."
The high-profile case has already garnered international attention, bucking the perception that general officers are held to a different standard.
"There's a claim that officers get punished less or differently than enlisted," Hansen said. "And there's some merit to that claim."
Often, leadership elects to punish an officer outside of a court-martial, Hansen said, but the announcement of the charges against Sinclair shows investigators are taking this case seriously.
Still, they will have to walk a fine line in the months leading up to any court-martial, which is possibly contributing to the tight-lipped nature of officials around the case.
When Sinclair was brought home from Afghanistan in May, officials declined to give specifics about why the general returned to Fort Bragg months ahead of the 82nd Airborne Division.
Public affairs officers in that country were also instructed to avoid talking about the case to a Fayetteville Observer reporter who was embedded with the 82nd at the time.
And now, even though the charges have been released publicly, officials have withheld specific details and are only responding to inquiries in writing.
Hansen, who has worked on high-profile cases before, said he's certain responses to media inquiries are being examined by Army lawyers before release.
"There's a real fine line there," Hansen said of the difference between getting out in front of a case from a public affairs standpoint and avoiding tainting the case from the command aspect, which could lead to convictions being overturned in higher courts.
"Any comments could be used against them," Hansen said. "There's a saying from the appellate courts: 'The mortal enemy of the criminal justice system is unlawful command influence.' "
Hansen said he expects the Sinclair case to drag on.
"This is going to be a very complicated case," Hansen said. "It's going to be hard for everybody. It's going to be a long haul with lots of twists and turns. Lots can change."
Army officials say the most recent general officer to be court-martialed was Brig. Gen. Roger B. Duff, former commander of the 95th Training Division, on June 8. Duff pleaded guilty to two charges of false official statement, conduct unbecoming and seven charges of wearing unauthorized badges, awards, or ribbons. A military judge sentenced Duff to two months confinement and a dismissal, which is not final.
The only other general court-martialed in recent years was Maj. Gen. David R.E. Hale. He pleaded guilty in March 1999 to seven counts of conduct unbecoming an officer and a gentleman and one count of making a false official statement, based on an adulterous relationship. He was sentenced to a reprimand, a $10,000 fine and the forfeiture of $1,500 per month for a year. The fine was limited to $1,000 per month due to a plea agreement with the government, and the Army Grade Determination Review Board ordered that he retire as a brigadier general.
Brig. Gen. Jeffrey A. Sinclair, 82nd Airborne Division and Regional Command (South) deputy commanding general of support, speaks with an Afghan leader during the Combined Team Zabul Winter Operations Back Brief for American and Afghan key leaders at Forward Operating Base Eagle, Nov. 16, 2011.
AMANDA HILS/U.S. ARMY