This article originally appeared on the U.S. Naval Institute blog here.
3 May 2017
It was the best of crimes, it was the worst of crimes (sorry, I couldn’t resist!). Actually, it wasn’t a crime at all, at least according to a navy judge. I’m talking, of course, about Navy SEAL Chief Petty Officer (SOC) Eddie Gallagher’s decision to conduct his reenlistment ceremony over the dead body of a slain ISIS combatant, whom he is accused of murdering post-surrender.
On 3 May 2017, Captain Aaron Rugh ruled that reenlisting over the body of an unarmed detainee you just killed is not a “prohibited act” under UCMJ Article 134. You know, that glorious “catch-all” article covers conduct prejudicial “to good order and discipline,” and that which could “bring discredit upon the armed forces.”
I am a millennial so, naturally, I am confused. I’m only a sea lawyer, but I read Article 134, and the “General Article” pretty clearly covers acts that represent a “breach of custom of the service.” The whole point is to allow commanders discretion in disciplining service members whose conduct goes against our military standard of conduct. Standard . . . such a tricky word. What is our standard for good order and discipline? How is it applied?
I’ve seen the social media comments. I’m sure many of you are going to tell me “shut it, you whiny snowflake, and let these heroes do their jobs . . . defending America is dirty business . . . so what if they have to break a few eggs. . . our boys need to be given the freedom and support to . . .” blah, blah, blah. I’ve heard this speech before. I’m not even questioning what happened before the ISIS fighter died. War is hell, enough said. But the postmortem re-enlistment ceremony is what got my attention, and I’m not saying it should be a war crime. But to say it’s not a violation of Article 134 because it’s not a “prohibited act?” You lost me. Interestingly, SOC Gallagher still stands accused of committing premeditated murder. So, Captain Rugh has created a situation where if he convicts Gallagher, he is saying that re-enlisting over the body of the person you just extra-judicially murdered is simply a matter of “extremely bad taste.” Say again, over?
Getting back to this idea of a standard of conduct, let’s fast forward a year.
13 April 2018
This is the day that Master Sergeant Robin Brown took her oath of enlistment using a dinosaur hand puppet. The video of her reenlistment ceremony went viral and, well, the rest is history. Within five days, Master Sergeant Brown was fired. The officer administering the oath, Colonel Kevin Blaser, was forced to retire. Even the cameraman was fired and given a letter of reprimand.
I, like many of you I’m sure, didn’t particularly like the optic of a hand puppet in a reenlistment ceremony. I would say it’s . . . what are the words . . . ”extremely bad taste.” It’s a mistake I’d expect to result in a one-sided conversation in my CO’s cabin. It would be like if I wore my ribbons upside down to the Capitol building for the State of the Union Address. Own up to it and move on. But Major General Terry Haston, Tennessee Air National Guard Adjutant General, didn’t think that was enough so he FIRED EVERYONE INVOLVED. He said “I am absolutely embarrassed that a senior officer and a senior NCO took such liberties with a time-honored military tradition. The Tennessee National Guard holds the Oath of Enlistment in the highest esteem because that oath signifies every service member’s commitment to defend our state, nation and the freedoms we all enjoy. Not taking this oath solemnly and with the utmost respect is firmly against the traditions and sanctity of our military family and will not be tolerated.”
Lieutenant General Scott Rice, Director of the Air National Guard, also weighed in: “Let me say, I’m equally shocked and dismayed by this event that mocks such a cherished and honorable occasion. The oath of office or enlistment not only signifies our commitment to our nation, but pays respect to our fellow service members and to those who came before us.”
Wise words, gentlemen. I couldn’t agree more. Or could I? I’m so confused.
What are the differences between the two ceremonies? Well, for starters, SOC Gallagher is on trial for war crimes so it’s not like he’s getting away scott-free, but as far as I know neither he, nor anyone else involved (Lieutenant Portier courts martial pending), was disciplined for the reenlistment ceremony. The Tennessee Air National Guard killed three careers for Master Sergeant Brown’s ceremony. Still confused . . .
Second, the video of Master Sergeant Brown’s reenlistment ceremony went viral. Media scrutiny followed. Listen, I grew up in a military family. I get the concept of “perception is reality,” but, people, we need to get a hold of ourselves. This is the age of social media and lighting fast mass communication. We can’t keep wielding a career-killing butcher knife every time we see an unflattering headline. OR . . . if we truly believe in the “sanctity” of “such a cherished and honorable occasion” then shouldn’t we react with the same discipline even there’s no video all over the internet? STILL confused . . .
Third, SOC Gallagher is Special Forces. Master Sergeant Brown is no. I know this really shouldn’t matter, but to some people, clearly it does. Just look at the tone of comments following the news of each event. Overwhelming condemnation for Master Sergeant Brown, and overwhelming support for SOC Gallagher. Of course, we have to take public opinion with a grain of salt, but official decisions appear to reflect these opinions. Part of it, I think, is an element of “hero worship” for our special warfare operators. Don’t get me wrong, these people are patriots who sacrifice more than most of us will ever know, and deserve our utmost respect, but they do not deserve—nor do they want—to be worshipped. Hero worship, fueled by Hollywood fiction, fosters a culture of infallibility that threatens to damage the SOF community. Maybe the best we can do is hold them to the same standard of “good order and discipline” that we hold everybody else. I don’t know, I’m still confused . . .
Finally, thanks to the intrepid reporting of the military blog, Task & Purpose, we have several other examples of goofy, strange, and irreverent reenlistment ceremonies that did not result in public condemnation and discipline. From what I can tell, our “standard” for good order and discipline is about as standard as our uniforms are uniform. Oh, and there’s one last difference between Master Sergeant Brown and all the people reenlisting in the above linked T&P article (and SOC Gallagher). I’ll let you think about it. Maybe there were two different standards all along?