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Ask the Lawyer: Unlawful command influence

Q. My battalion commander has just issued a policy memo stating that any soldier under his command who commits adultery with a deployed service member’s spouse will face at least a special court-martial and a bad-conduct discharge due to the effect on overall battalion morale and on good order and discipline. Can he do this?

A. No. Under Article 37 of the Uniform Code of Military Justice, this type of policy memorandum would be deemed unlawful command influence because the commander must not have an inflexible policy on the disposition of a case or the punishment to be imposed. A convening authority must consider each case individually on its own merits.

Military personnel who have been charged with an offense under the UCMJ often say they believe a senior enlisted member or officer wrongly influenced their case.

Unlawful command influence, or “UCI” in military law jargon, has been referred to as the “mortal enemy of the military justice system.”

UCI occurs when senior personnel willingly or unwillingly act to influence court members, witnesses or others participating in military justice cases.

Command influence not only jeopardizes the validity of the military justice system, it also undermines good order and discipline of military members, their respect for the chain of command and public perception of the military justice system.

My law partner, Greg T. Rinckey, often saw recurring mistakes on the part of the commandwhen he served as both a trial defense counsel and a prosecutor in the Army judge advocate general corps.

He says UCI is a great defense to many charges brought by commanders.

A clear example of an act that would qualify as UCI is a commander expressing an inflexible attitude toward an offense — for instance, that all barracks thieves need to be confined and receive a bad-conduct discharge.

Once identified, the remedy for unlawful command influence can range from reduction of charges to an outright dismissal for the service member originally charged.

If you believe you are the victim of unlawful command influence, you need to speak with your defense counsel so the issue can be communicated to the military judge.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.