Ethical Liability: Holding Senior Military Leaders Accountable for their Ethical Failures
Stephen T. Messenger
America’s profession of arms is an institution grounded on the nature of ethics and propriety dating back to its inception. However in the light of recent ethical violation headlines, Secretary of Defense Chuck Hagel expressed his concerns in February that there may be a breakdown in the ethical climate of today’s military. It is logical to assume this when cheating scandals, inappropriate Email traffic, and senior leaders accused of various violations from counterfeiting poker chips to accepting bribes are inundating news channels. Nonetheless, these ethical violators are outliers in our ethical climate and not the norm. This stems from a dangerous individual perspective that has infiltrated into the minds of some military senior leaders: I am above the law and ethical rules no longer apply to me. The answer to this ethical dilemma is to hold these leaders accountable through their retirement benefits.
The military’s unique twenty year retirement structure creates a well-defined goal for many military members to work towards. However, after twenty years elapse and retirement concerns lessen, the desire to abide by every ethical rule could be tempted to fade along with it. This is when rules may not apply as much in their minds since the service member is no longer working to earn a retirement and can depart the military on his or her own fiscal terms. This situation also allows the individual to take more ethical risks because being asked to leave the service is no longer a threat to his or her financial stability. In fact, leaving the service can easily provide a pay raise (retirement plus civilian salary), a stable lifestyle, and less potentially stress. Abiding by an unwavering code of ethics suddenly becomes not so important to an ethical outlier.
Contrast this mindset to a service member with seventeen years in the military. Their ethical decision making criteria is much different. By taking a chance on a questionable moral issue, they risk their career, retirement, health benefits, and financial stability for them and their family. This risk is generally too great to attempt. The leader is almost forced to make quality ethical decisions based on their military timeline and retirement plan.
It is time the military leverages retirement benefits to hold leaders at all levels accountable. An offense that would cause a service member to be discharged at seventeen years must have the same impact on one with thirty years of service: loss of retirement benefits. There is no mystical line crossed at twenty years that relieves one of being held accountable. In fact, they should be held more accountable to set the standard for those coming behind them.
Holding senior leaders accountable through retirement benefits increases their individual risk involved with ethical decisions. This applies to ethical violations that seldom result in jail sentencing but quiet discharge from the service: driving under the influence, adultery, sexual harassment, and general ethics violations. Eliminating retirement benefits would dramatically increase the ethical risk aversion of officers with more than twenty years of experience. Moreover, it provides an accountability measure to ensure we are providing the American people the most ethical leaders our Nation has to offer.
It may seem harsh at first glance to take this hard earned benefit away from someone who served our Nation for so many years. However, we cannot afford to allow senior leader ethical violators to quietly slip into the civilian world with no long lasting effects. First and foremost, this method provides a meaningful punishment for those willfully committing ethical violations. In addition, it shows leaders at all levels that our military will not tolerate those who lie, cheat, or steal, and we will hold them accountable with lasting repercussions. Removing retirement benefits is fiscally responsible; the American people should not have to financially support someone who is not aligned with American values. Finally, holding leaders accountable is the right thing to do. Our military does not have the time nor the inclination to see another senior military official think he or she is above the law.
The twenty year line that separates those with retirement benefits and those without is an important part of a service member’s career. However, it is just an arbitrary line. Crossing to the other side does not make one above ethical conduct or the law. The reality is, these rare cases must be held to a higher standard. By maintaining control over their retirement benefits, the military can positively influence actions of senior leaders. If a violation occurs that would remove a service member having less than twenty years of active duty service resulting in no retirement, the same rules should apply to everyone with more than twenty years of service. This means neither quiet retirements nor sweeping violations under the rug, but establishing a measure of accountability to hold us all answerable for our actions. The individual who feels he or she has earned the right to be above military ethical principles has also earned the right to be denied retirement benefits from the United States Government. The solution to discipline these outliers is simple: one ethical standard for all leaders, regardless of time in service, with accountability measures to discipline those who willfully disobey.
About the Author(s)
Ethics... There are ethics and then there are ETHICS...
Why is the military so concerned with my wedding tackle and what I do with it? Most of the so called ethics issues seem to be either the use or contemplated use of wedding tackle.
Certainly ethics are important. However too many PC ideas have moved into the realm of ethics. At one time homosexuality was considered unethical. Other reasons that at that time it was considered a serious issue was the effect it would have on good order & discipline, medical issues (ie. blood transfusions)and because it could be used as blackmail. All of these concerns were then and ARE now still valid, but the thoughts of enough people has changed how it is perceived. A large majority of those against it are stifled due to politics.
What is ethical? Well that depends on the person. What works for one person may in no way work for another. Ethics can also be situation dependent. The old "would you steal food to feed your child" line.
Something that is offensive, isn't necessarily unethical or illegal. But it is often cast in that light.
Here is some things I consider to be unethical:
Poor Leadership. I don't care what the General does off duty as long as he/she doesn't do it to subordinates. I don't care if he/she sleeps around and is married (what he/she does or does not do is between them and their spouse if they have one), as long as he/she doesn't violate a position of trust. Some of our greatest military leaders, had something on the side. We as a military should stay out of politics. Why are company commanders worried about what congress thinks? They should be focues on the mission & the men... Leave politics to the politicians and keep them out of our business.
Double standards that exist with regard to infractions of the UCMJ. Things that a senior officer or NCO will be allowed to retire for, mean prison for those of lower rank.
Unclear, vague, non-specific orders, policies, rules and regulations. These lead to wasted subordinate effort, resources, time as well as leaving the door open to interpretation, which may be intentionally or unintentionally interpreted.
Information leaking. No I am not talking about Snowden, he didn't put out much that could not already be found. What I am talking about is information leaked by "Officials at the Pentagon, who have requested to remain anonymous, etc. etc. They are getting something for this, maybe money, probably sex, feeling of power etc.
Staying in your lane. This is a popular saying, however it is misused. If it effects me, my unit or the mission, it is MY lane.
The SHARP program. Reports are up which they say is a good thing, however with 85 to 90% are found to be unfounded, lies or abuse. When someone makes a false or unfounded allegation, there should be consequences that are equal to the the punishment the alleged would have received. But there isn't.
Poorly conducted investigations. We have all seen 15-6's that were slanted from the get go. Investigations were only the witnesses supporting the the supposed victim were interviewed, skewing the "facts" in favor of a predetermined outcome. Most often done in cases of supposed racism, sexual harassment/assault etc.
Why are these such an issue? The press is a factor... For the most part they hate us. The religious right, persons or groups with agendas, motives or goals who manipulate the system.
Using of other methods to punish, coerce and lay blame such as General Letters of Reprimand. There is no standard, like there is there is for the UCMJ. They are probably needed, but justification and a standard are necessary. If it won't even rate a company level art 15, then one of two things should happen, either A. A butt chewing and nothing more or B. The matter is completely dropped. No GLoR, Bad OER/NCOER etc. etc. These are often abused as a means of retribution. This is an abuse.
Political Correctness, emotions, feelings and the fear of offending have invaded in a big way the military. Concerns about what is or isn't offensive have been dragged into arena of ethics. And punishment follows. Just because it is something you would or would not do, does not make it ethical or unethical, right or wrong. It may not be approprate and ofend you, but that doesn't mean it is unethical.
I could go on and on.
I am assuming that taking away retirement benefits is intended to be a punishment for ethical infractions. Assuming away the shaky legal foundation for doing this action, we must look at the reasons we punish. There are four generally accepted reasons for punishment: Retribution, Rehabilitation, Incapacitation, and Deterrence. I am assuming that deterrence is the primary reason. Based on that assumption I see two problems with this argument.
First, deterrence is built on a risk/reward calculus. Is the reward of the unethical activity worth the risk involved? The problem with apply this to military personnel is that we are natural risk takers. No one else is stupid enough to go into a war zone for the limited amount of pay involved. It is very possible that the excitement of taking the risk is enough, in and of itself, to justify the risk.
Second, it assumes that monetary gain is a primary motivator for the senior military NCO/Officer. Again, compared to other professions, I don’t believe that money if the main reason people join the military.
A similar argument could be made about deterrence and publicity. In the good old days, if I screwed up royally my boss and my boss’s boss would know about it, and most of the staff and senior leadership would catch wind of it, but it would be handled quietly and I would be removed and told to retire. Nowadays, everyone in the world knows I screwed up. Assuming that pride in my time as a member of the military is at least as important to me as money, the additional pressure of public humiliation does not seem to be deterring anyone.
How about this: Bust them down to PFC (and I don’t mean Proud F’n Civilian) and make them stay a few years longer. This one hits all four of the reasons for punishment. There is retribution for the infraction, the time as an underling might help to rehabilitate the individual, at the rank of PFC they are incapable of doing much, and you have the deterrence both of the financial loss and loss of status. It probably won't work for the same reasons cited above, but it would be interesting.
Hard to read this article and not agree - but we have to also address the sad fact that we have far too many Sr Officers still serving (and potentially moving up - but definitely still increasing retirement benefits) despite *substantiated* breaches of ethics and conduct - I'm all for them retiring with any benefits earned if they have made it past 20, just at "the last grade honorably served" rank and benefits levels, which, for some, may have been a while ago - the AF's FOIA site has several reports posted in recent weeks that outline cases where General Officers and Colonels have been found lacking in their conduct, but remain in the uniform today...with the force reductions this year, you'd think these would be among the first asked to leave...before we reduce and cut others that may be of higher quality and character.
Agree strongly with your comment about confusing subjective ethical violations with criminal behavior which is clearly an ethical violation and a crime. With over 30 years of active duty service I witnessed a lot of behavior over the years. I didn't meet too many saints, though there were a handful who led unassailable lives from what I could see. I saw more than my fair share of criminals and recklessly unethical individuals who placed their personal interests over the mission and their men, but while I saw a lot over a long period of time they were still in a very small minority of those I served with. What concerns me most when I read about these ethical judgments is the impact of Christian Right movement on the Army in the 90s and the subsequent head hunting I saw take place in our ranks for those who didn't live their lives according to the ethics of the Christian Right. Unlike Christians though these headhunters were unforgiving, and I saw a lot of "good" people hurt by this.
I don't disagree with the author's argument, but I do think it will be hard to control where we draw the line. Our people are generally good, many are exceptional, and those who are criminals or use their position for self gain over mission must be removed from the ranks, but we need to take a chill pill on passing judgment on everyone's private behavior that doesn't impact the mission.
There seems to be some confusion between ethical and criminal behavior. If they are synonyms then just say what you mean, namely, retirement should be part of the criminal's punishment. Well, that already happens. As some have commented below, there is even a mechanism that limits retirement to the last grade honorably served. Retirement is compensation. The 20 year thing might be a relic that needs to be rethought, perhaps along the lines of pro-rated schemes that have been offered over the last few years (e.g. retirement accumulates from year 0 rather than year 20), but I doubt it will make a lick of difference in the propensity to deviate of a potential deviant. I have yet to see a man refuse an affair on account of retirement, but engage in one once retirement is secured.
More to the point made below by Robert Jones...strategic failure. Let's consider for a second that ethical failure is not, in fact, synonymous with criminality. Let's suppose that ethics embodies an entire constellation of norms for behavior (violating only some of which is criminal). Add to that constellation behaviors such as a professional liability, where one's failure to do as a leader, even when not criminal, is not just a matter of a "center of mass" OER but is considered an ETHICAL failure.
All this of course presumes we have an organizational culture strong enough to have norms that aren't just a matter of crime. And if we are content with it being simply crime, then we should be content with the UCMJ.
I am not sure if there is a greater amount of unethical conduct, or if we are simply more aware of it when it happens, or that those affected by it feel more impowered to report it and have some action occur of that reporting. Modern information makes covering up events like the Tilman friendly fire tragedy, or a senior leader's moral transgressions, fodder for a global jury to weigh, not just the transgressor's immediate supervisor.
I, for one, am far more concerned about the system's failure to hold senior leaders accountable for their strategic failures. We celebrate tactical expertise, and either write off strategic failure to "complexity" or as often, confuse some temporary lull in the action as success.
Ethical failures are going to happen, but they are being dealt with. Strategic failures,however, have become the norm, and no one seems to care... Certainly not Flag Officer selection boards or Senate confirmation processes.
The Johnson case is very instructive in that it shows what can be done by a court marshal panel to hit the guilty where it hurts, while protecting the soon to be former spouse. By making the punishment a fine, LTC Johnson's soon to be former spouse still received her 50% of his retired pay (which was still calculated on his O-6 with 25+ years service), while all of his 50% for the next 15 to 20 years or so was applied to the fine.
Retiring Officers Above the Grade of Warrant Officer Who Have Been the Subject of Adverse Information Since Their Last Promotion
An officer above the rank of warrant officer retires in the highest grade satisfactorily served, not necessarily the grade held the day before placement on the retired list.
When an officer applies for retirement, HRC reviews the officer's file to see if there is any adverse information generated since the officer's last promotion. If there is, AR 15-80 requires HRC to refer the officer's case to the AGDRB. Even if there is no adverse information in the OMPF, the officer's command or branch can refer the officer for a grade determination if there is adverse information reflecting conduct since the last promotion that is not required to be filed in the OMPF. The AGDRB will notify the officer what information the AGDRB will consider and provide the officer an opportunity to submit matters in support of retiring in their current grade. The officer does not have a right to appear before the AGDRB.
This has happened for many high profile cases in the recent past. It is not always well advertised that the Secretary of the Army took specific action on an officer and indicated that the officer successfully served one or two grades lower and consequently got their retirement reduced.
A recent example was COL James Johnson who was tried by court martial and ordered to pay a fine of $300K and received a letter of reprimand. The Army Grade Determination Board later reduced his retired rank to the last grade honorably held, namely Lieutenant Colonel. There are numerous other examples if you look for them:
Absolutely! You are right and in order for that to be done, the culture must change. So I suppose what we are all talking about here is US military culture as it exists today, especially the culture of impunity for senior generals. That must change, though short of getting whipped by the Red Chinese I don't see it happening. Maybe a leader or many leaders of genius will appear and effect the needed change short of a disaster. I hope so because from my civilian point of view a military that coddles corrupt senior leadership isn't very good at fighting and winning big fights, or little ones, because the guys on the line can only do so much to make up for pampered drones at the top.
What you suggest would hold true if it was done consistently over a few decades until it was cemented as a norm. Otherwise it will become what it only can, an opportunistic house cleaning. Being serious about standards can only be demonstrated by consistency, regardless of how hardcore your standards are or are not.
Ideally all your people will be people who "do the right thing because it is the right thing." And ideally they will just drift into the organization. But there is no ideally, only lousy reality. In that lousy reality lousy people are going to drift in along with the Kant fans. The lousy people must be punished and punished hard for two reasons. The first is to discourage other lousy people from drifting in. The second and in my view the more important, is to reassure the Kant fans that they are truly valued as are the sacrifices they make to do the right thing. An organization can prattle on all it wants about how it wants Kant fans but if it doesn't come down hard on the lousy people the words are empty. One of the things that really desiccates the soul of Kant fans is to see the lousy people pay no price. It not only drives them away, it keeps them from coming in.
From my forever a civilian point of view, the best thing that could happen to the American general officer corps would be for some of them to get sacked with no benefits at all and a general or dishonorable discharge. I don't know what the legalities of that would be but the effect would be to prove to everybody that the United States was actually serious about high standards.
Hmmm.. I do not recall thinking any differently about ethics before or after the 20 year mark.
I do not think there is a systemic fix to ethical problems. It is both an individual problem (and we could do well with a greater emphasis on the study of virtue ethics as many of our founding fathers did, but I digress) and a leadership problem. The responsibility for enforcing the standards for ethical behavior lies with leaders and the responsibility for ethical behavior lies with each individual.
I am not necessarily opposed to the "tool" that Major Messenger proposes but it still takes leadership to solve the problem. The violations still have to be identified and the rules still have to be enforced by leaders and then appropriate punishments can be administered to those who violate the rules. Will this punishment be a deterrent to bad ethical behavior? In my opinion if it is then we would not want those leaders in our military to begin with. I think we kind of want leaders who "do the right thing because it is the right thing" (Kant) and not base their ethical decision making analysis on whether their retirement benefits are going to be vulnerable.
Eminently sensible....but I believe that the Federal Courts have already ruled on this subject.
That being said, there might be some other solutions that would meet the requirements established by the courts.
Such as: GO/FO's retirements rank is set at O-6, and additional retired pay/rank is withheld pending completion of any outstanding investigation and Senate approval to retire at a specific rank.
For instance, under this rule GEN Kip Ward (former AFRICOM CDR) would have left the Army rolls as an O-6 in the spring of 2011 while his IG investigation was still underway, as opposed to staying on the rolls as an O-8 for the next 1 1/2 and eventually retiring as an LTG.
I might even suggest that the Senate approval has to be after a certain period of time (1 year per star perhaps) to properly evaluate a senior officers long term performance. After all, how many times have we seen the discovery of significant skeletons in the closing after an officer leave a job and has collected his/her OER?