Sailors, Marines Convicted of Sexual Harassment, Adsepped, May Be Entitled to Backpay
Part I: How The Navy Cancelled its Sexual Harassment (and other) Instructions
Are you a U.S. Navy Sailor or Marine who has been convicted at court-martial between 2014 and 2017 of sexual harassment, hazing or violation of any other Secretary of the Navy (SECNAV) Instruction? Were you enlisted and had your career ended by an administrative separation board held under any provision of the MILPERSMAN? Or were you an officer separated at a Board of Inquiry (BOI)? If so, your conviction or administrative separation (adsep) may be invalid, and you may be entitled to have your career restored, your conviction expunged and to recoup thousands of dollars – or more – of backpay and restoration of benefits.
Instruction Signed by the Secretary of the Navy
The reason for this is a little-known instruction that the Secretary of the Navy signed back in 2014: SECNAVINST 5215.1E. The idea behind it was to force SECNAV and his staff to continually revisit old instructions to ensure they were up-to-date by requiring that they be placed into official revision status within seven years of their passage. They wanted to force themselves to revisit these instructions by placing a self-cancelling provision into SECNAVINST 5215.1E, so anything not placed into official revision would automatically self-cancel on the seventh anniversary of its promulgation. According to the plain language of SECNAVINST 5215.1E, no action was required for these instructions to cancel. It would be automatic.
The problem was that SECNAV’s office promptly forgot they passed this instruction and took no action, as far as anyone can tell, to put any of their old instructions into official revision status. For three years they quietly allowed countless instructions to self-cancel seemingly without realizing it. Included in this group were SECNAV’s punitive instructions, like SECNAVINST 5300.26D, signed out in 2005, which is routinely used by Navy and Marine Corps trial counsel to prosecute sexual harassment, and SECNAVINST 1610.2A (also signed out in 2005), which is used to prosecute hazing. SECNAVINST 1920.6C, which governs officer separations, including BOI (promulgated in 2006) falls into this category. And the MILPERSMAN administrative separation instruction, which is dependent in part on SECNAV Instructions may also fall into this category.
No one discovered a problem with this for three years because no one was looking.
How are Sexual Harassment Crimes Processed?
As an aside, it is important to know how crimes like sexual harassment and hazing are prosecuted in the military. Service members traditionally have been prosecuted for military crimes like sexual harassment via Article 92 of the Uniform Code of Military Justice (UCMJ). Typically, a service secretary promulgates an order banning sexual harassment, hazing, etc., and declaring it to be punitive. This provides military prosecutors with an easy tool to use because to prove a violation of Art. 92, UCMJ, it must prove two fairly straightforward elements:
- That a lawful general order existed at the time of the offending behavior, and
- that the accused violated that order.
Knowledge of the order is irrelevant when it comes to a general order or regulation. If it was created by a flag/general officer or higher, including the Secretary of the Navy, anyone on active duty in that service, or serving on active orders if they are reservists, is presumed by the law to know the order exists. As these elements are so straightforward, and lack of knowledge is no defense, Art. 92, UCMJ, is often an easy charge for prosecutors to pin on service members. It is also logistically easy. Congress doesn’t have to pass a law banning sexual harassment, hazing, etc., because the service secretaries can take care of it for them.
So from 2014 on, relying on these elements of Article 92, Navy and Marine Corps prosecutors convicted perhaps hundreds of Sailors and Marines for sexual harassment and hazing and other offenses based on violations of SECNAV Instructions, which the accused Sailors and Marines may not have even known existed.
Questions? Contact Us or Call (843) 202-4714!
Here is the problem: As of 2014, when SECNAVINST 5215.1E was put into effect, sexual harassment, hazing and hundreds of other SECNAV Instructions ceased to exist. They were allowed to expire automatically. Ironically, lack of knowledge on the part of JAG lawyers that the order did not exist is what allowed so many Sailors and Marines to be convicted of these offenses. In fact, no one realized any of this for about three years – not the civilian and military defense counsel representing service members accused of Art. 92 violations for hazing and sexual harassment; not the prosecutors prosecuting them; not the Sailors and Marines themselves; and not the military judges. Many people, in fact, pleaded guilty to sexual harassment and went to the brig or had their careers ended without a second thought.
But if you knew about SECNAVINST 5215.1E, you would have understood the problem with element #1 of Art. 92, UCMJ. No one can be guilty of violating a lawful order if no such order existed at the time they were alleged to have violated it.
Thus, if you were prosecuted and convicted for sexual harassment or hazing for behavior that was alleged to have occurred after these SECNAV instructions self-cancelled, you may be asking yourself, “How can I be guilty of violating an order that did not exist? And how (and who) can help me exercise my right to regain my career and lost money and benefits?” That is exactly the question you should be asking.
Questions? Contact Us or Call (843) 202-4714!