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Can a commander overrule the Article 32 investigator's advice?

Our military defense law firm generally recommends exploring every possible strategy. For that reason, we believe that it is generally in an accused’s best interest to prepare for the Article 32 evidentiary hearing that precedes a court martial.

However, that right can be waived, as a recent story reminds us. The case involves an Air Force Lt. accused of sexual assault charges against an alleged same-sex victim. The victim claims that he never consented to the sexual acts because he was too intoxicated at the time.

The incident actually resulted in two previous Article 32 hearings. In both, the assigned military investigator concluded that there was not enough evidence to substantiate the allegations, probably resulting in an acquittal were the matter to proceed to a court martial. Accordingly, the investigator recommended the charges be dropped each time.

Inexplicably, the commander of the Air Force District of Washington overruled the investigator’s recommendations. The commander has ordered that the case proceed to a court martial. This time around, the accused declined the Article 32 hearing.

A military defense lawyer can often work to explore settlement options. In this case, the accused also requested permission to resign from the Air Force. The Air Force Secretary must approve such a request. Although prosecutors reportedly agreed to the proposal, the Air Force Secretary denied it. Fortunately, advocacy opportunities don’t end with initial setbacks. Another strategy might be filing a motion to dismiss the case for unlawful command influence. Although military prosecutors may be under pressure to pursue aggressive prosecutions, an experienced military defense lawyer can work to hold them to their burden of proof.

Source: Washington Blade, “Gay Air Force lieutenant faces August court martial,” Lou Chibbaro Jr., April 6, 2016

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David P. Sheldon | International Military Law Attorney

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