The Mayer Law Blog

Army To Initiate Discharge Proceedings Against All Convicted Sex Offenders

Posted November 21st, 2013 in Military Law

Yesterday, the Army Times reported the following:

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.

This begs a few questions, which the article left unanswered (they also provided no link to the actual directive).

1. What offenses count under this provision? The term “sex assault” has been expanded to include many, many different offenses. The severity of these varies widely.

2. How many soldiers will actually be impacted by this rule?

Here’s what we do know:

1. Those who have already faced administrative separation/show cause proceedings for the same offenses, but were retained, will not face another administrative separation proceeding. This follows longstanding rules concerning double jeopardy in administrative separations.

2. If an enlisted person was allowed to reenlist and start a new term of service, they may still be in jeopardy under this rule, even though the misconduct did not occur in the current term of service.

3. It appears that those who would be entitled to an administrative separation board/board of inquiry will still be afforded those rights.

4. The rule requires that individuals be processed for administrative separation, but it does not make mandatory the separation itself. This means an individual can still prevail with a board or with his/her command and be retained. In this way, it is very similar to the Army’s current policy for mandatory administrative separation processing for drug offenses.

Either way, this will make for some interesting cases for military lawyers across the globe, as old wounds (some very, very old) will be reopened and subjected to renewed scrutiny.

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