Military Justice May Have Some `General' Flaws

The U.S. military has permitted generals and admirals suspected of criminal misconduct to avoid courts-martial and retire while sending lower-ranking personnel to prison for similar offenses, according to a study of cases by the Dallas Morning News.

Among the alleged breaches of military law that have not been prosecuted are sexual misbehavior, misuses of aircraft, neglect of criminal investigations and attempts to influence the courts-martial of subordinates.

The military defends its system of justice as tough but fair. It says each case is judged on the facts, not on the rank of the individual involved.

In one case, an Air Force general in Austin, Texas, known for being tough on consensual sex crimes - such as adultery, sodomy or romancing even an unmarried subordinate - was allowed to retire after an investigation concluded he had sexually harassed several female subordinates.

In another, a Marine Corps general retired after an investigation showed he used military aircraft for personal travel. The same general had recently suspended two top aides for misusing planes. One aide committed suicide.

The Dallas Morning News reviewed those cases and about a dozen others made public over the past decade to examine the approach the military services take toward accusations of wrongdoing by their most senior officers.

The review was part of a yearlong study by the Dallas Morning News into alleged abuses of military authority. It found that out-of-court punishments are the norm when the alleged offender wears stars.

For example:

-- The Navy allowed three admirals to retire in September despite the Pentagon inspector general's findings that each officer failed to properly investigate the Tailhook Association sexual-abuse scandal.

-- The Marine Corps allowed Lt. Gen. Royal Moore, commander of its air units in the Persian Gulf War, to retire in July after investigators found he had falsified a flight qualification test then lied about it.

-- The Air Force let Lt. Gen. Peter Kempf, commander of the 12th Air Force in Austin, retire in November 1990 after investigators found he had engaged in "inappropriate conduct" with female subordinates.

-- The Army permitted Maj. Gen. Thurman Anderson to retire despite the findings of military courts that he had improperly attempted to influence drug prosecutions on a mass scale while commander of the 3rd Armored Division.

Each of those offenses could have led to the equivalent of a felony trial and a prison term upon conviction. Instead, each suspected act of wrongdoing was handled administratively without criminal charges being filed.

A few senior officers have been charged with crimes in the past 20 years. But it is difficult to say how many because the military does not compile statistics on the disciplining of generals and admirals. Several military-justice officials said they could not recall any general or admiral being court-martialed since the 1950s. None has ever served time in the century-old military prison at Fort Leavenworth, Kan.

Without commenting on individual cases, the military maintained that the enforcement of its criminal code is based on the facts of each case, not whether the offender wears stripes or stars on his uniform.

"We do not have a dual system of justice," said Lt. Col. Doug Hart, a Defense Department spokesman. "There is one Uniform Code of Military Justice which covers all members of the military."

Authority for prosecuting criminal conduct remains with the services. And, when the alleged misconduct involves a general or admiral, only a more senior general or admiral may determine how the case will be handled.

Critics of military justice contend the system lacks impartiality and is riddled with favoritism toward the upper ranks. Air Force Maj. Gregg Reinecke charged there was "a sliding scale of justice."

Reinecke was an Air Force judge until he was removed in December 1990 after accusing the service's chief trial judge of improperly attempting to influence his sentencing practices.

One of the courts-martial that Reinecke presided over was that of a staff sergeant at Mountain Home Air Force Base in Idaho who was accused of consensual sodomy with a teen-age Air Force dependent. The court-martial panel convicted the sergeant and assessed his punishment at one year in prison and a bad conduct discharge. The sentence was upheld by Gen. Kempf, who also had authorized the court-martial.

Kempf, who was based at Bergstrom Air Force Base in Austin, had a reputation for favoring strict discipline of consensual sex offenses, according to Reinecke.

"Kempf was a flamer," said Reinecke, who is now a legal adviser at Peterson Air Force Base in Colorado Springs, Colo. "Everything was gung-ho, max to the wall, crucify everybody."

What Reinecke did not know until after the trial was that Kempf was suspected of sexual misconduct with several women at Bergstrom. That information was not made public until Kempf was relieved of his command in November 1990.

Kempf now lives outside Las Vegas and draws more than $60,000 in annual retirement pay. He also retained his medical benefits, commissary and recreation facility privileges and may travel free on military aircraft.

He could not be reached for comment during the past week.

The differing fates of Kempf and the young sergeant have left a bitter taste with Reinecke, an Air Force Academy graduate.

"There is no sense of equal justice in the Air Force," he said. "An enlisted person, or a lower-level officer, they'd have been hung out to dry for doing something like that.

"If we want to talk about general deterrence, why don't we put a couple of generals on trial? That would be deterrence."

Mark Waple, a former Army lawyer in Fayetteville, N.C., shared Reinecke's concern about the evenhandedness of treatment for generals and subordinates who commit similar offenses. Waple represents Army Capt. John Gargaro, who is serving a one-year prison term for bringing back Iraqi automatic rifles in violation of a directive against collecting "war trophies" during Operation Desert Storm.

Gargaro is one of more than 280 Persian Gulf War veterans to be prosecuted for weapons violations. He is one of several offenders to receive jail time.

One of those who won't be spending time behind bars is Air Force Maj. Gen. Donald Kaufman, the highest-ranking officer to be charged with taking captured AK-47 assault rifles as trophies from the Gulf War.

In late September, Maj. Gen. James Chambers, commander of the 17th Air Force, announced that Kaufman would face a private hearing rather than a court-martial. An Air Force spokeswoman declined to say Wednesday whether there had been further legal action but said Kaufman remained on active duty.

Waple called the decision not to court-martial Kaufman evidence of "justice by rank" in the military. He said he had asked the House Armed Services Committee to investigate the handling of war-trophy cases.

He contended that the disparity stems from the value the services place on senior officers vs. junior officers or enlisted personnel.

"A corporal in the Marine Corps does not have a cheering section," Waple said. "He doesn't have the professional contacts who are more senior. He has no clout to influence the decision-making."

Brig. Gen. Wayne Adams was commander of all Marine air bases in the Western United States when he came under investigation in mid-1991 for allegedly using military aircraft for personal trips.

In January 1991, Adams suspended two aides at the El Toro Marine Air Station near Los Angeles for using planes for personal benefit. One aide, Col. James Sabow, shot himself to death after his suspension. The second aide, Col. Joseph Underwood, was fined by Adams and later retired.

In August 1991, Adams became the first Marine Corps general in more than a dozen years to be reprimanded for misconduct involving the personal use of aircraft. He retired in February.

He, too, could not be located for comment.

Joseph Metcalf, a retired Navy vice admiral who commanded U.S. forces in the 1983 invasion of Grenada, said cases like Adams' demonstrate that the military takes a hard line on even small sins by senior officers.

Metcalf, a 41-year Navy veteran, found himself in the media spotlight after it was disclosed that he was reprimanded for bringing back war trophies from Grenada while lower-ranking personnel had received jail terms.

Despite the experience, Metcalf remains bullish on the military-justice system, which he calls tough but fair.

"I know of all kinds of senior officers who have been brought to justice that you guys (in the news media) don't know about," Metcalf said.

"Flag officers get fired (from their posts) and dismissed from the service all the time, and it looks perfectly normal" - like a retirement, he said.

"But, by God, they have been disciplined. And quite frankly, the system works better that way."